           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2013 Term
                                   ______________                         FILED
                                                                      October 8, 2013
                                     No. 11-1674                       released at 3:00 p.m.

                                   ______________
                                                                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA

                             STATE OF WEST VIRGINIA,
                              Plaintiff Below, Respondent

                                          v.

                         CHRISTOPHER WAYNE BOWLING,
                             Defendant Below, Petitioner

          _______________________________________________________

                    Appeal from the Circuit Court of Raleigh County
                      The Honorable John A. Hutchison, Judge
                           Criminal Action No. 10-F-142-H

                                AFFIRMED
          _______________________________________________________

                             Submitted: September 10, 2013
                                Filed: October 8, 2013

Richard W. Weston, Esq.                        Kristen Keller, Esq.
Weston Law Office                              Raleigh County Prosecuting Attorney
Huntington, West Virginia                      Beckley, West Virginia
Counsel for the Petitioner                     Counsel for the Respondent

G. Todd Houck, Esq.
Mullens, West Virginia
Counsel for the Petitioner

The Opinion of the Court was delivered PER CURIAM.

JUSTICE WORKMAN and JUSTICE KETCHUM dissent and reserve the right to file
dissenting opinions.
                              SYLLABUS BY THE COURT


              1.     “Article III, Section 14 of the West Virginia Constitution, when read

in light of our open courts provision in Article III, Section 17, provides a clear basis for

finding an independent right in the public and press to attend criminal proceedings.

However, there are limits on access by the public and press to a criminal trial, since in

this area a long-established constitutional right to a fair trial is accorded the defendant.”

Syl. pt. 1, State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544

(1980).



              2.     “On a closure motion, the ultimate question is whether, if the pretrial

hearing is left open, there is a clear likelihood that there will be irreparable damage to the

defendant’s right to a fair trial. Factors bearing on the issue of irreparable damage include

the extent of prior hostile publicity, the probability that the issues involved at the pretrial

hearing will further aggravate the adverse publicity, and whether traditional judicial

techniques to insulate the jury from the consequences of such publicity will ameliorate

the problem.” Syl. pt. 2, State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267

S.E.2d 544 (1980).



              3.     “A trial court’s failure to remove a biased juror from a jury panel, as

required by W. Va.Code § 62–3–3 (1949) (Repl.Vol.2010), does not violate a criminal

defendant’s right to a trial by an impartial jury if the defendant removes the juror with a


                                               i
peremptory strike. In order to obtain a new trial for having used a peremptory strike to

remove a biased juror from a jury panel, a criminal defendant must show prejudice. The

holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is

expressly overruled.” Syl. pt. 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448

(2013).



              4.     “‘The action of a trial court in admitting or excluding evidence in the

exercise of its discretion will not be disturbed by the appellate court unless it appears that

such action amounts to an abuse of discretion.’ Syllabus point 10, State v. Huffman, 141

W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v.

Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. pt. 2, State v. Doonan, 220 W. Va.

8, 640 S.E.2d 71 (2006).



              5.     “‘Jury instructions on possible guilty verdicts must only include

those crimes for which substantial evidence has been presented upon which a jury might

justifiably find the defendant guilty beyond a reasonable doubt.’” Syl. pt. 1, in part, State

v. Leonard, 217 W. Va. 603, 619 S.E.2d 116 (2005) (quoting syl. pt. 5, State v. Demastus,

165 W. Va. 572, 270 S.E.2d 649 (1980).



              6.     “Under the Confrontation Clause contained within the Sixth

Amendment to the United States Constitution and Section 14 of Article III of the West

Virginia Constitution, a testimonial statement is, generally, a statement that is made

                                              ii
under circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Syl. pt. 8, State v. Mechling, 219 W.

Va. 366, 633 S.E.2d 311 (2006).



              7.     “Where an offer of evidence is made under Rule 404(b) of the West

Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia

Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the

trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va.

688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the

trial court must be satisfied by a preponderance of the evidence that the acts or conduct

occurred and that the defendant committed the acts. If the trial court does not find by a

preponderance of the evidence that the acts or conduct was committed or that the

defendant was the actor, the evidence should be excluded under Rule 404(b). If a

sufficient showing has been made, the trial court must then determine the relevancy of

the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and

conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If

the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should

instruct the jury on the limited purpose for which such evidence has been admitted. A

limiting instruction should be given at the time the evidence is offered, and we

recommend that it be repeated in the trial court’s general charge to the jury at the

conclusion of the evidence.” Syl. pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d

516 (1994).

                                             iii
             8.     “To the extent that any of our prior cases could be read to allow a

defendant to invoke his Miranda rights outside the context of custodial interrogation, the

decisions are no longer of precedential value.” Syl. pt. 3, State v. Bradshaw, 193 W. Va.

519, 457 S.E.2d 456 (1995).




                                            iv
Per Curiam:


              This case is before the Court on appeal by the petitioner, Christopher

Bowling (“Mr. Bowling”), of the November 10, 2011, order of the Circuit Court of

Raleigh County convicting Mr. Bowling of first degree murder by use of a firearm of his

wife, Tresa Bowling (“Ms. Bowling”). He did not receive a recommendation of mercy.

In this appeal, Mr. Bowling raises seven assignments of error related to pretrial hearing

procedure, impaneling the jury, the exclusion of evidence, and witness testimony. The

State asserts that no error was committed below.



              After a thorough review of the record presented for consideration, the

briefs, the legal authorities cited, and the arguments of Mr. Bowling and the State, we

find that while the circuit court erred by admitting certain testimony as detailed herein,

the errors are harmless and do not warrant reversal of this case.   Therefore, we affirm

Mr. Bowling’s conviction.



                                            I.


                 FACTUAL AND PROCEDURAL BACKGROUND


              The petitioner, Christopher “Chris” Wayne Bowling, shot and killed his

wife, Tresa Bowling, on the evening of January 31, 2010, in Daniels, West Virginia. The

couple had attended a funeral together earlier that day, and afterward they spent time

drinking with friends. Sometime later, Ms. Bowling left in the couple’s vehicle to pick


                                            1
up her two children to take them home. Mr. Bowling rode home with his friend, Phillip

Jones (“Mr. Jones”) at approximately 10:40 p.m., and the two men sat in Mr. Jones’

vehicle in the driveway talking for approximately 20 minutes. Mr. Jones left, and Mr.

Bowling entered the home.



             Mr. Bowling claimed that after entering the house, he retrieved a soda from

the garage, and then he joined his wife who had been asleep on the couch. While she was

lying on the couch, he sat down on the couch with her in the area of her hip. As he sat

down, he removed the handgun he routinely kept in his back pocket, a Kel-Tec Model P-

3AT. Upon taking the gun from his pocket, he noticed that the gun’s slide was out of

battery.1 According to Mr. Bowling’s version of events, while he attempted to right the

slide, the gun fired unexpectedly, shooting Ms. Bowling in the head. He avers that he did

not realize he was pointing the fully loaded gun at his wife’s head—located no more than

a couple of feet from the muzzle of the weapon—when the gun discharged.




      1
         Mr. Bowling’s expert, Amy Driver, testified as to what it means when a gun is
out of battery:

                     Out of battery just means . . . [f]or a semi-automatic
             weapon, the gun being in battery means that its’ ready to fire,
             and that means that the slide is fully forward, the chamber is
             closed. And being out of battering is any condition where the
             slide is not fully forward and the chamber closed.


                                           2
             At 11:35 p.m., the Raleigh County Emergency Operations Center (“EOC”)

received a 911 call from the Bowling residence. The caller disconnected the phone call

before speaking, prompting EOC to immediately call back. Mr. Bowling answered

EOC’s call and informed them that he had accidentally shot his wife. EOC instructed

Mr. Bowling to place pressure on the wound with a towel to slow the bleeding. EOC also

dispatched police and rescue services to the Bowlings’ home. During the call, Mr.

Bowling requested that the operator dispatch specific police officers he knew personally.



             When police arrived at the Bowlings’ home, they found Ms. Bowling alive

but bleeding profusely from the head wound and suffering from labored breathing.

