                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                    January 9, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0198 (Ohio County 13-F-67)                                          OF WEST VIRGINIA


Benjamin E. Lobb,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Benjamin E. Lobb, by counsel, Samuel R. Stillwell, appeals his conviction of
battery and domestic violence, and the January 24, 2014, order of the Circuit Court of Ohio
County denying his motion for new trial. Respondent State of West Virginia (“the State”), by
counsel, Julie A. Warren, responds in support of the circuit court’s order.

        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.

                                               Facts

        On May 13, 2013, the Ohio County Grand Jury returned a two count indictment against
petitioner, which included one charge of domestic violence (third offense) and one charge of
malicious assault.1 Prior to petitioner’s jury trial on these charges, petitioner’s counsel filed
several motions, including a motion to exclude, as hearsay, portions of the statements made by
the victim to medical personnel following the February 22, 2013, incident. Petitioner also filed a
motion to compel the State to elect to proceed to trial on either the domestic battery charge or the
malicious assault charge of the indictment, as battery was a lesser included offense of both
charges. By order dated September 16, 2013, the circuit court denied both petitioner’s motion to
compel and motion to exclude. The case against petitioner proceeded to trial.2

       1
         The indictment arose from a February 22, 2013, incident wherein petitioner was accused
of striking his then girlfriend in the head and/or face. Petitioner had previously been convicted of
domestic battery in 1998 and 2006.
       2
         At trial, the State called two of the victim’s doctors to testify regarding the victim’s
injuries. The doctors’ testimony included mention of the verbal statements made by the victim to
the doctors regarding the identity of her attacker.
                                                 1
        During the presentation of its case-in-chief, the State called Sergeant DeBerry (a West
Virginia State Trooper), as a witness. Sergeant DeBerry testified as to the injuries he observed on
the victim during his post-incident interview of her. On cross-examination, petitioner’s counsel
asked Sergeant DeBerry if he was aware of any other suspects who may have caused the victim’s
injuries, aside from petitioner. After testifying that he did not recall, petitioner’s counsel asked
Sergeant DeBerry, if it would refresh his recollection if he were allowed to read the police report
(which had been complied by another officer). Sergeant DeBerry replied in the affirmative.

        After presenting the report to Sergeant DeBerry, and allowing him to read the report to
himself, petitioner’s counsel again asked Sergeant DeBerry if he was aware of any other suspects
in the case, to which Sergeant DeBerry replied “Ben Lobb’s girlfriend.” The State subsequently
moved to admit the entire police report into evidence, as the report contained statements by
individuals (other than Sergeant DeBerry) who did not testify at trial. Over the objection of
petitioner’s counsel, the entire police report was admitted into evidence. The trial court reasoned
that since petitioner had been afforded the opportunity to discuss the entire police report with a
witness during a cross-examination, that, pursuant to the provisions of Rule 106 of the West
Virginia Rules of Evidence, it would be unfair for the court to deny the opportunity for the State
to do the same.

        On September 17, 2013, the jury returned a verdict against petitioner as to both counts of
the indictment. Petitioner was found guilty of domestic battery and of the lesser included charge
of battery. Petitioner filed a motion for new trial, in which he argued that the circuit court
erroneously permitted the entire police report to be admitted into evidence, because it prejudiced
the jury against him and violated his right to confront his accuser.

        On November 1, 2013, the circuit court heard petitioner’s motion for a new trial and
conducted a sentencing hearing. Petitioner was sentenced to not less than one, nor more than five
years in the penitentiary (as to count one). The circuit court did not impose a sentence on the
battery conviction (count two), as the court found that it could not sentence petitioner to both a
domestic battery and a battery charge. On January 24, 2014, the trial court entered its order
denying petitioner’s motion for new trial. Petitioner now appeals from that order.

                                            Discussion

    Petitioner raises three assignments of error on appeal. First, petitioner argues that the circuit
court committed clear error when it allowed the entire police report to be entered into evidence.
Petitioner contends that, by allowing the entire police report to be considered by the jury,
petitioner was prejudiced.3 Petitioner further contends that the court committed clear error in




       3
         The police report contained several witness statements (at least one from a witness who
did not testify at trial) and a reference to petitioner’s prior convictions for domestic violence.

