                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                November 19, 2018
vs.) No. 17-0714 (Berkeley County 17-F-42)                                       EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 
Daniel M.,
Defendant Below, Petitioner


                                                          MEMORANDUM DECISION
         Petitioner Daniel M., by counsel Stephanie E. Scales-Sherrin, appeals the Circuit Court of
Berkeley County’s July 17, 2017, order sentencing him to one to five years of incarceration for
his conviction of child abuse resulting in injury and six months in the regional jail for his
conviction of domestic battery.1 The State of West Virginia, by counsel Gordon L. Mowen II,
filed a response in support of the circuit court’s order. On appeal, petitioner argues that the court
erred in (1) designating the victim as an unavailable witness and permitting the State to use, and
publish to the jury, a transcript of her testimony from a related domestic violence proceeding; (2)
prohibiting him from introducing evidence concerning plea negotiations; and (3) denying his
motion for a new trial. Lastly, petitioner alleges that the evidence was insufficient to support his
conviction.

        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 February of 2017, petitioner was indicted on one count of child abuse resulting in
injury, one count of domestic battery, and one count of strangulation. These charges stemmed
from an incident in November of 2016 wherein petitioner was involved in a physical altercation
with his stepdaughter. According to evidence introduced at trial, in November of 2016, the
victim, R.F., was getting ready for swim practice. Petitioner and the victim’s mother were
                                                            
              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
 
waiting for her to leave. At some point, petitioner confronted the victim and told her to “hurry
up.” Petitioner continued to verbally assault the victim and obstructed the victim’s path between
the bathroom and her bedroom. The victim indicated that during their physical altercation,
petitioner knocked her into a banister, put his hand on her chest to shove her into a wall,
slammed her to the floor, and restricted her breathing for between three and five seconds by
grabbing her neck. After the altercation, the victim and her mother reported the incident to law
enforcement and the victim underwent a medical examination.

        In May of 2017, petitioner’s jury trial took place over three days. At trial, petitioner
presented a defense in which he alleged that the victim was the initial aggressor and he merely
restrained her during their altercation. Petitioner further alleged that “bringing the matter to trial
was the result of an overzealous prosecution” given that that victim and her mother expressed a
desire that the matter not be prosecuted. In support of this defense, petitioner introduced a letter
from the victim and her mother to the prosecuting attorney sent shortly before trial that indicated
that neither individual wished for petitioner to be prosecuted for these crimes.

        The State first called the victim, who testified to her version of the physical altercation at
issue. However, when questioned about her prior testimony during a related proceeding to obtain
a domestic violence protective order (“DVPO”) against petitioner, the victim indicated that she
could not recall much of that prior testimony. In response to several questions, the victim
provided testimony that was inconsistent with the testimony she provided at the prior DVPO
proceeding. Consequently, the prosecutor relied on the victim’s prior testimony to refresh her
recollection several times. Eventually, the State moved for the circuit court to declare the victim
an unavailable witness under Rule 804 of the West Virginia Rules of Evidence and permit the
State to introduce the victim’s prior testimony into evidence. Ultimately, the circuit court
declined to designate the witness as unavailable and further declined to permit the introduction of
the prior statement into evidence. The circuit court did, however, permit the State “liberal use of
the prior statement” for purposes of impeachment, including permitting the State to project
portions of the transcript from the prior proceeding in the courtroom. Thereafter, the victim was
permitted to testify about the event itself and also provide further explanation regarding her prior
testimony at the DVPO proceeding.

        In relation to the incident in question, the victim mostly confirmed her earlier testimony,
including that petitioner threw her to the floor “like a body slam” multiple times, resulting in her
head hitting a wall and the floor. She further testified that petitioner “chok[ed her] on the
ground” for between three and five seconds. According to the victim, she was unable to breathe
and “was trying to scream, [but] just couldn’t.” The victim also testified to injuries sustained
during this altercation, including bruising to her elbows, eye, and foot; a mark on her neck where
petitioner choked her; and multiple scratches to various parts of her body. According to the
victim, petitioner initiated the physical altercation when he shoved her. The victim also testified
to obtaining medical treatment for her injuries and confirmed that she told medical personnel that
she suffered discomfort when swallowing due to petitioner choking her.