Police witnessed no indications that Mr. Bowling had taken any actions to slow his wife’s

bleeding. While the police assisted Ms. Bowling and processed the scene, Mr. Bowling

was handcuffed and placed in the back of one of the police cars present. At that time he

was not placed under arrest. Ms. Bowling was transported via ambulance to a local

hospital. Mr. Bowling’s mother arrived to care for the two children.



             About an hour after being dispatched to the Bowling residence, the police

drove Mr. Bowling to the police station where he was questioned about the shooting.

Although he was not under arrest at this point, Mr. Bowling was read his Miranda rights,2

      2
          Miranda v. Arizona, 384 U.S. 436 (1965) (requiring that upon taking a person
into custody, the police must inform that person that, among other things, he/she has the
right to remain silent).


                                            3
which he waived. Meanwhile, despite the doctors’ efforts to save her life, Ms. Bowling

died of her wound at the hospital. At no time during the questioning did Mr. Bowling

inquire as to the wellbeing of his wife or the two children. After the police questioning

ended in the early hours of February 1, 2010, Mr. Bowling left the police station with a

friend. The police arrested Mr. Bowling on February 2, 2010, for the murder of Ms.

Bowling.



              Pretrial hearings were held from April 26, 2011, to April 28, 2011, to

evaluate the testimony of numerous witnesses that the parties intended to introduce at

trial. Trial commenced on June 21, 2011. The State called more than twenty witnesses

to testify at trial. The first of the State’s witnesses was Ms. Bowling’s oldest child, ten-

year-old M.L.,3 who was present in the house at the time of the shooting. The child

testified that on the night of the shooting, directly before the shooting occurred, she heard

Mr. and Ms. Bowling talking and heard Ms. Bowling proclaim, “It’s not my fault,”

directly before the gunshot rang out. Many of the State’s other witnesses testified to

previous acts of violence they had witnessed Mr. Bowling direct toward Ms. Bowling or

others. The court allowed the admission of this testimony as intrinsic evidence of the

crime committed.




3
 Consistent with this Court’s practice in cases involving sensitive matters, we refer to the
child using her initials.


                                             4
              At trial, Mr. Bowling asserted the defense that the shooting was accidental.

In addition to the presentation of other defense witnesses, Mr. Bowling testified on his

own behalf. At the end of the trial, the jury found Mr. Bowling guilty of first degree

murder, and it did not recommend mercy. By order dated November 10, 2011, Mr.

Bowling received a life sentence without the possibility of parole. He now appeals his

conviction to this court.



                                            II.


                               STANDARD OF REVIEW



              On appeal, Mr. Bowling raises seven assignments of error. Because this

case requires the examination and application of numerous standards of review to the

assignments of error, we will discuss each of the appropriate standards in conjunction

with our analysis of the individual issues below.


                                            III.


                                       ANALYSIS



              As stated above, Mr. Bowling raises seven assignments of error.            He

challenges the pretrial in camera hearing procedure; the jury selection process; the circuit

court’s decision to exclude certain evidence of the firearm’s malfunctions; and the

testimony of various witnesses as testimonial hearsay, as improperly admitted pursuant to




                                             5
W. Va. R. Evid. 404(b), and as irrelevant and prejudicial. For the reasons explained in

full below, we conclude that the circuit court did not commit any reversible error.



                               A. Pretrial In Camera Hearing

                During pretrial hearings taking place between April 26, 2011, and April 28,

2011, the parties presented the testimony of numerous witnesses for the purpose of

determining the admissibility of the testimony at trial. A large portion of the testimony

was categorized by the parties as W. Va. R. Evid. 404(b) (“Rule 404(b)”)4 “bad

character” evidence. This Court held in syllabus point 2 of State v. McGinnis, 193 W.

Va. 147, 455 S.E.2d 516 (1994), that when parties wish to use Rule 404(b) evidence at

trial, an in camera pretrial hearing must be held to evaluate the admissibility of the

evidence.5



                Mr. Bowling’s first assignment of error is that the trial court failed to hold

the pretrial hearings in camera as is required by McGinnis. Mr. Bowling argues that the

hearings were not in camera because members of the press were permitted to attend. Mr.

Bowling believes the press should have been excluded from the hearings. He asserts that

the press coverage of the hearing may have affected the opinions of those who were

ultimately selected to sit on the jury, stating the following in his brief to this Court:

       4
           The pertinent text of Rule 404(b) is quoted infra Part III.F.
       5
           The full text of syllabus point 2 of McGinnis is quoted infra Part III.F.


                                                6
                       During voir dire, it was evident that every juror with
               the exception of three, had heard about this case, either
               through the newspaper, tv news or while sitting in the
               courtroom talking among other prospective jurors – while the
               parties were in the process of individual voir dire of the
               prospective jurors. Additionally, and prior to individual voir
               dire, a substantial percentage of each of the three panels had
               made up their minds as to Appellant’s guilt.



               The State rejects Mr. Bowling’s position, arguing instead that members of

the press have a constitutional right to be present at hearings like the pretrial hearings

contested in this case. The State cites to syllabus points 1 and 2 of State ex rel. Herald

Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980), in support of its position,

which state:

                      1. Article III, Section 14 of the West Virginia
               Constitution, when read in light of our open courts provision
               in Article III, Section 17, provides a clear basis for finding an
               independent right in the public and press to attend criminal
               proceedings. However, there are limits on access by the
               public and press to a criminal trial, since in this area a long-
               established constitutional right to a fair trial is accorded the
               defendant.

                       2. On a closure motion, the ultimate question is
               whether, if the pretrial hearing is left open, there is a clear
               likelihood that there will be irreparable damage to the
               defendant’s right to a fair trial. Factors bearing on the issue of
               irreparable damage include the extent of prior hostile
               publicity, the probability that the issues involved at the
               pretrial hearing will further aggravate the adverse publicity,
               and whether traditional judicial techniques to insulate the jury
               from the consequences of such publicity will ameliorate the
               problem.




                                               7
              This Court has recognized that in the context of excluding persons from the

courtroom during proceedings, a circuit court’s decision is subject to review for abuse of

discretion and that reversal is not warranted absent a showing of prejudice. See State v.

Omechinski, 196 W. Va. 41, 48 & n.12, 468 S.E.2d 173, 180 & n.12 (1996); see also W.

Va. R. Evid. 615.



              Both the United States Constitution and the West Virginia Constitution

confer upon defendants the right to an impartial jury. U.S. Const. amend. VI; W. Va.

Const. art. III, § 14. Upon carefully reviewing Mr. Bowling’s brief to this Court and his

oral argument, we find that Mr. Bowling does not allege that the impaneled jury was not

impartial; he argues only that jurors may have made up their minds about Mr. Bowling’s

case prior to trial as a result of the press coverage during the pretrial hearings. He has

alleged no actual prejudice. Further, this Court has examined the record presented, and

we cannot find any evidence of prejudice. Having failed to point to any prejudice that

would constitute reversible error, we conclude reversal is not warranted on this point.



                                    B. Jury Selection

              Mr. Bowling alleges that the circuit court committed reversible error by

failing to strike two potential jurors for cause. Mr. Bowling asserts that the two potential

jurors expressed bias justifying their removal from the jury panel by the court. The two

jurors ultimately did not sit on the jury; peremptory strikes were used to remove them,



                                             8
although the record is unclear as to whether Mr. Bowling or the State used the

peremptory strikes.



              The Court reviews challenges to jurors under the following standard of

review:

                     “In reviewing the qualifications of a jury to serve in a
              criminal case, we follow a three-step process. Our review is
              plenary as to legal questions such as the statutory
              qualifications for jurors; clearly erroneous as to whether the
              facts support the grounds relied upon for disqualification; and
              an abuse of discretion as to the reasonableness of the
              procedure employed and the ruling on disqualification by the
              trial court.” State v. Miller, 197 W.Va. 588, 600–01, 476
              S.E.2d 535, 547–48 (1996).

State v. Sutherland, 231 W.Va. 410, 745 S.E.2d 448, 450 (2013).



