           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  September 2013 Term

                                                                  FILED
                                      No. 12-0777             October 25, 2013
                                                                 released at 3:00 p.m.
                                                                 RORY L. PERRY II, CLERK
                                                               SUPREME COURT OF APPEALS
                              STATE of WEST VIRGINIA,              OF WEST VIRGINIA
                               Plaintiff Below, Respondent

                                           v.

                             KENNETH EUGENE CARTER,
                               Defendant Below, Petitioner


                   Appeal from the Circuit Court of Kanawha County
                       The Honorable James C. Stucky, Judge
                            Criminal Action No. 11–F–692

                                      AFFIRMED


                               Submitted: October 16, 2013
                                 Filed: October 25, 2013


Charles R. Hamilton, Esq.                       Patrick Morrisey, Esq.
Charleston, West Virginia                       Attorney General
Counsel for the Petitioner                      Benjamin F. Yancey, Esq.
                                                Assistant Attorney General
                                                Counsel for the Respondent




The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT


              1.     “This Court's standard of review concerning a motion to dismiss an

indictment is, generally, de novo. However, in addition to the de novo standard, where the

circuit court conducts an evidentiary hearing upon the motion, this Court's ‘clearly

erroneous’ standard of review is invoked concerning the circuit court’s findings of fact.”

Syllabus Point 1, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).



              2.     “Except for willful, intentional fraud the law of this State does not

permit the court to go behind an indictment to inquire into the evidence considered by the

grand jury, either to determine its legality or its sufficiency. Syl., Barker v. Fox, 160 W.Va.

749, 238 S.E.2d 235 (1977).” Syllabus Point 3, State v. Grimes, 226 W.Va. 411, 701 S.E.2d

449 (2009).



              3.     “The function of an appellate court when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, is sufficient to convince a reasonable person

of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether,

after reviewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proved beyond a reasonable

doubt.” Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Per curiam:



               The defendant, Kenneth Eugene Carter, appeals his conviction for murder of

the first degree and malicious wounding. Having fully considered the record, the briefs and

arguments of counsel, the defendant’s convictions and sentences are affirmed.1



                                   I. Factual Background

               The defendant was indicted by a grand jury for first degree murder and

malicious wounding. The case was tried before a jury in May 2012 and the defendant was

found guilty of murdering Ronald Ian Forton and maliciously wounding Bradie Dunlap.



               The State introduced evidence at trial demonstrating that, on July 20, 2011, the

defendant entered the bedroom of Mr. Forton and brutally beat him with a baseball bat,

crushing his skull and causing his death. The defendant also used the baseball bat to beat Mr.

Forton’s 60-year-old domestic partner, Mr. Dunlap, about the head, rendering Mr. Dunlap

unconscious. Mr. Dunlap survived the attack and testified at the defendant’s trial.




         1
          The defendant, although represented by counsel, submitted pro se filings to this
Court.

                                               1
              Mr. Dunlap explained that he first met the defendant at a homeless shelter in

2010. In October or November of 2010, the defendant asked if he and his pregnant wife

could temporarily live with Mr. Dunlap and Mr. Forton. They agreed and the defendant and

his wife moved into their small apartment for approximately four months. Mr. Dunlap

related that during those four months the defendant repeatedly accused him and Mr. Forton

of having sex with his wife. Mr. Dunlap and Mr. Forton repeatedly said they were not

having sex with the defendant’s wife, and told him they were in their own relationship with

each other.



              Mr. Dunlap recalled that during one of these instances the defendant became

so agitated that he chased Mr. Forton from the apartment, threatening to “knock him in the

head” with a brick. On another occasion, Mr. Dunlap, Mr. Forton, the defendant, and the

defendant’s wife were watching a movie when the defendant (who had been drinking)

suddenly said “I’ve had enough of this.” The defendant went to his toolbox, took out a

hammer, and returned to the living room where he raised it as if to hit Mr. Forton in the head.

Mr. Dunlap testified that “he begged [the defendant] not to hit [Mr. Forton],” and said,

“Please don’t hit him; you’ll kill him.” The defendant hit Mr. Forton with his fist but, at Mr.

Dunlap’s pleading, did not hit him with the hammer. During this incident Mr. Dunlap asked

the defendant’s wife to call the police, who arrived a short time later and arrested the

defendant.