      The victim’s mother also testified at trial and recalled that the victim was screaming
when she exited the home after the altercation, describing the victim as “hysterical” at that time.
According to the mother, the victim indicated that petitioner attacked her and told her that her

                                                  2
 
head hurt and her throat was sore as a result of the physical altercation. The mother also testified
to reporting the incident to the police and taking the victim to obtain medical treatment.

        The State also presented the testimony of Betty Fisher, who was qualified as an expert
forensic nurse examiner. Ms. Fisher examined the victim shortly after the incident and testified
that the victim reported that she was in a fight with petitioner during which he threw her to the
floor and “held [her] down to the floor by her neck[,]” among other acts. Ms. Fisher testified that
the victim reported pain in her right lateral chest, joint and neck pain, pain in her left foot,
tenderness on her right ribs, and difficulty seeing and hearing. According to Ms. Fisher, the
victim also reported difficulty swallowing as a result of the physical altercation. After examining
the victim, Ms. Fisher determined that she suffered an abrasion on her right side, a bruise to her
left eye, a bruise on her left ankle, and an abrasion on her right wrist. According to Ms. Fisher,
these injuries were consistent with the physical altercation described by the victim. Additionally,
the State introduced photographs of these injuries during Ms. Fisher’s testimony.

         Petitioner testified to his version of the physical altercation. According to petitioner, the
victim initiated physical contact by running into him. He then “went after her verbally. . . .” After
the victim attempted to walk past him, petitioner indicated that he “put [his] hand on her chest
and just stopped her against the wall.” After telling the victim that he “should just beat [her] ass
right now[,]” petitioner then put his hand back on her chest and “put her against the wall.”
According to petitioner, the victim then sunk her fingernails into his chest and slapped his face,
at which point he grabbed both her wrists and “more forcefully put her against the wall. . . .”
Petitioner claimed the victim then bit him on the chest and lunged at him, at which point he “let
her momentum and weight” take them both to the ground. Once on the ground, petitioner
indicated that he kept the victim pinned so that she could not attack him further. This included
his “hand going to her neck” so that the victim could not bite him again. Upon releasing the
victim, petitioner claimed that she “started clawing at [his] chest again and [his] arms.” This
caused petitioner to take the victim back to the floor. After more struggling on the floor,
petitioner eventually let the victim up, at which point he testified that she grabbed her bag and
ran downstairs. Although petitioner claimed to have been injured during this altercation, he
testified that no one saw those injuries. Ultimately, the jury convicted petitioner of child abuse
resulting in injury and domestic battery. The jury acquitted petitioner of strangulation.

        In July of 2017, the circuit court held a sentencing hearing during which it imposed a
sentence of one to five years of incarceration and a $100 fine for petitioner’s conviction of child
abuse resulting in injury and six months in the regional jail for petitioner’s conviction of
domestic battery, said sentences to be served consecutively. However, the circuit court
suspended these sentences in favor of three years of supervised probation. The circuit court also
imposed a period of five years of supervised release and informed petitioner that he was required
to register as a child abuser for a period of ten years.

        In August of 2017, petitioner filed a motion for a new trial. In support of his motion,
petitioner alleged that he obtained newly discovered evidence that supported his theory of
overzealous prosecution. Specifically, he alleged that during jury deliberations, the victim’s
mother was terminated from her employment with the Berkeley County Prosecuting Attorney’s
Office “in retaliation for her unwillingness to testify in a negative manner” toward petitioner at

                                                  3
 
trial. The circuit court denied the motion, in part, upon petitioner’s failure to provide supporting
affidavits, as required by law. It is from the circuit court’s sentencing order that petitioner
appeals.