              In our Sutherland decision, we held:

                     A trial court’s failure to remove a biased juror from a
              jury panel, as required by W. Va.Code § 62-3-3 (1949)
              (Repl.Vol.2010), does not violate a criminal defendant’s right
              to a trial by an impartial jury if the defendant removes the
              juror with a peremptory strike. In order to obtain a new trial
              for having used a peremptory strike to remove a biased juror
              from a jury panel, a criminal defendant must show prejudice.
              The holding in Syllabus point 8 of State v. Phillips, 194
              W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.

Id., syl. pt. 3. Sutherland makes clear that unless a criminal defendant shows prejudice, a

trial court does not commit reversible error when it fails to strike a juror for cause where

a party uses a peremptory strike to eliminate the offending juror from the jury panel. In

the case sub judice, it is unnecessary to evaluate whether the jurors with whom Mr.

                                             9
Bowling takes issue were actually biased because they did not sit on the jury, and Mr.

Bowling does not allege that he suffered any prejudice as a result of using his peremptory

strikes to strike the two jurors. Nowhere in his brief does Mr. Bowling allege that the

jury that heard his case was biased in any way. Mr. Bowling’s counsel conceded at oral

argument that application of Sutherland, which was decided by the Court after Mr.

Bowling filed his brief, operates against his success on this issue. Therefore, we find that

the circuit court did not commit reversible error by refusing to strike the two jurors for

cause.



                           C. Firearm Malfunction Evidence

              At trial, Mr. Bowling presented the testimony of an expert witness, Amy

Driver, regarding the function of Mr. Bowling’s gun. The function of the gun was an

essential piece of Mr. Bowling’s defense—that the gun accidently and unexpectedly fired

when he righted the slide—and he intended to use Ms. Driver’s testimony to support that

defense. Mr. Bowling’s counsel explained the exact purpose of Ms. Driver’s testimony

to the circuit court in camera as follows:

                     [DEFENSE COUNSEL]: . . . [W]e’re not going to
              claim this gun went off through some miracle. We’re going to
              claim this gun had a faulty slide. When the slide was righted,
              instead of having his hand on the trigger guard, as he thought
              he did, he had it on the trigger. And Ms. Driver will testify
              when that slide went back into place and was righted, the gun
              was ready to fire. That’s our whole case. We’re not going to
              say this gun just went off through magic, and Ms. Driver is
              not going to say that.
                     THE COURT: Let me get this straight. You’re saying
              that your position is, is he thought he had it on the trigger

                                             10
              guard, but he actually had it on the trigger, with the trigger
              depressed; is that correct?
                     [DEFENSE COUNSEL]: That’s correct.



              Prior to trial, the specific points of Ms. Driver’s proposed testimony were

evaluated. Questioning of Ms. Driver during the in camera session established three

scenarios through which the court attempted to ascertain whether the gun would fire: (1)

while the gun is out of battery, a person fully squeezes the trigger and holds it in that

position, then rights the slide; (2) while the gun is out of battery, a person partially

squeezes the trigger and holds it in that position, then rights the slide; and (3) while the

gun is out of battery, no pressure is placed on the trigger and the slide is righted. With

regard to the first two scenarios, Ms. Driver’s testimony appears to be somewhat

inconsistent. During a April 27, 2011, pretrial hearing, she answered in the affirmative

when the State’s counsel asked, “If the pistol suddenly . . . pops back ‘in battery’ while

the person holding the pistol still has their finger on the trigger with a sufficient amount

of pressure, the pistol ‘will fire.’” However, when asked specifically about scenarios (1)

and (2) during in camera questioning on June 24, 2011, Ms. Driver answered that she did

not know if the gun would fire in those scenarios because she did not test the gun that

way. Regarding the third scenario, she testified that the gun would not fire unless some

pressure was applied to the trigger. Ms. Driver repeatedly told the court that the gun

would not fire under any scenario unless pressure was applied to the trigger.




                                            11
             The court decided not to allow defense counsel to indicate that the weapon

was defective in its operation with regard to whether or not it would inadvertently

discharge because of a mechanical malfunction. The court said:

                     Ms. Driver is not going -- and you’re not going to,
             from the defense side, be able to argue to the jury in your
             opening that this weapon, because it was malfunctioning in
             some way, that it would discharge without someone pulling
             the trigger. That trigger had to have been pulled, either
             partially or fully, before it would discharge.
                     At the prior proceeding, it was clear that the defendant
             wanted to argue that simply by slamming it back into battery,
             that the gun discharged. That is, in fact, not her opinion. She
             can’t say whether or not simply slamming it back into battery
             would cause it to discharge without there having been some
             sort of action by the person holding that weapon, in pulling
             the trigger across its track. The trigger had to be pulled at
             some point.
                     What the Court is concerned about, and what the Court
             desired additional testimony on, was whether or not it was
             Ms. Driver’s opinion that that [sic] being out of battery and
             pushing that weapon or forcing that weapon back into battery
             would cause the weapon to discharge without the trigger
             being pulled. That is clearly not her opinion and you cannot
             argue that to the jury.



             At trial, defense counsel attempted to question Ms. Driver on whether a

malfunction in the gun, which involved springs protruding from the gun, would

contribute to the gun accidently firing.     In response, the court conducted another

examination of Ms. Driver on July 14, 2011, in camera. Following questioning, the court

instructed that Ms. Driver could not comment on the malfunction:

                    The Court has ruled previously on the guide rod
             springs. The fact that the guide rod springs protruded from the
             front of the weapon - the testimony is clear - did not cause the

                                           12
              weapon to inadvertently discharge. It’s clear, short stroke or
              full stroke, for the weapon to have discharged, somebody had
              to either pull a short stroke or pull a full stroke. So the springs
              don’t mean anything once that gun was back in battery. . . .
              [T]he problem that you have is, is that Ms. Driver is pretty
              much required to testify in conformity with her report, with
              the limitation that I’m not going to let her talk about the guide
              rod springs.



              On appeal, Mr. Bowling argues that the circuit court’s decision to exclude

testimony by Ms. Driver establishing that the gun did not function correctly prevented

him from putting on a full and fair defense. We review a circuit court’s decision to

exclude evidence for an abuse of discretion:

                     “The action of a trial court in admitting or excluding
              evidence in the exercise of its discretion will not be disturbed
              by the appellate court unless it appears that such action
              amounts to an abuse of discretion.” Syllabus point 10, State v.
              Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on
              other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435,
              452 S.E.2d 893 (1994).

Syl. pt. 2, State v. Doonan, 220 W. Va. 8, 640 S.E.2d 71 (2006); see also State v.

Browing, 199 W. Va. 417, 423, 485 S.E.2d 1, 7 (1997) (“‘It is well settled that decisions

regarding the admission and exclusion of evidence are peculiarly within the province of

the trial court and are not to be reversed on appeal absent an abuse of discretion. Thus,

evidentiary decisions of a trial court are entitled to substantial deference.’ McDougal [v.

McCammon], 193 W.Va. [229,] 235, 455 S.E.2d [788,] 794, n. 5.”).




                                              13
              In this case, we find no error in the circuit court’s decision to exclude

evidence of malfunctions within the gun. Ms. Driver’s testimony during pretrial and in

camera hearings established that the malfunctions in the gun would not have contributed

to the gun firing without someone placing pressure on the trigger.             Ms. Driver’s

testimony confirmed that the gun would not fire unless pressure had been applied to the

trigger.   Thus, the malfunctions in the gun were irrelevant, and introduction of the

malfunctions might have confused the jury. We conclude that the circuit court did not

abuse its discretion by excluding this testimony.



                              D. Manslaughter Instructions

              Mr. Bowling assigns as error the circuit court’s decision to deny instructing

the jury on manslaughter. Syllabus point 1 of State v. Leonard, 217 W. Va. 603, 619

S.E.2d 116 (2005), in part, establishes that “‘[j]ury instructions on possible guilty verdicts

must only include those crimes for which substantial evidence has been presented upon

which a jury might justifiably find the defendant guilty beyond a reasonable doubt.’”

