                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS


State of West Virginia,                                                               FILED
Plaintiff Below, Respondent                                                         June 10, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 11-1495 (Ohio County 11-F-77)                                            OF WEST VIRGINIA


Robert L. Paige,
Defendant Below, Petitioner


                                   MEMORANDUM DECISION

        Petitioner Robert Paige, by counsel Peter Kurelac III,1 appeals the Circuit Court of Ohio
County’s “Commitment Order”, wherein he was convicted of one count of second degree sexual
assault and one count of third degree sexual assault by order entered on September 21, 2011.The
State of West Virginia, by counsel Laura Young, has filed its response and a supplemental
appendix.

       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 May of 2011, petitioner was indicted on one count of second degree sexual assault and
one count of third degree sexual assault. Following a three-day trial, petitioner was convicted on
both counts. Petitioner was sentenced to consecutive sentences for a term of incarceration of ten
to twenty-five years for second degree sexual assault and one to five years for third degree sexual
assault. Petitioner was also sentenced to fifty years of supervised release.

        On appeal, petitioner alleges that the circuit court committed plain error in failing to
declare a mistrial subsequent to the alleged victim’s courtroom outburst that unduly influenced
the jury and created irreversible bias against the petitioner. Petitioner argues that it is impossible
to gauge what effect the victim’s outburst may have had on the jury without polling them.
Petitioner argues that the victim’s testimony, in which she identified petitioner by his nickname,
was coached because the victim was “mentally defective,” her IQ was in the lowest percentile of
the general population, and she never identified petitioner prior to her testimony. Moreover,
petitioner’s nickname only appears on internal police documents and she repeatedly used his
nickname. Petitioner argues that the victim’s testimony was coached because prior to her direct

       1
           Counsel filed his brief pursuant to Anders v. Cal., 386 U.S. 738 (1967).
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testimony, the victim never identified petitioner by name or nickname. Petitioner states that if the
victim identified petitioner by his nickname, for the first time while preparing her testimony, the
State was obligated to disclose that the victim identified the petitioner by his nickname pursuant
to the West Virginia Rules of Criminal Procedure.

        The State argues that petitioner waived his right regarding the victim’s alleged outburst
during the beginning of her direct testimony because petitioner failed to present a record for
appeal that would allow this Court to adequately address this assignment of error. Additionally,
the State argues that petitioner failed to properly object when the victim identified petitioner and
actively participated in cross-examining the victim about her knowledge of petitioner’s name.
Finally, the State argues that plain error does not apply because petitioner’s rights were not
substantially affected.

        “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995). Moreover, this Court has stated:

       Under the “plain error” doctrine, “waiver” of error must be distinguished from
       “forfeiture” of a right. A deviation from a rule of law is error unless there is a
       waiver. When there has been a knowing and intentional relinquishment or
       abandonment of a known right, there is no error and the inquiry as to the effect of a
       deviation from the rule of law need not be determined. By contrast, mere forfeiture
       of a right-the failure to make timely assertion of the right-does not extinguish the
       error. In such a circumstance, it is necessary to continue the inquiry and to
       determine whether the error is “plain.” To be “plain,” the error must be “clear” or
       “obvious.”

Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). This Court has also stated as
follows:

       The decision to declare a mistrial, discharge the jury and order a new trial in a
       criminal case is a matter within the sound discretion of the trial court. State v.
       Craft, 131 W.Va. 195, 47 S.E.2d 681 (1948). A trial court is empowered to
       exercise this discretion only when there is a “manifest necessity” for discharging
       the jury before it has rendered its verdict. W.Va.Code § 62-3-7 (1977 Replacement
       Vol.). This power of the trial court must be exercised wisely; absent the existence
       of manifest necessity, a trial court's discharge of the jury without rendering a
       verdict has the effect of an acquittal of the accused and gives rise to a plea of
       double jeopardy. See State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474
       (1972); State ex rel. Dandy v. Thompson, 148 W.Va. 263, 134 S.E.2d 730, cert.
       denied, 379 U.S. 819, 85 S.Ct. 39, 13 L.Ed.2d 30 (1964); State v. Little, 120 W.Va.
       213, 197 S.E. 626 (1938).



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State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983). First, the trial transcript
contains absolutely no information about the victim’s outburst, just that a brief recess was taken
shortly after she began her direct testimony. Following a discussion in chambers, it was decided,
over petitioner’s counsel’s objection, that the victim would testify from counsel’s table and the
jury would not be polled to determine if any prejudice resulted from the outburst. Rule 10(c)(7) of
the West Virginia Rules of Appellate Procedure requires that petitioner’s brief contains an
argument exhibiting clearly the points of fact and law presented. That Rule also requires that such
argument “contain appropriate and specific citations to the record on appeal, including citations
that pinpoint when and how the issues in the assignments of error were presented to the lower
tribunal. The Court may disregard errors that are not adequately supported by specific references
to the record on appeal.” It is an appellant’s burden to show the error in judgment of which he
complains. See Syl. Pt. 2, W.Va. Dept. of Health & Hum. Res. Emps.Fed. Credit Union v.
Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004). Petitioner’s argument is without support from
the record below and, therefore, we find no merit.

        Additionally, the Court concludes that petitioner waived any alleged error in the victim’s
testimony identifying petitioner by his name or nickname. A review of the record clearly reflects
that petitioner’s counsel failed to object to the victim’s testimony and proceeded to cross-examine
the victim regarding how she learned petitioner’s name and if anyone told her what to say.
Furthermore, even if it was error to permit the identifying statement, it did not affect petitioner’s
substantive rights because petitioner, himself, testified to having sexual intercourse with the
victim, that he did not know the victim, and petitioner’s DNA matched the DNA recovered from
the rape kit performed on the victim. Any error found herein does not rise to the level of plain
error.

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



                                                                                          Affirmed.

ISSUED: June 10, 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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