                                               2
              In the early Spring of 2011, the defendant and his wife moved into their own

apartment. A short time later they moved into another apartment, this time closer to Mr.

Dunlap and Mr. Forton. The defendant got into an altercation with the landlord and was

shortly thereafter evicted. The defendant again came to Mr. Dunlap and Mr. Forton, told

them of the eviction and said that his wife (who had recently given birth), had been

committed to a state mental health facility. The defendant asked to again temporarily live

with Mr. Dunlap and Mr. Forton. Mr. Dunlap testified that Mr. Forton “didn’t like the

situation and wished I wouldn’t let [the defendant] come back in, because he was liable to

hurt him [Mr. Forton].”



              On the evening of July 19, 2011, Mr. Dunlap, Mr. Forton and the defendant

were drinking vodka, and all three men got drunk. Mr. Dunlap related that whenever the

defendant “gets drunk on vodka, he gets mean.” Shortly after midnight (July 20th) Mr. Forton

went to bed, but Mr. Dunlap and the defendant continued drinking. The defendant became

argumentative and began accusing Mr. Dunlap of having slept with his wife. After repeated

denials, Mr. Dunlap said that in exasperation he finally said, “Hell yeah, I had sex with her.”

The defendant grabbed a baseball bat and walked by him. Mr. Dunlap asked the defendant

what he was going to doing with the bat, at which time the defendant hit him in the head with

the baseball bat twice. Mr. Dunlap said that the next thing knew it was “nine o’clock in the

morning and [he was] bleeding all over the place.”



                                               3
              Upon waking, Mr. Dunlap called 911. The defendant sat beside him on the

couch and listened to the entire call. After making the call, the defendant ordered Mr.

Dunlap to go into the bathroom and wipe the dried blood from his face; however, Mr. Dunlap

refused saying that Mr. Forton would take care of him when he woke up. When the

paramedics arrived Mr. Dunlap told them he “fell off the porch and busted [his] head open.”

When he was later asked why he told the paramedics that story, Mr. Dunlap explained that

it was “[b]ecause [he] was scared that [the defendant] would hurt them with the baseball bat.”

However, as he was being loaded into the ambulance, Mr. Dunlap told the paramedics about

the baseball bat and asked them to check on Mr. Forton. Mr. Dunlap explained that he had

not fallen from the porch, but had instead been hit with the baseball bat by the defendant, and

that he was “scared that [Mr. Forton] may be hurt real bad.” He repeated this concern to a

police officer at the Emergency Room. Hospital records introduced at the defendant’s trial

show that Mr. Dunlap suffered an “[o]pen right frontal skull fracture. Right [tibial] fracture.

Right clavicle fracture.”



              Despite Mr. Dunlap’s concern, it was two days before police went to his

apartment. Upon entering, they discovered Mr. Forton’s body. Police later went to the

hospital where they informed Mr. Dunlap that Mr. Forton had “been[en] beat to death” and

that he been “dead for about two days.” Mr. Dunlap said that he was upset by the news and

that he “wanted [the defendant] to pay for it.” Mr. Dunlap thought that if he “lied a little bit”

and told the police he had seen the defendant hit Mr. Forton, it would help the prosecution.

                                               4
At trial Mr. Dunlap explained that he realized that his lie did not help, because he “didn’t see

it.”



              In addition to Mr. Dunlap, the State called an inmate who shared a cell with

the defendant. This inmate testified that the defendant told him he had murder and malicious

assault charges pending against him. The defendant said he committed the offenses and told

the inmate that “he walked over to the bed where [Mr. Forton] was sleeping and ‘put it to

him.’” The inmate related that the defendant walked around the cell and demonstrated how

he struck Mr. Forton with the bat. After killing Mr. Forton and beating Mr. Dunlap, the

defendant said to himself “Fuck it,” and then passed out. Asked why he did it, the defendant

told the inmate that it was because of a “smart remark” made by Mr. Dunlap, and that he [the

defendant] was “tired of hearing that shit.” The defendant further told the inmate that “he

should have cut [Mr. Dunlap’s and Mr. Forton’s] ears off, put them through a string, held

them up, and hollered in them – ‘See what you made me do? I told you not to mess with my

old lady.’”