(Quoting syl. pt. 5, State v. Demastus, 165 W. Va. 572, 270 S.E.2d 649 (1980)). In

Leonard, we said that when reviewing a lower court’s decision to give an instruction,

“the giving or refusing of a particular instruction is subject to an abuse of discretion

standard.” 217 W. Va. at 607, 619 S.E.2d at 120.



              Mr. Bowling argues on appeal that he was entitled to a voluntary

manslaughter instruction. The essential element of voluntary manslaughter is intent

                                             14
without malice. Syl. pt. 3, State v. McGuire, 200 W. Va. 823, 490 S.E.2d 912 (1997) (“It

is intent without malice, not heat of passion, which is the distinguishing feature of

voluntary manslaughter.” (In part).). Mr. Bowling cannot prevail on this claim because

during trial, no evidence was presented to show that Mr. Bowling intended to shoot his

wife without malice. Therefore, the circuit court did not abuse its discretion by refusing

to give a voluntary manslaughter instruction.



              Mr. Bowling also argues that the jury should have been instructed on

involuntary manslaughter. “The offense of involuntary manslaughter is committed when

a person, while engaged in an unlawful act, unintentionally causes the death of another,

or where a person engaged in a lawful act, unlawfully causes the death of another.” Syl.

pt. 7, State v. Barker, 128 W. Va. 744, 38 S.E.2d 346 (1946). Mr. Bowling posits that he

accidently shot his wife by committing “the unlawful act of (1) firing his weapon in the

home/or . . . (2) wantonly brandish[ing] his weapon in the home.” Option (1) relies on

W. Va. Code § 20-2-58 (1985), which is within the article of the Code regulating wildlife

resources. That section states, in part “It shall be unlawful for any person to shoot or

discharge any firearms across or in any public road in this state, at any time, or within

four hundred feet of any schoolhouse or church, or within five hundred feet of any

dwelling house . . . .” This section is clearly inapplicable to this case in that it regulates

hunting and only discusses shooting outside of a house, not inside. Option (2) relies on

W. Va. Code § 61-7-11 (1994), which reads, in part, “It shall be unlawful for any person

armed with a firearm or other deadly weapon, whether licensed to carry the same or not,

                                             15
to carry, brandish or use such weapon in a way or manner to cause, or threaten, a breach

of the peace.” This section is also inapplicable because it requires some level of intent;

one cannot accidently brandish a gun. The petitioner’s sole defense at trial was that he

accidently shot his wife.



              We conclude that Mr. Bowling was not entitled to an involuntary

manslaughter instruction. Accordingly, the circuit court did not abuse its discretion in

refusing to instruct the jury on involuntary manslaughter.



                                E. Testimonial Hearsay

              In his fifth assignment of error, Mr. Bowling alleges that the circuit court

erred by admitting the testimony of five different witnesses: Trooper Andre Palmateer,

Charles Richmond, Marilyn Smith, Beth Jones, and Gina Jarrell. Mr. Bowling alleges

that certain portions of these witnesses’ testimony were testimonial hearsay and that the

admission of the testimony violated his constitutional right to confront his accusers

pursuant to the Sixth Amendment to the United States Constitution and Article III,

Section 14 of the West Virginia Constitution.



              W. Va. R. Evid. 801(c) defines hearsay as follows:         “‘Hearsay’ is a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”        The definition of



                                            16
“testimonial statement” appears in syllabus point 8 of State v. Mechling, 219 W. Va. 366,

633 S.E.2d 311 (2006):

                       Under the Confrontation Clause contained within the
                Sixth Amendment to the United States Constitution and
                Section 14 of Article III of the West Virginia Constitution, a
                testimonial statement is, generally, a statement that is made
                under circumstances which would lead an objective witness
                reasonably to believe that the statement would be available
                for use at a later trial.

Mechling illustrates the application of this syllabus point through a discussion of the U.S.

Supreme Court case Davis v. Washington, 547 U.S. 813 (2006):

                The Court in Davis proceeded to apply these guidelines to the
                facts of Davis’s and Hammon’s cases. As to Davis, the Court
                concluded that circumstances objectively indicated that the
                primary purpose of the victim’s statement in the 911 call was
                to appeal for police assistance to meet an ongoing
                emergency. The victim was not “acting as a witness; she was
                not testifying . . . . No ‘witness’ goes into court to proclaim an
                emergency and seek help.” 547 U.S. at ___, 126 S.Ct. 2266
                (Slip Op. at 13). The Court therefore found that the victim’s
                “early statements identifying Davis as her assailant . . . were
                not testimonial,” and that the admission of the 911 call into
                evidence against Davis did not violate the Confrontation
                Clause. FN7 547 U.S. at ___, 126 S.Ct. 2266 (Slip Op. at 14).
                Davis’s conviction was affirmed.

Mechling, 219 W. Va. at 377, 633 S.E.2d at 322 (emphasis added).



                This Court reviews a circuit court’s decision to admit or exclude evidence

for an abuse of discretion. Syl. pt. 2, Doonan, 220 W.Va. 8, 640 S.E.2d 71.6 However, an


       6
           Syllabus point 2 of Doonan is quoted in full supra Part III.C.


                                               17
abuse of discretion is not reversible if the circuit court’s error is harmless. W. Va. R.

Crim. P. 52 declares that “[a]ny error, defect, irregularity, or variance which does not

affect substantial rights shall be disregarded.” Similarly, W. Va. R. Evid. 103(a) states

that

              error may not be predicated upon a ruling which admits or
              excludes evidence unless a substantial right of the party is
              affected, and . . . [i]n case the ruling is one admitting
              evidence, a timely objection or motion to strike appears of
              record, stating the specific ground of objection, if the specific
              ground was not apparent from the context.

An error affects a petitioner’s substantial rights if “the error was prejudicial. It must have

affected the outcome of the proceedings in the circuit court, and the defendant rather than

the prosecutor bears the burden of persuasion with respect to prejudice.” Syl. pt. 9, in

part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (emphasis added).



              When the alleged error involves the infringement of a petitioner’s

constitutional rights, the burden is on the State to show that the error is harmless beyond

a reasonable doubt:

              We have stated that the “[f]ailure to observe a constitutional
              right constitutes reversible error unless it can be shown that
              the error was harmless beyond a reasonable doubt.” Syllabus
              Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214
              S.E.2d 330 (1975). In accord, Syllabus Point 14, State v.
              Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998). “An error
              in admitting plainly relevant evidence which possibly
              influenced the jury [or a trial judge] adversely to a litigant
              cannot . . . be conceived of as harmless.” Chapman v.
              California, 386 U.S. 18, 23–24, 87 S.Ct. 824, 17 L.Ed.2d 705
              (1967). “‘Errors involving deprivation of constitutional rights
              will be regarded as harmless only if there is no reasonable

                                             18
              possibility that the violation contributed to the conviction.’”
              State v. Jenkins, 195 W.Va. 620, 629, 466 S.E.2d 471, 480
              (1995) (quoting, Syllabus Point 20, State v. Thomas, 157
              W.Va. 640, 203 S.E.2d 445 (1974)). Moreover, once an error
              of constitutional dimensions is shown, the burden is upon
              “the beneficiary of a constitutional error”—usually the
              State—“to prove beyond a reasonable doubt that the error
              complained of did not contribute to the verdict obtained.”
              Chapman, 386 U.S. at 24, 87 S.Ct. 824.

Mechling, 219 W.Va. at 371, 633 S.E.2d at 316. Accordingly, we must first determine

whether the court abused its discretion by admitting the disputed testimony, then we must

proceed to evaluating whether the testimony is harmless.



1. The disputed testimony

              The first portion of testimony Mr. Bowling argues should have been

excluded came from Trooper Andre Palmateer (“Trp. Palmateer”).                Prior to Trp.

Palmateer giving this testimony, the circuit court instructed the jury as follows:

                     Other statements of Tresa Bowling are not made -- I'm
              sorry. Other statements of Tresa Bowling not made during or
              immediately after an event, concerning Christopher
              Bowling’s actions, are not offered to show that he committed
              such acts or to prove his character. However, they may be
              considered by you insofar as you believe that the fact that
              Tresa Bowling allegedly made such statements shows a
              source of antagonism between her and the defendant,
              Christopher Bowling, and the nature of their relationship and
              the historical context of her death.