              This Court has previously established the following standard of review:

                     “In reviewing challenges to the findings and conclusions of the circuit
              court, we apply a two-prong deferential standard of review. We review the final
              order and the ultimate disposition 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. 2, State v.
              Hinchman, 214 W.Va. 624, 591 S.E.2d 182 (2003).

Syl. Pt. 1, State v. Seen, 235 W.Va. 174, 772 S.E.2d 359 (2015).

        First, petitioner alleges that the circuit court erred in designating the victim as an
unavailable witness under Rule 804 of the West Virginia Rules of Evidence and in allowing the
State to read from, and publish to the jury, her testimony from the prior DVPO proceeding. As a
preliminary matter, we note that petitioner’s assignment of error misstates the record below, as
there is no indication that the circuit court ever designated the victim as an unavailable witness.
The record shows that although the State moved to have the witness designated as unavailable,
the circuit court specifically indicated that it was “not going to say yay or nay on the
unavailability/804/confrontation” issue.2 Given that the majority of petitioner’s argument on
appeal is predicated on his assertion that the circuit court erred in its application of Rule 804 in
designating the witness as unavailable, it is clear that he is entitled to no relief upon any of these
grounds.

                                                            
              2
          In support of his assignment of error, petitioner cites to additional statements from the
circuit court to argue that the circuit court designated the witness as unavailable. According to
petitioner, the circuit court indicated that it was “going to make a decision as to [the victim’s]
unavailability for purposes of 804. . . .” Relying solely on this language, petitioner concludes that
the circuit court granted the State’s motion and designated the witness as unavailable. We
disagree. Instead, this language simply indicates only that the circuit court intended to make a
ruling on the issue; however, at no point in the remainder of the transcript does the circuit court
ever explicitly indicate that it has designated the witness as unavailable. This language could
equally have indicated that the circuit court intended to rule against the State. Indeed, the record
supports a finding that the circuit court did not designate the witness as unavailable, given that it
explicitly ruled that the victim “needs to be on the stand to explain herself” in relation to her
prior testimony at the DVPO proceeding. Further, the circuit court ruled that “of course [the
victim is] going to be subject to cross[-]examination.” Finally, the circuit court ruled that it
would permit the State to “demonstrate that the version [of her testimony] that she gave prior [to
trial] is not consistent with what . . . you’re getting today[,]” indicating that the prior testimony
was used for impeachment purposes. In short, petitioner has simply failed to cite to any portion
of the record wherein the circuit court designated the witness as unavailable.



                                                               4
 
        Further, petitioner concedes that the victim’s prior testimony “could have been properly
introduced by the State for impeachment purposes[,]” although he alleges that “the transcript
would not be admissible” in the same manner as he alleges it was introduced at trial.3 Indeed, we
have held that “Rule 607 of the West Virginia Rules of Evidence allows a party, including the
one who called the witness, to impeach a witness by a prior inconsistent statement.” Syl. Pt. 3,
State v. Collins, 186 W.Va. 1, 409 S.E.2d 181 (1990). However, petitioner’s argument again
misstates the record, as the portions of the transcript the State relied upon to impeach the witness
were not admitted into evidence. Instead, the State simply read from the victim’s prior testimony
for purposes of impeaching her testimony at trial. To the extent that petitioner argues that
publishing those portions of the transcript to the jury during the witness’s testimony was
improper, we find no error given that they were not admitted into evidence and the jury was free
to hear the statements by way of impeachment. “A trial court’s evidentiary rulings, as well as its
application of the West Virginia Rules of Evidence, are subject to review under an abuse of
discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
Based on the foregoing, we find that petitioner is entitled to no relief.

