                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                  FILED
State of West Virginia,
Plaintiff Below, Respondent                                                   November 14, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 15-0853 (McDowell County 13-F-158S)                                         OF WEST VIRGINIA


James B.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner James B., by counsel Floyd A. Anderson, appeals the Circuit Court of
McDowell County’s January 26, 2015, order sentencing him to consecutive terms of
incarceration of not less than ten nor more than twenty-five years for one count of abduction of a
person and not less than three nor more than ten years for one count of second-degree sexual
assault, and placing him on supervised release for an additional ten years.1 Respondent, by
counsel Shannon Fredrick Kiser, filed a response. On appeal, petitioner argues that the circuit
court abused its discretion in admitting testimony of petitioner’s prior acts of violence against the
victim and in allowing a witness to testify as to her observations of the victim.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In January of 2011, the victim ended the relationship with petitioner and packed her
personal belongings in order to leave while he was asleep in the residence. Petitioner awoke
while the victim was removing her belongings. He blocked the victim’s escape and locked the
front door of the residence. Petitioner pushed the victim to the floor and dragged her into the
bedroom. He tore off the victim’s clothes, pushed her onto the bed, and attempted to sodomize
her. Petitioner told the victim that he would kill her if she moved from the bed. He left the room
to retrieve a videotape recorder and videotaped the victim’s rape. Petitioner held the victim
hostage for a period of time, threatened “to kill her by raping her,” and choked her. The victim
ultimately escaped the residence and drove to the residence of a friend and former co-worker.

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
                                                     1


Later in January of 2011, the victim filed for a domestic violence protective order based upon the
aforementioned incident. At the hearing, the victim testified that petitioner physically held her
against her will and sexually assaulted her. Petitioner admitted to holding the victim against her
will and preventing her from leaving the residence.

         In October of 2014, a grand jury indicted petitioner on one count of abduction of a person
and one count of second-degree sexual assault. In January of 2015, the circuit court held a
pretrial hearing regarding respondent’s motion to use evidence pursuant to Rule 404(b) of the
West Virginia Rules of Evidence.2 At the outset of the pretrial hearing, respondent presented the
audio recording of the domestic violence proceeding from January of 2011 and moved for its
admission. At the pretrial hearing, the victim testified to the history of domestic violence in the
relationship. According to the victim, petitioner became physically violent early in their
relationship. In regard to the specific incident in question, she testified that petitioner choked her,
raped her, sodomized her, and held her against her will. The victim also testified that she did not
report all the instances of abuse during the relationship. The victim recounted other instances of
abuse wherein petitioner attempted to smother her with a pillow, bit her on the cheek, pushed her
off the front porch after she suffered a miscarriage, and threatened to kill her dog. The victim
testified that she would use clothing and make-up to hide the bruising on her body and the
ruptured blood vessels on her face and eyes. Respondent argued that the recording of the
domestic violence hearing and the victim’s testimony showed petitioner’s “modus operandi and
absence of mistake.” At the close of the hearing, the circuit court concluded that the evidence in
question was not Rule 404(b) evidence. Instead, the circuit court determined that the victim’s
testimony was relevant firsthand testimony regarding petitioner’s crimes as charged. The circuit
court also determined that respondent established by a preponderance of the evidence that the
“acts did, in fact, happen” and the victim’s testimony was also permissible under 404(b) because
the testimony showed petitioner’s motive and an absence of mistake or accident.

        In January of 2015, petitioner’s jury trial commenced. As part of its case-in-chief,
respondent called the victim’s friend and former co-worker to testify. The witness testified that
she first noticed bruises on the victim sometime in late 2009 and was concerned for her safety.
She also testified that the bruises she saw on the victim were “obviously not [from] a bump
against the wall.” Petitioner objected to the witness’s statement on the basis that her statement
was speculative. The circuit court sustained petitioner’s objection but ruled that the witness could
testify as to the bruises she observed on the victim. The witness continued to testify and stated
that she observed bruises on the victim’s neck and arms on several occasions. She also stated that
“it would be hard to bump the inner part of your arm on the outside of a door.” Petitioner again
objected to the witness statement but the circuit court overruled the second objection. The
witness further testified that she observed the victim’s ripped clothing and chest wounds when
2
    Rule 404(b) of the West Virginia Rules of Evidence provides that

          [e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
          character in order to show that on a particular occasion the person acted in
          accordance with the character . . . may be admissible for another purpose, such as
          proving motive, opportunity, intent, preparation, plan, knowledge, identity,
          absence of mistake, or lack of accident.

                                                      2


the victim drove to her residence in January of 2011. After a two-day trial, the jury ultimately
found petitioner guilty of both counts as charged in the indictment. On January 26, 2015, the
circuit court entered a final order reflecting the jury’s verdict. In March of 2015, petitioner filed a
motion for a post-verdict judgment of acquittal or, in the alternative, a new trial on the grounds
that the evidence in the case was insufficient to sustain a conviction for the offenses as charged.
The circuit court denied petitioner’s motion.

        In July of 2015, petitioner was sentenced to a term of incarceration of not less than ten
nor more than twenty-five years for one count of abduction of a person and a term of
incarceration of not less than three nor more than ten years for one count of second-degree sexual
assault, with those sentences running consecutively. The circuit court also placed petitioner on
supervised release for an additional ten years. It is from this order petitioner now appeals.