              Trp. Palmateer, a friend of both Mr. and Ms. Bowling, testified about an

encounter he had with Ms. Bowling sometime between late 2007 and early 2008. He


                                             19
stated that he was off duty and that he spoke with Ms. Bowling in a bar. During direct

examination, Trp. Palmateer was questioned by the State as follows:

                    Q      I believe you had testified that it was -- you
             observed that Tresa had been crying; is that right?
                    A      Yes.
                    Q      And from your observation, did she appear
             upset?
                    A      Yes, she was.
                    Q      At any time as she was speaking to you, was
             she wanting you to take police action against the defendant?
                    A      None.
                    Q      At any time that she was speaking to you, did
             she want any police involvement in what she was telling you?
                    A      No.
                    Q      In fact, did she beg you not to tell?
                    A      She did beg me not to tell.
                    Q      Would you tell the jurors, did she describe --
             did she describe an event that had occurred immediately
             before she was speaking with you?
                    A      She did.
                    Q      And would you tell the jurors what Tresa
             described to you?
                    ....
                    [A] Tresa didn’t -- she didn’t want to speak to me at
             all about the situation, what was going on, but she later
             confided in me that Chris had been abusive to her and, at one
             point in time during this abuse, he had actually pulled his
             weapon out and fired a round off in the house.

Mr. Bowling’s counsel timely objected to the testimony concerning abuse and firing the

gun as testimonial hearsay.



             We agree with Mr. Bowling that the testimony is hearsay. Ms. Bowling’s

statement, given through Trp. Palmateer, has no other purpose other than to prove that

Mr. Bowling committed the alleged acts, despite the circuit court’s limiting instruction


                                          20
and the State’s assertions to the contrary. Furthermore, we agree that Trp. Palmateer’s

statements are testimonial. The evidence presented at trial indicates that Ms. Bowling

knew Trp. Palmateer was a police officer. Also, Ms. Bowling was not making the

statement for the purpose of receiving any kind of help from him to deal with an ongoing

emergency, as evidenced by her request that he not reveal to anyone the events she

described for him. In State v. Ferguson, 216 W. Va. 420, 423, 607 S.E.2d 526, 529

(2004), we said, “[W]e do not perceive that Crawford’s largely unexplored ban on

‘testimonial hearsay’ . . . extends to the statements to non-official and non-investigatorial

witnesses, made prior to and apart from any governmental investigation, that are issues in

this case.” Unlike the witnesses in Ferguson, the witness in this case was a governmental

official. An objective witness would reasonably believe that the statement would be

available for use at a later trial, and therefore it is testimonial. Thus, the court abused its

discretion by allowing Trp. Palmateer to testify as to this conversation between himself

and Ms. Bowling.



              The second portion of testimony Mr. Bowling believes should have been

excluded came from Charles Richmond (“Mr. Richmond”). Mr. Richmond was a friend

of Ms. Bowling. Over defense counsel’s objection, he testified as follows on direct

examination by the State:

                     Q      . . . In the context of [Ms. Bowling’s]
              discussions with you concerning her marriage to the
              defendant, did she ask you to promise something?
                     A      Yes.
                     ....

                                              21
                      Q      And what did you promise on, if you know
              what I mean?
                      A      She asked me to promise her that -- I think her
              words were, if I’m shot in my sleep, promise me that you’ll
              tell the police that it was no accident.



              We believe Mr. Richmond’s testimony is also testimonial hearsay. As with

the testimony of Trp. Palmateer, Ms. Bowling’s statement through Mr. Richmond is

hearsay because it is offered in evidence to prove the truth of the matter asserted. It is

testimonial because Ms. Bowling specifically requested that Mr. Richmond tell her

statement to others in the event she is shot. An objective witness would reasonably

believe that the statement would be available—even intended—for use at a later trial.

The court abused its discretion by failing to exclude this testimony.



              The third portion of testimony with which Mr. Bowling takes issue is that

of Marilyn Smith (“Ms. Smith”). During direct examination by the State, she was

questioned as follows over defense counsel’s timely objection:

                      Q     Did she express any fears to you as to what
              would happen if she tried to leave?
                      A     Yes.
                      Q     What were her fears?
                      A     That he would kill her.
                      ....
                      Q     Would you tell the jurors what Tresa told you or
              asked you?
                      A     She said that if anything ever happened to her,
              that I would know what to tell them.




                                            22
              The statement “if anything ever happened to her, that I would know what to

tell them” is testimonial hearsay for the same reason that Mr. Richmond’s testimony was

testimonial hearsay: It is an out-of-court statement offered in evidence to prove the truth

of the matter asserted, and Ms. Bowling clearly intended the statement to be used against

her husband at any trial that might someday occur. The circuit court abused its discretion

by allowing Ms. Smith to give the testimony.



              The fourth witness Mr. Bowling alleges provided testimonial hearsay was

Beth Jones.    During direct examination by the State, Beth Jones testified as to a

conversation she had with Ms. Bowling two days after Ms. Bowling alleged Mr. Bowling

had hit her with grilling tongs (“tong incident”):

                      Q      Then when you called your sister, Tresa, at first
              did you know whether she was inside or outside.
                      A      No. . . .
                      Q      And then would you tell the jury, did she
              describe an injury?
                      A      Yes. She had -- on Friday evening, had be
              cooking out and Chris [Mr. Bowling] came home, I guess,
              and was upset and he had taken a set of the grilling tongs and
              hit her in the head with them and gashed her head open.

Although defense counsel did not object to this testimony at trial, counsel did object to

the admissibility of the statement when the testimony was elicited by the State at a

pretrial hearing. Counsel’s hearsay objection was overruled on the grounds that the

testimony fell under the “excited utterance” hearsay exception in W. Va. R. Evid. 803(2).

              “‘In order to qualify as an excited utterance under W. Va. R.
              Evid. 803(2):(1) the declarant must have experienced a
              [startling] event or condition; (2) the declarant must have

                                             23
              reacted while under the stress or excitement of that event and
              not from reflection and fabrication; and (3) the statement must
              relate to the startling event or condition.’ Syl. pt. 7, State v.
              Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995).”

Syl. pt. 10, State v. Surbaugh, 230 W. Va. 212, 737 S.E.2d 240, (2012) (emphasis added).



              We agree with Mr. Bowling that Beth Jones’ testimony is hearsay not

falling under the excited utterance exception.        Again, it involved an out-of-court

statement offered for its truth. The conversation took place two days after the incident

allegedly occurred, which is well outside of the timeframe in which Ms. Bowling’s

statements were the direct result of the stress or excitement.



              We do not agree with Mr. Bowling’s assertion that these statements are

testimonial. Ferguson is again instructive. In that case, friends of the victim testified at

trial that the victim had told the friends that the petitioner had threatened the victim with

a knife. Ferguson, 216 W. Va. at 423, 607 S.E.2d at 529. Because the statements were

made to “non-official and non-investigatorial witnesses,” and because they were “made

prior to and apart from any governmental investigation,” the statements were not

testimonial. Beth Jones’ testimony is decidedly similar to the testimony in Ferguson, and

like in Ferguson, it does not represent testimonial hearsay.



              Beth Jones’ testimony concerning the tong incident was also produced

through a document created by a Women’s Resource Center employee upon discussing


                                             24
the situation with Ms. Jones.     The document was admitted over defense counsel’s

objection. We agree that the document contains hearsay, and we are further troubled by

the lack of foundation provided to support the admission of this evidence.



              The final witness Mr. Bowling contends provided testimonial hearsay is

Gina Jarrell (“Ms. Jarrell”). Ms. Jarrell is the psychotherapist who treated Ms. Bowling’s

two children after Ms. Bowling’s death. Ms. Jarrell testified that the children, who were

10 and 4 years old at the time of the shooting, suffered from post-traumatic stress

disorder, and she testified as to things the children had told her during their therapy

sessions. Documents related to treatment were also entered into evidence.