        Next, petitioner argues that the evidence introduced at trial was insufficient to support his
conviction for child abuse resulting in injury because the element of bodily injury was not
satisfied.4 Under West Virginia Code § 61-8D-3(a), “[i]f any parent, guardian or custodian shall
abuse a child and by such abuse cause such child bodily injury as such term is defined in section
one, article eight-b of this chapter, then such parent, guardian or custodian shall be guilty of a
felony. . . .” According to West Virginia Code § 61-8B-1(9), “‘[b]odily injury’ means substantial
physical pain, illness or any impairment of physical condition.” On appeal, petitioner argues that
the evidence presented below does not meet the statutory definition of “bodily injury” required to
convict him of this crime. We disagree.

              We have previously held as follows:
                                                            
              3
         Petitioner similarly concedes that the transcript could have been used to refresh the
witness’s recollection under Rule 612 of the West Virginia Rules of Evidence, which governs the
use of a writing to refresh a witness’s memory. According to petitioner, that rule addresses “an
adverse party[’s]” options when using a writing to refresh a witness’s memory. He further argues
that the victim was the State’s witness and, thus, the State was required to first designate her as
an adverse witness. We note, however, that petitioner did not object to the State’s use of the prior
testimony for purposes of refreshing the witness’s recollection. Prior to the State’s motion to
declare the witness unavailable, the State engaged in multiple instances of refreshing the victim’s
recollection. At no point during this exchange did petitioner object on the grounds that the State
failed to first have the witness declared adversarial. “‘Our general rule is that nonjurisdictional
questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme
Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v.
W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly,
we decline to address this issue on appeal.
              4
        On appeal, petitioner does not argue that the evidence was insufficient to support his
conviction for domestic battery. Accordingly, that conviction is not at issue.



                                                               5
 
               “A criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. Seen, 235 W.Va. 174, 772 S.E.2d 359 (2015). Here, viewing the evidence in a
light most favorable to the prosecution, it is clear that sufficient evidence existed to support
petitioner’s conviction for child abuse resulting in injury. On appeal, petitioner simply asserts
that any injuries the victim suffered, such as scrapes, bruises, and soreness, were minor and “do
not rise to the level of substantial physical pain, illness, or any impairment of physical condition”
sufficient to support his conviction. Petitioner’s argument, however, misstates the record and
discounts the jury’s conclusion that the victim suffered bodily injury as a result of petitioner’s
attack.

        While it is true that the victim testified that she did not experience any “substantial
physical pain from [her] injuries” and that none of her injuries were extreme, the jury also heard
evidence from Ms. Fisher, the nurse who examined the victim shortly after the attack. According
to Ms. Fisher, the victim reported a number of injuries, including a bruise to her left eye, pain in
her right lateral chest, joint and neck pain, and difficulty seeing and hearing immediately after
the attack. Moreover, the victim testified that petitioner held her by her neck for approximately
three seconds such that she was unable to breath and with enough force to leave a thumbprint on
her neck. Ms. Fisher corroborated this fact and indicated that the victim told her that, on a scale
of one to ten, the force petitioner applied to her neck was equivalent to an eight. As such, it is
clear that the jury was presented with sufficient evidence upon which to find that the victim
suffered bodily injury. Accordingly, we find petitioner is entitled to no relief in this regard.

        Next, petitioner argues that the circuit court abused its discretion in prohibiting him from
presenting evidence about an alleged threat by the State made during plea negotiations.
According to petitioner, at the preliminary hearing the State indicated that if petitioner did not
accept a proposed plea agreement to enter a pretrial diversion program then it would seek an
indictment on the felony offense of strangulation. At trial, petitioner sought to introduce
evidence in support of this alleged threat to support his defense that the charges against him were
the result not of his guilt but of overzealous prosecution. The circuit court, however, ruled that
this evidence should be excluded under Rule 403 of the Rules of Evidence. We agree.