              In rendering its guilty verdicts, the jury did not recommend mercy on the

murder charge. The defendant was sentenced to life imprisonment without the possibility

of parole for the murder count and was sentenced to a consecutive term of 2-10 years

imprisonment for the malicious wounding count. The defendant now appeals.



                                               5
                                       II. Discussion

A. The Indictment

              The defendant asserts that the trial court should have granted his pretrial

motion to dismiss the indictment. The defendant maintains that the indictment returned

against him was obtained on the basis of “perjured testimony.” The defendant argues that

there was not sufficient evidence for a grand jury to have returned an indictment against him

without the “perjured testimony.”



              In Syllabus Point 1 of State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009),

we set forth our standard of review concerning a motion to dismiss an indictment:

                      This Court’s standard of review concerning a motion to
              dismiss an indictment is, generally, de novo. However, in
              addition to the de novo standard, where the circuit court
              conducts an evidentiary hearing upon the motion, this Court's
              “clearly erroneous” standard of review is invoked concerning
              the circuit court’s findings of fact.

We are also mindful that

                     The general rule is that the validity of an indictment is
              not affected by the character of the evidence introduced before
              the grand jury, and an indictment valid on its face is not subject
              to challenge by a motion to quash on the ground the grand jury
              considered inadequate or incompetent evidence in returning the
              indictment.

Syllabus Point 2, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975). Further, that

“[e]xcept for willful, intentional fraud the law of this State does not permit the court to go

behind an indictment to inquire into the evidence considered by the grand jury, either to

                                              6
determine its legality or its sufficiency. Syl., Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235

(1977).” Syllabus Point 3, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).

Applying these standards, we find no reversible error.



               Testifying before the grand jury, Detective Andrew Foster related his

investigative findings regarding Mr. Forton’s homicide and the assault on Mr. Dunlap. As

part of his testimony Detective Foster stated that Mr. Dunlap had given a statement in which

he said that

               he recalled [the defendant] grabbing a baseball bat, a wooden
               baseball bat, that was located there in the apartment and going
               towards Mr. Forton and then striking him in the head with this
               baseball bat.

                       This initial incident took place in the hallway of the
               apartment, and then Mr. Dunlap recalled it going back towards
               the bedroom, and that being the last time he saw Mr. Forton. .
               . . Mr. Dunlap stated that he tried to intervene, at which point he
               was also struck by the baseball bat [the defendant] had in his
               hands. He was struck in the head several times.


               A review of the record shows that there is no doubt that Mr. Dunlap’s statement

to police – a statement Mr. Dunlap was to later reaffirm under oath during the defendant’s

preliminary hearing – was a fabrication. An excerpt of Mr. Dunlap’s testimony given during

a pretrial hearing makes that conclusion certain:

               Defense Counsel: What did you tell them at the preliminary
               [hearing] that you saw [the defendant] do?

               Mr. Dunlap No, I didn’t see him do it.

                                               7
              Defense Counsel: . . . you lied at the preliminary and told them
              you did, didn’t you?

              Mr. Dunlap: Yeah, I told them that I did see him beat him, but
              I didn’t. I just thought that would help the law a little, so to
              speak. I didn’t know that I was lying. I mean it was just a little
              white lie.

              Defense Counsel: A little white lie?

              Mr. Dunlap: Well, it might get him life or something like that,
              but it was still a little white lie.2
              Although Mr. Dunlap’s admittedly false statement was presented to the grand

jury, we find no reversible error on this issue. As a general proposition, this “Court reviews

indictments only for constitutional error and prosecutorial misconduct.” State v. Adams, 193

W.Va. 277, 456 S.E.2d 4 (1995). In Adams we also noted that it was a “longstanding rule

of law that courts may not ‘look behind’ grand jury indictments if ‘returned by a legally



       2
       During cross-examination at the defendant’s trial Mr. Dunlap reaffirmed that his
statement had been a lie:

              Defense Counsel: . . . You took an oath to tell the truth and only
              the truth so help you God.
              Mr. Dunlap: Yeah.
              Defense Counsel: And you lied?
              Mr. Dunlap: I just lied that one little fib.
              Defense Counsel: And that was that you told them that you had
              seen Kenny hit Ron with the bat, didn't you?
              Mr. Dunlap: Yeah.
              Defense Counsel: And that wasn't true, was it?
              Mr. Dunlap: No.
              Defense Counsel: You didn't see Kenny go anywhere near Ron
              with a bat?
              Mr. Dunlap: No.