       On appeal, petitioner first argues that the circuit court abused its discretion because it
admitted the evidence of petitioner’s prior acts of violence and sexual assault against the victim.
The Court reviews this and petitioner’s other assignment of error under the following standard:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Upon our review, we find no
error in the circuit court’s determination that the victim’s testimony regarding petitioner’s prior
acts of violence was intrinsic evidence and that her testimony was also admissible under Rule
404(b). We have previously held that “[e]vents, declarations and circumstances which are near in
time, causally connected with, and illustrative of transactions being investigated are generally
considered res gestae and admissible at trial.” Syl. Pt. 7, State v. McKinley, 234 W.Va. 143, 764
S.E.2d 303 (2014). As such, intrinsic evidence which is essential to the “indicted charge is not
governed by Rule 404(b).” State v. Harris, 230 W.Va. 717, 722, 742 S.E.2d 133, 138 (2013). We
have also held that prior act evidence is intrinsic when the evidence of the prior act and the crime
charged are “‘inextricably intertwined’ or . . . ‘necessary preliminaries’ to the crime charged.”
State v. LaRock, 196 W.Va. 294, 312 n. 29, 470 S.E.2d 613, 631 n. 29 (1996).

        Here, the victim’s testimony regarding prior incidents of physical and sexual abuse was
strikingly similar to petitioner’s indicted charges and her testimony demonstrated his pattern of
violence and abuse. The circuit court correctly determined that the victim’s first-hand testimony
was intrinsic and necessary “to complete the story of the crimes on trial.” State v. Dennis, 216
W.Va. 331, 352, 607 S.E.2d 437, 458 (2004). The facts in Dennis are particularly similar to the
facts of the case at hand. In Dennis, the victim testified that the defendant’s behavior was
controlling and possessive throughout the relationship and testified about specific incidences
where he used force to keep her away from other people, covered her mouth and nose with his
hand so that she could not breathe, held her captive in a house, raped her, slapped her, and hit her
on the legs with a telephone cord. Id. at 336-38, 607 S.E.2d at 442-44. She also testified that after

                                                      3


she terminated the relationship, he used force to get into her car and threatened to stab her
passenger in the neck with a screwdriver. Id. at 336, 607 S.E.2d at 442. On appeal, the defendant
in Dennis claimed that the victim’s testimony about alleged incidents occurring before his
underlying indictment was not relevant to the charges before the jury, thus making the testimony
inadmissible. Respondent countered by asserting that the circuit court properly determined that
the challenged evidence was res gestae and admissible. The circuit court held that the challenged
evidence was “‘[a] part of the fabric of the underlying charge,’ outside the customary Rule
404(b) procedure and analysis, making it unnecessary to conduct an in[-]camera hearing as set
forth in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).” 216 W. Va. at 351, 607
S.E.2d at 457. This Court affirmed the circuit court’s ruling and held that

              [w]hile 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. This is especially true in light of the
       domestic violence overlay to the pattern of behavior.

Id. at 352, 607 S.E.2d at 458. Similarly, the circuit court in this matter found that petitioner’s
history of domestic violence provided necessary context to the crimes charged. Accordingly, the
circuit court in this case did not err in admitting the evidence of petitioner’s prior acts of violence
against the victim.3

        Petitioner’s second assignment of error is that the circuit court abused its discretion by
allowing the victim’s friend and former co-worker to testify that she observed bruises on the
victim’s body. Petitioner claims that the witness should not have been allowed to testify about
her observations because she did not have knowledge of the origin of the victim’s bruises, was
not an expert on bruising, and observed the bruises two years prior to petitioner’s indictment.

         We find that the circuit court did not abuse its discretion in allowing the witness to
testify. For the purpose of determining whether a witness can testify, we have generally held that
“[w]hether a witness is qualified to state an opinion is a matter which rests within the discretion
of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly
appears that its discretion has been abused.” Syl Pt. 7, Lewis v. Mosorjak, 143 W.Va. 648, 104
S.E.2d 294 (1958). We have further held that “the opinion of a witness is admissible in evidence
if [she] had some peculiar qualification and has more knowledge of the subject than jurors are

       3
         Furthermore, based upon the victim’s pretrial testimony, petitioner’s prior bad acts
would have been admissible under Rule 404(b) of the West Virginia Rules of Evidence. Rule
404(b)(2) provides that evidence of crimes, wrongs, or other acts “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” The victim’s testimony regarding incidents of
petitioner’s past violent behavior satisfied a number of acceptable purposes set forth in Rule
404(b)(2), including proving motive, opportunity, and a lack of accident. “[I]t seems doubtful
that this case could have been appropriately presented without such background information”
regarding petitioner’s pattern of abuse. State v. Dennis, 216 W.Va. 331, 352, 607 S.E.2d 437,
458 (2004).
                                                      4


ordinarily supposed to possess.” Id. at 667, 104 S.E.2d at 305. In this case, as a friend and former
co-worker, the witness was in a position to observe the victim and the bruises on her neck and
arms and convey her observations to the jury. “A witness who is acquainted with a particular
subject may express [her] opinion concerning it and, though not an expert and not regarded as
such, [her] evidence is competent and its weight and credibility are for the jury.” Id. at 668, 104
S.E.2d at 305. The circuit court did not abuse its discretion in admitting this evidence, as the
witness simply testified to her own observations and her stated opinion that the placement of
certain bruises on the victim meant that they were not accidental. The evidence was therefore
admissible and it was the province of the jury to determine its weight and its credibility. For
these reasons, we find no error in the circuit court’s admission of the witness testimony.

       For the foregoing reasons, we find no error in the circuit court’s decision, and its January
26, 2015, order is affirmed.

                                                                                          Affirmed


ISSUED: November 14, 2016


CONCURRED IN BY:

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




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