              Mr. Bowling asserts that because treatment was sought for the children

after Ms. Bowling’s death, the evidence is necessarily testimonial. We do not agree. The

statements in this case—things the children told Ms. Jarrell—were almost certainly not

made with the knowledge that the statements would or could later be used in court.

Furthermore, although the statements made by the children to Ms. Jarrell are hearsay,

they fall under the “medical treatment” exception to hearsay in W. Va. R. Evid. 803(4).7



       7
         W. Va. R. Evid. 803(4) declares that the hearsay rule does not exclude
“[s]tatements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.”


                                            25
Therefore, we find no abuse of discretion on the part of the circuit court in allowing Ms.

Jarrell’s testimony and treatment documents into evidence.



2. Harmless error analysis

              Having found that the circuit court abused its discretion by admitting

particular testimony of Trp. Palmateer, Mr. Richmond, Ms. Smith, and Beth Jones over

defense counsel’s objection, we must now proceed to determine whether the court

committed reversible error.     We will begin by addressing the testimony of Trp.

Palmateer, Mr. Richmond, and Ms. Smith, which we determined to be testimonial

hearsay. As noted above, errors containing a constitutional dimension must be harmless

beyond a reasonable doubt to avoid reversal.



              We find that the State has met its burden with regard to Trp. Palmateer, Mr.

Richmond, and Ms. Smith. At trial, the State presented ample evidence through both the

witnesses named in this assignment of error and through numerous other witnesses

sufficient to support the jury’s finding that Mr. Bowling murdered his wife. The jury

heard (1) that the Bowlings had a history of domestic conflict; (2) that Mr. Bowling had

pointed his loaded gun at Ms. Bowling’s head and pulled the trigger; (3) that Ms.

Bowling was shot in the head; (4) that Ms. Bowling’s daughter heard Mr. and Ms.

Bowling speaking after he arrived home and that she heard Ms. Bowling say, “It’s not my

fault” directly prior to the shot; (5) that Mr. Bowling appeared to have taken no action to

aid his wife after the shooting except to summon police and rescue services to his home;

                                            26
and, among other evidence, (6) that Mr. Bowling appeared to show no concern for his

children or his wife while being questioned about the shooting prior to his arrest.

Although it was error for the court to repeatedly admit the improper evidence presented

to it by the State,8 had the State never presented the hearsay and testimonial statements at

issue, we do not believe that the jury’s verdict would have been different. We further

find that the court’s erroneous admission of Beth Jones’ testimony, which is evaluated

under a lesser standard than that of constitutional errors, is harmless error for the same

reasons noted above. Therefore, we conclude that the testimonial hearsay was harmless

beyond a reasonable doubt. Because the errors are harmless, they are not reversible.



                             F. 404(b) Character Evidence

              In this assignment of error, Mr. Bowling claims that the circuit court erred

by admitting the State’s “bad character” evidence and that the same should have been

excluded pursuant to Rule 404(b). This rule states, in part:

              Evidence of other crimes, wrongs, or acts is not admissible to
              prove the character of a person in order to show that he or she
              acted in conformity therewith. It may, however, be admissible
              for other purposes, such as proof of motive, opportunity,
              intent, preparation, plan, knowledge, identity, or absence of
              mistake or accident . . . .

       8
         During oral argument, the State’s counsel was questioned by the Court as to why
she “muddied the waters” of this case by presenting evidence that was clearly
inadmissible. Counsel insisted that in preparing for a trial, it is imperative that the State
present all available and relevant evidence to the jury. While we agree with the position
that the State’s counsel must zealously pursue each of her cases, counsel’s advocacy must
also be tempered by the rules and case law of this Court.


                                             27
Mr. Bowling specifically takes issue with “bad character” evidence presented by Trp.

Palmateer, Mr. Richmond, Beth Jones, Rebecca Jones, Mary Ann Lilly, M.L., and Marita

Judy.



             The State argues that the disputed testimony of Trp. Palmateer, Mr.

Richmond, Beth Jones, Rebecca Jones, and Mary Ann Lilly was admissible as “intrinsic”

evidence.

             In determining whether the admissibility of evidence of
             “other bad acts” is governed by Rule 404(b), we first must
             determine if the evidence is “intrinsic” or “extrinsic.” See
             United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990):
             “‘Other act’ evidence is ‘intrinsic’ when the evidence of the
             other act and the evidence of the crime charged are
             ‘inextricably intertwined’ or both acts are part of a ‘single
             criminal episode’ or the other acts were ‘necessary
             preliminaries’ to the crime charged.” (Citations omitted). If
             the proffer fits into the “intrinsic” category, evidence of other
             crimes should not be suppressed when those facts come in as
             res gestae—as part and parcel of the proof charged in the
             indictment. See United States v. Masters, 622 F.2d 83, 86 (4th
             Cir.1980) (stating evidence is admissible when it provides the
             context of the crime, “is necessary to a ‘full presentation’ of
             the case, or is . . . appropriate in order ‘to complete the story
             of the crime on trial by proving its immediate context or the
             “res gestae”’”). (Citations omitted).

State v. LaRock, 196 W. Va. 294, 312 n.29, 470 S.E.2d 613, 631 n.29 (1996). The State

asserted during the pretrial hearings occurring from April 26, 2011, through April 28,

2011, that only the testimony of M.L. and Marita Judy was “extrinsic” and thus subject to

extended analysis pursuant to McGinnis, 193 W. Va. 147, 455 S.E.2d 516. Syllabus

point 2 of McGinnis requires that

                                            28
              [w]here an offer of evidence is made under Rule 404(b) of the
              West Virginia Rules of Evidence, the trial court, pursuant to
              Rule 104(a) of the West Virginia Rules of Evidence, is to
              determine its admissibility. Before admitting the evidence, the
              trial court should conduct an in camera hearing as stated in
              State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After
              hearing the evidence and arguments of counsel, the trial court
              must be satisfied by a preponderance of the evidence that the
              acts or conduct occurred and that the defendant committed the
              acts. If the trial court does not find by a preponderance of the
              evidence that the acts or conduct was committed or that the
              defendant was the actor, the evidence should be excluded
              under Rule 404(b). If a sufficient showing has been made, the
              trial court must then determine the relevancy of the evidence
              under Rules 401 and 402 of the West Virginia Rules of
              Evidence and conduct the balancing required under Rule 403
              of the West Virginia Rules of Evidence. If the trial court is
              then satisfied that the Rule 404(b) evidence is admissible, it
              should instruct the jury on the limited purpose for which such
              evidence has been admitted. A limiting instruction should be
              given at the time the evidence is offered, and we recommend
              that it be repeated in the trial court’s general charge to the
              jury at the conclusion of the evidence.



              This Court reviews a circuit court’s decision regarding Rule 404(b)

according to LaRock:

                      The standard of review for a trial court’s admission of
              evidence pursuant to Rule 404(b) involves a three-step
              analysis. First, we review for clear error the trial court’s
              factual determination that there is sufficient evidence to show
              the other acts occurred. Second, we review de novo whether
              the trial court correctly found the evidence was admissible for
              a legitimate purpose. Third, we review for an abuse of
              discretion the trial court’s conclusion that the “other acts”
              evidence is more probative than prejudicial under Rule 403.

196 W. Va. at 310–11, 470 S.E.2d at 629–30. However, upon discovering error, a

petitioner is only entitled to reversal if the error affected his substantial rights. W. Va. R.

                                              29
Crim. P. 52; W. Va. R. Evid. 103(a).9 Accordingly, we again begin by determining

whether the court erred by admitting the disputed evidence, then we will move on to

determine whether any errors are harmless.



1. The disputed testimony

               As noted above, the State alleges that the disputed testimony of Trp.

Palmateer, Mr. Richmond, Beth Jones, Rebecca Jones, and M.L. is admissible as res

gestae of the crime. Mr. Bowling, on the other hand, argues that this evidence should

have been excluded pursuant to Rule 404(b) as evidence of his bad character.



               We can easily decide the admissibility of Mr. Richmond’s testimony. Mr.

