No. 11-1766 – State v. Harris
                                                                        FILED
                                                                     April 11, 2013
                                                                     released at 3:00 p.m.
                                                                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA

Workman, Justice, Concurring:



       I concur in the judgment and in all of the majority’s reasoning. However, I write

separately to express my view that the ratio decidendi set forth in State v. Brown, 780 P.2d

880 (Wash.App. 1989), and Covington v. State, 703 P.2d 436 (Alaska 1985), should be

adopted by this Court in analyzing Rule 404(b) challenges in all cases where a child victim

testifies to incidents of sexual assault and abuse perpetrated by the defendant but not

specifically charged in the indictment.



       In Brown, the court discussed the “difficulty of presenting testimony [of a child]

limited to a specific incident . . . ,” reasoning that

               [p]articularly when the accused resides with the victim or has
               virtually unchecked access to the child, and the abuse has
               occurred on a regular basis and in a consistent manner over a
               prolonged period of time, the child may have no meaningful
               reference point of time or detail by which to distinguish one
               specific act from another. The more frequent and repetitive the
               abuse, the more likely it becomes that the victim will be unable
               to recall specific dates and places. Moreover, because the
               molestation usually occurs outside the presence of witnesses,
               and often leaves no permanent physical evidence, the
               [prosecution’s] case rests on the testimony of a victim whose
               memory may be clouded by a blur of abuse and a desire to
               forget.
Brown, 780 P.2d at 885 (citation omitted).



       In Covington, the court noted that

              where the specific crime charged was sexual abuse of a minor,
              the common law position supported by an overwhelming
              majority of states is that evidence of prior similar conduct with
              the same victim is admissible . . . first, the evidence tended to
              establish the ongoing relationship between the accused and the
              victim and explained, in part, the victim’s inability to
              specifically describe separate incidents; and, secondly, it served
              to explain the victim’s testimony in its context, particularly
              indicating why she might acquiesce in the defendant’s demands
              . . . the evidence is highly material to explain the witness’
              difficulties in specifying incidents so that her testimony may be
              considered in the context in which it arose.

Covington, 703 P.2d at 441 (citation omitted).



       In the case at bar, the victim, M.R.W., was between the ages of four and six during

the time period in which she was molested by the petitioner, who had access to her on

multiple occasions over several years. As in many if not most cases involving the sexual

assault or abuse of young children, M.R.W. could not specify the particular dates or times

of the incidents charged in the indictment. For that reason, the indictment contained a two-

year range of time within which each incident occurred.1 And for that reason, the child

victim’s testimony concerning multiple instances of sexual assault and abuse by the petitioner



       1
       It is well established in our precedents that time is not an element of sexually-
based offenses. State ex rel. State v. Reed, 204 W. Va. 520, 523, 514 S.E.2d 171, 174
(1999); State v. David D.W., 214 W. Va. 167, 173, 588 S.E.2d 156, 162 (2003).
was admissible as intrinsic evidence that was directly probative of an element of the charged

offenses. Cf. State v. Arceo, 928 P.2d 843 (Haw. 1996) (holding that evidence may be

introduced for the purpose of showing that there is more than one act upon which proof of

an element of an offense may be based).



       In my view, under the rationale of Brown, Covington and Arceo, in any case involving

the sexual assault or abuse of a child victim in which the victim cannot specify the exact

time, place or circumstance of the offense(s), all of the child’s testimony concerning

incidents of sexual assault or abuse by the defendant is intrinsic evidence inextricably

intertwined with the acts charged in the indictment, and is therefore not subject to exclusion

under W.V.R.Ev. 404(b), which deals with extrinsic evidence. Although the majority

implicitly acquiesces in this view, I believe that this Court should unequivocally so hold.