        At the outset, we decline to adopt petitioner’s interpretation of the alleged statement by
the State during plea negotiations in this case. Assuming that petitioner is correct that the State

                                                 6
 
did indicate that it would seek additional charges if a plea agreement was not reached, we note
that it is routine for prosecuting attorneys to engage in such negotiations. Indeed, the very basis
of plea negotiations is that a criminal defendant agrees to forego trial in exchange for the State’s
promise to reduce or even dismiss certain charges. State v. Palmer, 206 W.Va. 306, 310, 524
S.E.2d 661, 665 (1999) (addressing the requirement that the State fulfill a plea agreement when a
defendant’s plea is induced upon a promise). While petitioner characterizes the alleged statement
as a threat, it is clear that this was more accurately a promise to not seek an indictment on the
additional charge of strangulation should petitioner enter into a plea agreement. As such, we
decline to accept petitioner’s characterization that the State threatened him during the negotiation
process by indicating that additional charges could be sought if a plea deal was not reached.

        Moreover, we agree with the circuit court that petitioner’s attempt to introduce evidence
of the plea negotiations would have resulted in unnecessary confusion of the issues at trial.
According to Rule 403, “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: . . . confusing the issues,
misleading the jury. . . .” Simply put, the introduction of this evidence would have unnecessarily
confused the issues at trial, given that the prosecution’s decision to pursue an additional charge
of strangulation does not speak to any essential element of that crime or otherwise provide
petitioner a defense to the charge. While petitioner argues that his theory of defense at trial was
that “the charges against him were the product of an overreaching prosecution[,]” this theory has
nothing to do with the sufficiency of the evidence against him. As such, we find that the circuit
court did not err in excluding this evidence.

        Finally, petitioner argues that the circuit court erred in denying his motion for a new trial.
According to petitioner, he obtained new evidence that, during jury deliberations, the victim’s
mother was terminated from her employment with the Berkeley County Prosecuting Attorney’s
office. According to petitioner, the victim’s mother “would [have] testif[ied] that she believes
she was terminated from employment due to not testifying favorabl[y] for the prosecution at
trial.” On appeal, petitioner argues that this evidence would have further supported his defense
that “the matter was pursued by an overreaching prosecution. . . .” As such, he asserts that it was
error for the circuit court to deny his motion for a new trial.5 We disagree.

              We have previously held as follows:

                     “A new trial will not be granted on the ground of newly[]discovered
              evidence unless the case comes within the following rules: (1) The evidence must
              appear to have been discovered since the trial, and, from the affidavit of the new
                                                            
              5
         In his motion for a new trial, petitioner additionally alleged that the victim “changed her
story” and indicated at sentencing that she “didn’t tell the whole truth” about the physical
altercation at issue. Petitioner also reiterated his assertion that the prosecution pressured the
victim and her mother into testifying against him. However, on appeal to this Court, petitioner
takes issue only with the circuit court’s ruling in regard to his allegation that the victim’s
mother’s firing constituted newly discovered evidence. As such, we will address the circuit
court’s ruling in regard to this lone issue on appeal.



                                                               7
 
       witness, what such evidence will be, or its absence satisfactorily explained. (2) It
       must appear from facts stated in his affidavit that plaintiff was diligent in
       ascertaining and securing his evidence, and that the new evidence is such that due
       diligence would not have secured it before the verdict. (3) Such evidence must be
       new and material, and not merely cumulative; and cumulative evidence is
       additional evidence of the same kind to the same point. (4) The evidence must be
       such as ought to produce an opposite result at a second trial on the merits. (5) And
       the new trial will generally be refused when the sole object of the new evidence is
       to discredit or impeach a witness on the opposite side.” Syllabus Point 1, Halstead
       v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

Syl., State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979). As the circuit court noted below,
petitioner failed to provide any affidavits in support of his motion as required. We agree with the
circuit court that petitioner’s failure to include any supporting affidavits required denial of his
motion for a new trial. In short, petitioner simply alleged, without any evidence in support, that
the victim’s mother was terminated from her employment and would testify that it was a result of
her refusal to cooperate with the prosecution in petitioner’s criminal trial. As such, petitioner was
unable to satisfy the elements necessary to obtain a new trial based on newly discovered
evidence, and we find no error in the circuit court’s denial of the motion.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.


ISSUED: November 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment
 




                                                 8
 