                                                 2
admitting the entire police report, as the report included hearsay statements.4 With respect to the
admission of evidence, this Court has held that “‘[t]he action of a trial court in admitting or
excluding evidence in the exercise of its discretion will not be disturbed by the appellate court
unless it appears that such action amounts to an abuse of discretion.’ Syllabus point 10, State v.
Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v.
Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. Pt. 1, State v. Calloway, 207 W.Va. 43, 528
S.E.2d 490 (1999).

    In this case, the circuit court permitted the admission of entire police report into evidence,
pursuant to Rule 106 of the West Virginia Rules of Evidence.5 A review of the record presented
establishes that petitioner’s counsel, prior to the admission of the police report into evidence,
attempted to cross-examine Sergeant DeBerry regarding witness statements contained within the
police report. The State objected to petitioner’s counsel’s line of questioning and argued that the
witness statements were inadmissible hearsay.6 Petitioner’s counsel responded that the witness
statements were not hearsay, as they were part of the “investigative file.” The circuit court
permitted petitioner’s counsel to continue with this line of questioning with Sergeant DeBerry,
after petitioner’s counsel laid a foundation for the police report. At the conclusion of petitioner’s
counsel’s line of questioning, the State’s counsel requested that the entire police report be
admitted into evidence. Petitioner’s counsel objected and then argued that witness statements in
the police report were inadmissible hearsay.

       4
         Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” W.Va. R. of Evid.
801(c). It is inadmissible unless provided by rule. W.Va. R. of Evid. 802.
       5
         Rule 106 of the West Virginia Rules of Evidence provides that “[w]hen a writing or
recorded statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded statement which ought
in fairness to be considered contemporaneously with it.”

        Revisions to the West Virginia Rules of Evidence, including Rule 106, were approved by
this Court’s June 2, 2014, Order and became effective on September 2, 2014. The revised Rule
106 provides that “[i]f a party introduces all or part of a writing or recorded statement, an
adverse party may request the introduction, at that time, of any other part – or any other writing
or recorded statement – that in fairness ought to be considered at the same time.”

        In the comment on the revisions to Rule 106, it is noted that Rule 106 is taken verbatim
from its federal counterpart, except for the use of the term “request” instead of “require” in the
first sentence. The comment further notes that “[t]he adverse party does not have the absolute
right to place the entire writing or recorded statement in evidence.” The comment cautions trial
courts to “limit the introduction, by an adverse party, of any other part of a writing or recorded
statement to information that is relevant or assists the jury in placing the writing or recorded
statement in context.”
       6
       The State objected to this line of questioning as the statements on which Sargent
DeBerry was being questioned were not his statements and, thus, were hearsay.
                                                 3
    Regarding the admissibility of the entire police report into evidence, the circuit court
reasoned as follows:

   THE COURT:                 The statements, as I understand, are contained in a report that the
                              defendant got into on cross-examination.

   STATE’S COUNSEL:           Yes.

   THE COURT:                 And argued that it was not hearsay, presumably because it
                              constituted the police report exception, and I instructed counsel to
                              lay a foundation. He proceeded to do that and the report was
                              discussed at length. Now, I don’t – I think it would be
                              fundamentally unfair for me to now tell the State they can’t discuss
                              it when you were permitted to on your cross.

    The circuit court reasoned that if the witness statements, which were the basis of petitioner’s
counsel’s objection, were contained in the police report about which petitioner’s counsel was
permitted to question Sergeant DeBerry extensively during cross-examination, then the entire
police report was admissible. We agree with the circuit court’s ruling and find no clear error or
abuse of discretion in permitting the admission of the entire police report into evidence.7

    Petitioner did not object to the admissibility of the testimony concerning the evidence in the
police report that he believed was helpful to his case (the witness statements referring to other
possible suspects), but sought to restrict the jury’s access to the remainder of the police report
that disputed this evidence. We concur with the circuit court’s reasoning that, in fairness, the
State was permitted to introduce the entire report so that the statements highlighted by
petitioner’s counsel could be placed in context of the entire police investigation.