Richmond testified as to a promise he made to Ms. Bowling,10 but Mr. Bowling does not

point to any other portion of Mr. Richmond’s testimony that involves bad acts committed

by Mr. Bowling. Therefore, Rule 404(b) is inapplicable to his testimony. Whether the

court erred with regard to M.L’s testimony is also easily determined. During the pretrial

hearing on April 26, 2011, M.L. testified that she witnessed Mr. Bowling throw a plastic

cup containing a frozen margarita drink at Ms. Bowling’s head (“margarita incident”).

At trial, however, M.L. did not discuss the margarita incident. Therefore, there can be no


      9
        The relevant text of W. Va. R. Crim. P. 52 and W. Va. R. Evid. 103(a) is quoted
supra Part III.E.
      10
           Mr. Richmond’s testimony is quoted supra Part III.E.1.


                                             30
error with regard to M.L.’s pretrial statements about the margarita incident which were

not presented to the jury.



                The remaining witnesses did testify as to prior bad acts committed by Mr.

Bowling. Trp. Palmateer testified as to Ms. Bowling’s allegation, made in 2007 or 2008,

that Mr. Bowling abused her and fired off a shot in her house.11 Beth Jones, Rebecca

Jones, and Mary Ann Lilly testified as to the tong incident, which allegedly occurred at

the beginning of July 2009.12 Whether these statements were admissible as res gestae of

the shooting depends on whether the statements were intrinsic. The State cites to State v.

Dennis, 216 W.Va. 331, 607 S.E.2d 437 (2004), in support of its proposition that the

events were intrinsic. In Dennis, we evaluated the admissibility of testimony alleging

that the appellant committed bad acts toward the victim in the months prior to the crime:

                       The evidence contested by Appellant is the testimony
                of the victim, the victim’s grandmother and two Wheeling
                law enforcement officers. The victim’s testimony related
                various incidents occurring in the three months preceding the
                events occurring on July 23 and 24, 2001, for which
                Appellant was indicted. These incidents were used to
                demonstrate Appellant’s pattern of abusive and controlling
                behavior as a means of defining the turbulent nature of the
                relationship the victim had with Appellant after she attempted
                to break off the relationship with Appellant in late April 2001.
                The testimony of the grandmother and law enforcement

       11
            Trp. Palmateer’s testimony is quoted supra Part III.E.1.
       12
           Beth Jones’s testimony is quoted supra Part III.E.1. All three women testified
that Ms. Bowling had called them and told them that Mr. Bowling had hit her with a set
of grilling tongs.


                                              31
             officers related the events of June 27, 2001, which bore a
             striking similarity to the July episode and resulted in the
             arrest of Appellant for violation of a domestic violence
             protective order. After carefully reviewing the record, we
             cannot say that the trial court abused its discretion in finding
             that the prior acts constituted intrinsic evidence, not subject to
             Rule 404(b) analysis. While the acts were not part of a “single
             criminal episode” or “necessary preliminaries” to the charged
             offenses, it is difficult to conclude that the evidence was not
             necessary “to complete the story of the crimes on trial” or
             otherwise provide context to the crimes charged. Id. This is
             especially true in light of the domestic violence overlay to the
             pattern of behavior.

216 W. Va. at 352, 607 S.E.2d at 458 (emphasis added).



             The State’s reliance on Dennis is misplaced. In deciding what constitutes

intrinsic evidence, LaRock relies on United States v. Masters, 622 F.2d 83 (4th Cir.

1980), quoting small portions of the pertinent language in summarizing that opinion.

Dennis also includes text that originally appeared in Masters: “to complete the story of

the crime.” The full quote from Masters indicates that evidence is only intrinsic when it

             is so much a part of the setting of the case and its
             “environment” that its proof is appropriate in order “to
             complete the story of the crime on trial by proving its
             immediate context or the ‘res gestae’” or the “uncharged
             offense is ‘so linked together in point of time and
             circumstances with the crime charged that one cannot be fully
             shown without proving the other . . . ’ [and is thus] part of the
             res gestae of the crime charged.”

622 F.2d at 86 (footnotes and internal citations omitted) (emphasis added). Neither the

abuse alleged through Trp. Palmateer’s testimony, which occurred in 2007 or 2008, nor

the tong incident, which occurred more than six months before the 2010 shooting, is


                                            32
linked together in point of time and circumstances with the crime charged herein. While

the Court found in Dennis that evidence of abuse occurring within a few months of the

crime was admissible as res gestae under the specific facts of that case, the events

occurring six months to three years prior to the shooting in this case are not. The

evidence is not intrinsic, and the circuit court erred by failing to subject this evidence to

the admissibility analysis required by syllabus point 2 of McGinnis.



              Mr. Bowling also argues the circuit court erred by admitting additional

testimony through Mary Ann Lilly and the testimony of Marita Judy. Mr. Bowling takes

issue with Mary Ann Lilly’s statements concerning the margarita incident. He also

believes that the testimony of his ex-wife, Marita Judy, was improperly admitted. At

trial, Ms. Judy maintained that a short time prior to the end of her marriage with Mr.

Bowling, the two were involved in a fight. She stated that during the fight, Mr. Bowling

punched a hole through the couple’s bathroom door, and then he grabbed her in such a

way as to cause her hot curling iron to rest against her face, burning her.



              The State presented the testimony of Mary Ann Lilly and Ms. Judy as Rule

404(b) extrinsic evidence, and the court conducted an evaluation of the evidence pursuant

to syllabus point 2 of McGinnis, quoted supra. At the April 28, 2011, pretrial hearing,

the court and the State engaged in the following dialogue:

                     THE COURT:            So I think that one occurs. For the
              record, with regard to Ms. Judy’s testimony, I have to make a
              finding, and I find that -- based upon a preponderance of the

                                             33
             evidence, I find the incident did occur and that given the
             proper cautionary instruction, which will be given at the time
             Ms. Judy testifies, and at the end of it at the time we do the
             charge, I’ll give it at both times, and I will give the McGinnis
             instruction with regard to Ms. [Mary Ann] Lilly. Is that her
             name?
                     [THE STATE]:           Yes, Your Honor.
                     THE COURT:             Ok, Ms. Lilly’s discussion of the
             cup-throwing, blender incident.
                     [THE STATE]:           And, Your Honor, I take it then
             the Court is also making the requisite Rule 403 finding under
             McGinnis?
                     THE COURT:             I make, under 403, that the
             admission of the prior bad acts’ [sic] testimony, as set forth in
             Ms. Judy’s testimony, and in Ms. Lilly’s testimony, is more
             probative than prejudicial, and I believe it is appropriately --
             it should be appropriately admitted before the jury.
                     [THE STATE]:           And I may have missed it, but just
             for the record, I take it is the Court -- has the Court then made
             the finding that the evidence testified to by Ms. Lilly, as to
             what we refer to as the blender incident, that the Court makes
             the finding that event did occur and did --
                     THE COURT:             Oh, yeah, I thought I made that
             clear.
                     [THE STATE]:           You may have.
             THE COURT:             That event did occur, and I make a
             finding by a preponderance of the evidence. As the incident
             with Ms. Judy, I find that by a preponderance of the evidence,
             that incident did occur.



             We do not believe the court erred by admitting this evidence. The court

conducted the analysis required by McGinnis. In applying our standard of review, we

find no clear error in the court’s factual determination that the incidents Mary Ann Lilly

and Ms. Judy described did occur. At trial, the court repeatedly instructed the jury that

the evidence was relevant to show the state of mind or intent of Mr. Bowling, which is an



                                            34
acceptable use of Rule 404(b) evidence. Finally, we agree that the evidence is more

probative than prejudicial.



2. Harmless error analysis

                Reversal of Mr. Bowling’s conviction for the errors the circuit court

committed regarding the testimony of Trp. Palmateer, Beth Jones, Rebecca Jones, and

Mary Ann Lilly, depends on a finding that the errors affected the substantial rights of Mr.

Bowling. W. Va. R. Crim. P. 52; W. Va. R. Evid. 103(a).13 After carefully reviewing the

record and the arguments of the parties, we conclude that the errors were in fact harmless.

