                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                                  May 24, 2013
vs) No. 12-0235 (Fayette County 11-F-151)                                    RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Lori F., Defendant Below, Petitioner

                                 MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Thomas K. Fast, arises from the Circuit Court of Fayette
County, wherein she was sentenced to a term of incarceration of one to five years following her
jury conviction of child neglect creating a risk of injury by order entered on January 20, 2012.1
The State, by counsel the Office of the Attorney General, has filed its response, to which
petitioner has filed a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In September of 2011, petitioner was indicted on one count of child neglect creating risk
of injury. This indictment resulted from an incident in which a minor child in her care played on a
busy roadway and was in danger of being hit by a vehicle or falling from a bridge into a creek
below. The investigating officer recorded the temperature at fifty degrees Fahrenheit shortly after
the child had been found outside wearing nothing but a diaper. Prior to trial, the State filed a
motion in limine to exclude evidence of the criminal record of a State’s witness, Darrell Sharp II.
Mr. Sharp contacted emergency personnel after he saw the child outside unsupervised, and the
State sought to limit the introduction of evidence related to a pretrial diversion agreement he had
in regard to an unrelated criminal charge. The circuit court ultimately ruled that petitioner could
ask Mr. Sharp about his motivation to contact law enforcement because of the pretrial diversion
agreement, but did not allow her to ask substantive questions about the underlying criminal
charge. Following a jury trial, petitioner was found guilty of one count of child neglect creating
risk of injury and was sentenced to a term of incarceration of one to five years. This sentence was
suspended in lieu of ten days served in the Southern Regional Jail, twelve months in the Fayette
County Community Corrections Program, a six-month period of monitoring by the West Virginia



       1
         In keeping with the Court’s policy of protecting the identity of minors that are subject to
abuse and/or neglect, petitioner will be referred to by her last initial throughout the memorandum
decision.
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Department of Health and Human Resources (“DHHR”), participation in counseling and
parenting classes, and registration as a child abuser for a period of ten years.

        On appeal, petitioner alleges three assignments of error. First, petitioner alleges that the
circuit court erred in instructing the jury as to gross neglect, an essential element of the crime
charged. Petitioner argues that, according to West Virginia Code § 61-8D-4(e), the State was
required to show that she grossly neglected the child in question. Petitioner submitted proposed
jury instructions on this issue, but the same were rejected, and the circuit court further declined to
include language regarding intent in its instruction. Second, petitioner argues that the circuit court
erred in failing to give a limiting instruction regarding neglect substantiated by the DHHR.
During its case-in-chief, the State called a Child Protective Services (“CPS”) worker to testify that
neglect was substantiated in petitioner’s home due to a lack of supervision. Petitioner moved for a
limiting instruction stating that the DHHR’s conclusion of substantiated neglect does not equate
to criminal neglect. According to petitioner, the circuit court deferred ruling until the instruction
stage. However, no limiting instruction was ever given. Petitioner argues that this Court has held
that “[a] limiting instruction should be given at the time the evidence is offered . . . .” Syl. Pt. 2,
State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). Lastly, petitioner argues that the
circuit court unduly restricted her ability to properly cross-examine Mr. Sharp by instructing that
she could not inquire as to the crime underlying his pretrial diversion agreement. As such,
petitioner argues that she was denied the right to confront an accuser and that the jury was not
able to fully judge the witness’s credibility

       We have previously held that

       “A trial court’s refusal to give a requested instruction is reversible error only if: (1)
       the instruction is a correct statement of the law; (2) it is not substantially covered
       in the charge actually given to the jury; and (3) it concerns an important point in
       the trial so that the failure to give it seriously impairs a defendant’s ability to
       effectively present a given defense.” Syl. pt. 11, State v. Derr, 192 W.Va. 165, 451
       S.E.2d 731 (1994).

Syl. Pt. 5, State v. Surbaugh, 230 W.Va. 212, 737 S.E.2d 240 (2012). Upon our review, we find
that the circuit court did not err in rejecting petitioner’s proposed instruction because West
Virginia Code § 61-8D-4(e) does not contain an intent requirement and petitioner’s instruction
was not an accurate reflection of the law. The circuit court did state in its charge to the jury that
petitioner had to be guilty of gross neglect and that “[i]t is not sufficient for the State to prove
simple neglect or ordinary neglect.” In short, the jury was instructed that gross neglect is an
essential element of the crime. There is no requirement, however, that the circuit court had to
define such a common term. As such, we find no error in this regard.

        As to petitioner’s second assignment of error, we find no error in the circuit court denying
a limiting instruction as to the CPS worker’s testimony about substantiated neglect in the home.
To begin, the syllabus point upon which petitioner relies to argue that limiting instructions must
be given at the time the evidence is introduced applies only to evidence introduced under Rule
404(b) of the West Virginia Rules of Evidence. Further, the record indicates that after petitioner

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requested the limiting instruction during the witness’s testimony, the circuit court decided to hold
its ruling in abeyance until the instruction phase of trial, to which petitioner did not object. The
record further shows that petitioner failed to submit any proposed limiting instruction in regard to
this witness’s testimony. In fact, when the circuit court reviewed the charge with the parties,
petitioner’s counsel affirmed that there was no objection to the charge, other than the issue
regarding gross neglect as addressed above. As such, we find no error by the circuit court in
failing to give the jury any limiting instruction related to this testimony.

        Lastly, the Court finds no error in regard to the circuit court limiting the scope of
petitioner’s cross-examination of Mr. Sharp and the charge of child abuse that resulted in his
pretrial diversion agreement. We have previously held that

       “[s]everal basic rules exist as to cross-examination of a witness. The first is that the
       scope of cross-examination is coextensive with, and limited by, the material
       evidence given on direct examination. The second is that a witness may also be
       cross-examined about matters affecting his credibility. The term “credibility”
       includes the interest and bias of the witness, inconsistent statements made by the
       witness and to a certain extent the witness’ character. The third rule is that the trial
       judge has discretion as to the extent of cross-examination.” Syllabus Point 4, State
       v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

Syl. Pt. 1, State v. Barnett, 226 W.Va. 422, 701 S.E.2d 460 (2010). Upon our review, we find that
the crime with which Mr. Sharp was charged was simply not relevant to any issue before the
circuit court and was totally unrelated to petitioner’s crime. Petitioner argues that she was not
allowed to impeach the witness by addressing the pretrial diversion agreement, but Rule 609(a)(2)
of the West Virginia Rules of Evidence requires conviction before a witness may be impeached
with a prior criminal act. Simply put, there was no criminal conviction with which to impeach the
witness. Further, it is clear Mr. Sharp was not motivated to testify against petitioner in order to
avoid prosecution because he entered the pretrial diversion agreement prior to the date he reported
petitioner’s conduct and the agreement was fully discharged prior to his testimony. The
agreement did not call for Mr. Sharp to testify in any matters and he therefore had no need to “get
in good with the police.” For these reasons, the Court finds no error in limiting the scope of
petitioner’s cross-examination in this regard.

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.

                                                                                            Affirmed.
ISSUED: May 24, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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