                                              8
constituted and unbiased grand jury[.]’” Id., 193 W.Va. at 284, 456 S.E.2d at 11. This

includes challenges to “indictments on the ground that they are not supported by adequate

or competent evidence.” Id.



               Aside from contending that the grand jury should not have been presented with

Mr. Dunlap’s statement, the defendant has neither asserted that the grand jury was biased

against him, nor that the prosecutor engaged in misconduct by presenting Detective Foster

as a witness. At the time of Detective Foster’s grand jury testimony, Mr. Dunlap had not yet

recanted his false statement. The defendant has presented no evidence to show that Detective

Foster knew Mr. Dunlap’s statement to be false at the time of his grand jury testimony.



               The defendant argues that if Mr. Dunlap’s grand jury testimony were excluded,

there would not be sufficient evidence upon which the grand jury could have returned an

indictment against him. It is a well-settled principle of our jurisprudence that “[g]enerally

speaking, the finding by the grand jury that the evidence is sufficient is not subject to judicial

review.” Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure, I–651 (2d

ed.1993). See also Adams, 193 W.Va. at 284, 456 S.E.2d at 11(“Cases are legion supporting

the proposition that a defendant may not challenge a facially valid indictment returned by a

legally constituted grand jury on the basis that the evidence presented to the grand jury was

legally insufficient.”)(Citations omitted.). While the defendant feels aggrieved that a false

statement was made to his grand jury, a jury found him guilty of the offenses set forth in the

                                                9
indictment even though that jury was made fully aware, through vigorous cross-examination

by defense counsel, that Mr. Dunlap had initially lied. We find no error.



B. Denial of Motion for Judgment of Acquittal

              The defendant argues that the trial court committed reversible error by denying

his motion for judgment of acquittal. The basis of the defendant’s argument is that the

evidence was insufficient to sustain the charges being submitted to his jury. We find no

merit in this assignment.



              This “Court applies a de novo standard of review to the denial of a motion for

judgment of acquittal based upon the sufficiency of the evidence.” State v. Minigh, 224

W.Va. 112, 680 S.E.2d 127 (2009). In Syllabus Point 1 of State v. Guthrie, 194 W.Va. 657,

461 S.E.2d 163 (1995), we held that

              [t]he function of an appellate court when reviewing the
              sufficiency of the evidence to support a criminal conviction is to
              examine the evidence admitted at trial to determine whether
              such evidence, if believed, is sufficient to convince a reasonable
              person of the defendant's guilt beyond a reasonable doubt. Thus,
              the relevant inquiry is whether, after viewing the evidence in the
              light most favorable to the prosecution, any rational trier of fact
              could have found the essential elements of the crime proved
              beyond a reasonable doubt.

In State v. LaRock, 196 W.Va. 294, 303, 470 S.E.2d 613, 622 (1996), we explained this

analysis:



                                              10
                     A convicted defendant who presses a claim of evidentiary
              insufficiency faces an uphill climb. The defendant fails if the
              evidence presented, taken in the light most agreeable to the
              prosecution, is adequate to permit a rational jury to find the
              essential elements of the offense of conviction beyond a
              reasonable doubt. Phrased another way, as long as the aggregate
              evidence justifies a judgment of conviction, other hypotheses
              more congenial to a finding of innocence need not be ruled out.
              We reverse only if no rational trier of fact could have found the
              essential elements of the crime beyond a reasonable doubt.


              Reviewing the record before us, there is ample evidence “to permit a rational

jury to find the essential elements of the offense of conviction.” Id. The defendant admitted

to a fellow inmate that he killed Mr. Forton. Mr. Dunlap testified that the defendant beat him

with a baseball bat. The defendant argues that these two witnesses were not credible.

However, the testimony of those two witnesses was enough for the trial court to deny the

motion for judgment of acquittal and send the case to the jury. The veracity of the two

witnesses is not an issue for this Court – it was one for the defendant’s jury, and it was one

that was answered by that jury.