If this evidence had been completely excluded from the trial, the State would have still

provided enough evidence to support Mr. Bowling’s conviction. We believe that without

the evidence, the jury would have still convicted Mr. Bowling on the other strong

evidence presented against him. Thus, the court’s admission of the disputed 404(b)

evidence is harmless error and not reversible.



                              G. Testimony of Lieutenant Bare

                In Mr. Bowling’s final assignment of error, he posits that the circuit court

erred by allowing the State to admit certain portions of Lieutenant James Bare’s (“Lt.

Bare”) testimony at trial. We review a circuit court’s decision to admit or exclude



       13
            See the text of these rules and accompanying discussion supra Part III.E.


                                              35
evidence for an abuse of discretion. Syl. pt. 2, Doonan, 220 W.Va. 8, 640 S.E.2d 71.14

With regard to challenges to the relevancy of evidence, we have said:

                       We emphasize again that in the relevancy area a circuit
                court has considerable latitude in determining whether to
                admit or exclude evidence under Rules 401 through 403 of
                the Rules of Evidence. We review these rulings only for an
                abuse of discretion. Only rarely and in extraordinary
                circumstances will we, from the vista of a cold appellate
                record, reverse a circuit court’s on-the-spot judgment
                concerning the relative weighing of probative value and
                unfair effect. Our review, however, must have some purpose
                and that is why we review under the abuse of discretion
                standard. In general, an abuse of discretion occurs when a
                material factor deserving significant weight is ignored, when
                an improper factor is relied upon, or when all proper and no
                improper factors are assessed but the circuit court makes a
                serious mistake in weighing them.

Gentry v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995).

Determining whether the circuit court committed an abuse of discretion is only the first

step in our analysis; we must also decide, if the court did abuse its discretion, whether the

error is harmless.



1. The disputed testimony

                At trial, Lt. Bare testified as to 911 calls made by other defendants in other

cases over defense counsel’s objection. Mr. Bowling challenges the following testimony

by Lt. Bare on relevancy grounds:



       14
            Syllabus point 2 of Doonan is quoted in full supra III.C.


                                              36
         Q      In fact, forget the hangup for a moment. Even if
the defendant -- if we knew beyond a reasonable doubt that it
was the defendant who called 911 to say he accidentally -- or
to say that he had killed his wife or had shot is wife, from
your law enforcement experience and your years as a
detective, did that cause you to infer that it showed no
consciousness of guilt?
         A      (No response.)
         Q      Do you want me to repeat that? That was a very
messy question and I apologize.
         A      Yes, please.
         [DEFENSE COUNSEL]: Object, Your Honor. He
can’t opine whether it’s consciousness of guilt or not.
         Q      I can rephrase that question.
         THE COURT:            Rephrase the question.
         Q      What was the last case in which you testified in
Raleigh County Circuit Court?
         A      Rodney Berry.
         [DEFENSE COUNSEL]: Objection, relevancy.
         THE COURT:            I’ll let her go, and she’ll tie it up
or I’ll sustain your objection.
         Q      And what was Rodney Berry -- how many
people did he kill?
         A      Two.
         Q      And right after -- he shot and killed them; didn’t
he, at Bradley?
         A      Yes, he did.
         Q      After shooting and killing them, who did he
call?
         A      He called 911.
         Q      And what did he tell 911?
         A      That he had lost it and killed two people.
         Q      And then did you also assist my office and
myself in the prosecution of State v. Alfred Gray?
         A      Yes, I did.
         Q      What did Alfred Gray do?
         A      He called 911, as well.
         Q      And when he called 911, what did he say to
911?
         A      That he had shot his wife or girlfriend.
         Q      Excuse me, I can’t hear with the noise.
         A      That he had shot his significant other. I can’t
remember if she was wife or girlfriend.

                                37
                        Q      And Mr. Gray also claimed that was an
                 accident; didn’t he?
                        A      Yes.
                        Q      And what about Garth Lester, who is Garth
                 Lester?
                        A      Garth Lester shot and killed his son.
                        Q      And then what did Garth Lester do after
                 shooting and killing his son?
                        A      He called 911, as well.
                        Q      And told 911 he shot him accidentally; right?
                        A      Yes, he did.



                 We agree with Mr. Bowling’s assertion that the testimony is irrelevant.

What other defendants may have done when they called 911 has absolutely no bearing on

what the Mr. Bowling did. The court abused its discretion by allowing the State to elicit

this evidence.



                 Mr. Bowling also argues that the circuit court erred by allowing Lt. Bare to

testify as to a legal conclusion. Lt. Bare was questioned by the State as follows:

                         Q      And so, by the time you obtained the warrant
                 and up to until today, have you, as the chief investigator,
                 found substantial evidence, beyond a reasonable doubt, that
                 the defendant shot his wife with malice?
                         [DEFENSE COUNSEL]: Objection, Your Honor,
                 calls for a legal conclusion, beyond a reasonable doubt.
                         THE COURT:           Overruled.
                         A      Yes, ma’am.



                 Again, we find that the circuit court has abused its discretion. W. Va. R.

Evid. 704 states that “[t]estimony in the form of an opinion or inference otherwise


                                              38
admissible is not objectionable solely because it embraces an ultimate issue to be decided

by the trier of fact.” Lt. Bare’s opinion is not “otherwise admissible”; it does not assist

the trier of fact in determining a factual issue as required by W. Va. R. Evid. 701 or

702.15 See Jackson v. State Farm Mut. Auto. Ins. Co., 215 W. Va. 634, 644, 600 S.E.2d

346, 356 (2004) (finding that it was improper for the witness to testify as to the existence

of malice). Whether Mr. Bowling shot his wife with malice is a legal conclusion that is

entirely for the jury to decide. The court erred by allowing the State to elicit this

evidence.



              Regarding a third portion of Lt. Bare’s testimony, Mr. Bowling argues that

the court allowed Lt. Bare to impermissibly comment on Mr. Bowling’s Fifth

Amendment right to remain silent. The State questioned Lt. Bare as follows:

                     Q      On February 2nd, 2010, did you have telephone
              contact with the defendant?
                     A      Yes.
                     Q      And did you ask him to do something?
                     A      I asked him to come in and speak with me, to
              give me -- I needed additional information.
                     Q      And did he do that?
                     A      No.
                     Q      Then what did you tell --



       15
          W. Va. R. Evid. 701 describes when the opinion testimony of a lay witness is
admissible. W. Va. R. Evid. 702 describes when the opinion testimony of an expert
witness is admissible. For testimony to be admissible under 701, it must either aid in the
determination of fact or the understanding of other testimony by the same witness. Under
702, testimony must aid in the determination of fact to be admissible.


                                            39
                      [DEFENSE COUNSEL]: Objection, Your Honor.
              It’s an impermissible comment on his Fifth Amendment right
              to remain silent.
                      THE COURT:        Overruled.



              We do not agree with Mr. Bowling’s assertion that Lt. Bare impermissibly

commented on Mr. Bowling’s right to remain silent.           At the time in question, Mr.

Bowling was not in police custody. We have held, “To the extent that any of our prior

cases could be read to allow a defendant to invoke his Miranda rights outside the context

of custodial interrogation, the decisions are no longer of precedential value.” Syl. pt. 3,

State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995). Bradshaw is dispositive. If

a person cannot invoke Miranda rights outside of a custodial interrogation, then

commenting on a person’s silence while outside of police custody is not an impermissible

comment on the right to remain silent. The circuit court did not abuse its discretion with

regard to this testimony.



2. Harmless error analysis

              In our evaluation of this assignment of error, we have determined that the

circuit court abused its discretion by allowing Lt. Bare to testify as to other criminal

convictions and his opinion as to whether Mr. Bowling shot his wife with malice. This

error is only reversible if it affected the substantial rights of Mr. Bowling. Again, we find

that the error is harmless. We believe it did not prejudice the jury, and so we conclude

that we cannot reverse the circuit court on this issue.


                                             40
                                           IV.


                                  CONCLUSION



            For the reasons set forth above, this Court affirms the circuit court’s order

entered November 10, 2011, convicting Mr. Bowling of first degree murder by use of a

firearm with no recommendation of mercy.



                                                                              Affirmed.




                                           41