C. 404(b) Evidence.

              The defendant asserts that, under Rule 404(b) of the Rules of Evidence, the trial

court erred by permitting the State to introduce two prior acts of violence that he committed

against Mr. Forton. The first of these acts was that the defendant had, on a prior occasion,

threatened to strike Mr. Forton with a hammer, and that he did physically assault him with



                                             11
his fist during that incident. The second prior act was that the defendant took a brick and

raised it as if to hit Mr. Forton with it, at which time Mr. Forton fled from his apartment.



              In addition to these two acts, the defendant asserts that error occurred during

his testimony at the defendant’s trial. During cross-examination the defendant was asked

about the brick incident and his arrest following that incident. In an apparent effort to negate

that his arrest was related to the brick incident, the defendant testified that he thought he had

been arrested and jailed for violating a domestic violence protective order. The defendant

contends that this testimony was error because the parties had agreed, in a pretrial stipulation,

not to introduce any evidence of prior domestic abuse between the defendant and his wife.3

The defendant’s testimony at issue was not responsive to the question being asked by the

prosecutor. We therefore find no merit in this argument.



              In State v. LaRock, 196 W.Va. at 310–311, 470 S.E.2d at 629–630(footnote and

citations omitted), we held that

              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


       3
         The State sought use of a third prior act, where the defendant was alleged to have
choked Mr. Forton. However, following the Rule 404(b) hearing, the trial court concluded
that it would not permit the evidence on the basis that its occurrence had not been established
by a preponderance of the evidence.

                                               12
              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.

In State v. Willett, 223 W. Va. 394, 397, 674 S.E.2d 602, 605 (2009), we further explained

that “[i]n reviewing the admission of Rule 404(b) evidence, we review it in the light most

favorable to the party offering the evidence ... maximizing its probative value and minimizing

its prejudicial effect.” Applying these standards, we find no merit in the defendant’s

arguments.



              There is more than sufficient evidence in the record to support the trial court’s

conclusion that the prior acts had occurred. Mr. Dunlap testified about both incidents. In the

brick incident, Mr. Dunlap testified that the defendant grabbed a brick that was being used

to keep a door open, said to Mr. Forton that he was “going to bash [him] in the head with [it]”

and chased Mr. Forton from the apartment. In the hammer incident, Mr. Dunlap testified that

the defendant had hit Mr. Forton in the jaw with his fist, and that he raised the hammer up

as if he were going to hit Mr. Forton in the head, at which time Mr. Dunlap said that he told

the defendant, “Don’t do it Kenny, don’t, for God’s sake you’ll kill him.” In response to the

plea, the defendant said, “I don’t give a f*** about that.” Police arrived a short time later and

the defendant was arrested.




                                               13
                 We also find that the trial court properly concluded that there was a legitimate

purpose for admission of the Rule 404(b) evidence. The trial court limited the use of the

evidence to the issue of intent, and instructed the jury on that limited use. The State’s theory

of the case was that the defendant acted violently whenever he got it in his mind that Mr.

Forton or Mr. Dunlap was sleeping with his wife. During both of the referenced incidents,

the defendant was accusing Mr. Forton and Mr. Dunlap of “screwing his wife.” On the

evening of Mr. Forton’s murder, the defendant was again accusing the men of having sex

with his wife.



                 Finally, we conclude that the trial court properly determined that the evidence

at issue was more probative than prejudicial. The trial court carefully instructed the jury as

to the weight to be afforded the evidence. The trial court told the jury that the defendant was

not on trial for those prior offenses and that this evidence was only relevant to the element

of intent.



                 We find no merit in the defendant’s 404(b) arguments.



                                         III. Conclusion




                                                14
              For the foregoing reasons, the defendant’s convictions and sentences are

affirmed.4

                                                                                   Affirmed.




       4
         The defendant raises several other issues as assignments of error: (1) that the
prosecutor made improper statements during his trial; (2) that the trial court erred in ruling
that the prosecutor did not have a conflict of interest because he was also prosecuting “the
jailhouse snitch” who testified against the defendant; (3) that the trial court erred by not
dismissing the jury venire during voir dire for “contamination;”(4) that the trial court erred
by denying the defendant’s “motion to interrogate the jury foreman;” and (5) that the trial
court erred by denying the motion for a new trial on the basis that it was discovered during
trial that 20 swabs of DNA had not been tested.

       A careful review of the record reveals that there is no merit in these five assignments
of error.



                                             15