    Second, petitioner argues that the circuit court erred in its denial of his pre-trial motion to
elect. In denying his motion to elect, the circuit court permitted petitioner to be tried on both
counts of the indictment (malicious assault--with its lesser included offense of battery--and
domestic battery), which petitioner contends was tantamount to double jeopardy. Upon our
review, we disagree with petitioner.

   Double jeopardy claims are reviewed under a de novo standard. State v. Williams, 215 W.Va.
201, 599 S.E.2d 624 (2004). In syllabus point 7 of State v. Gill, 187 W.Va. 136, 416 S.E.2d 253
(1992), we ruled that “a claim that double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as to
punishment.” The analysis of the legislative intent “should look initially at the language of the

       7
         We note that petitioner’s counsel did not make any argument, in his appellate brief or
otherwise referenced in the record, that the admission of the entire police report (which
reportedly contained references to petitioner’s previous domestic violence convictions)
constituted the admission of improper other bad act evidence. Accordingly, that issue is not
properly before us and we do not address any such arguments in this decision. Syl. Pt. 6, Addair
v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981).
                                                4
involved statutes and, if necessary, the legislative history to determine if the legislature has made
a clear expression of its intention to aggregate sentences for related crimes,” and absent a clear
legislative intent, “the court should analyze the statutes under the test set forth in Blockburger v.
U.S., 284 U.S. 299, 52 S.Ct. 180 (1932).” Id. at 138, 416 S.E.2d at 255, syl. pt. 8, in part.8

        As to the domestic violence (third offense), the State must show that petitioner had been
convicted on two prior occasions of domestic violence/domestic battery, and that a relationship
existed between petitioner and the victim.9 In order to prove malicious assault, the State must
prove that when petitioner caused the victim bodily injury, that he did so with the requisite intent
to “maim, disfigure, disable or kill” the victim.10 Charges of domestic violence (third offense)
and malicious assault arise from two distinct statutory provisions and require proof of different
facts. For this reason, we find that the circuit court did not abuse it’s discretion in denying
petitioner’s motion to elect.

    Petitioner’s third and final assignment of error is that the circuit court abused its discretion in
denying petitioner’s motion to preclude the State’s medical witnesses from testifying as to the
identity of the person the victim named as causing her injuries. Petitioner alleged that the
victim’s statements to medical personnel (identifying her attacker) were hearsay and had nothing
to do with any treatment the victim received. Conversely, the State argued that the doctor’s
statements regarding the victim’s identification of petitioner as her attacker were admissible,
pursuant to Rule 803(d) of the West Virginia Rules of Evidence.11

       8
         In Blockburger, the United States Supreme Court found that “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.
       9
         The elements for domestic violence, third offense, are set forth in West Virginia Code §
61-2-28(d), and provide that: “[a]ny person who has been convicted of a third or subsequent
violation of the provisions of subsection (a) [domestic battery] or (b) [domestic assault] of this
section. . . .where the victim was a current or former spouse, current or former sexual or
intimate partner . . . , is guilty of a felony if the offense occurred within ten years of a prior
conviction of any of these offenses. . . .”
       10
         The elements of malicious assault, set forth in West Virginia Code § 61-2-9(a), in
pertinent part, differ from domestic violence, third offense:

       If any person maliciously shoot, stab, cut or wound any person, or by any means
       cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or
       she shall, except where it is otherwise provided, be guilty of a felony and, upon
       conviction, shall be punished by confinement in a state correctional facility not
       less than two nor more than ten years. . . .
       11
        Rule 803(d) of the West Virginia Rules of Evidence directs that statements made for
medical diagnosis or treatment are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness. Rule 803(d) defines such a statement as “[a]
                                                  5
    As noted above, “[t]he action of a trial court in admitting or excluding evidence in the
exercise of its discretion will not be disturbed by the appellate court unless it appears that such
action amounts to an abuse of discretion.” Syl. Pt. 10, State v. Huffman,141 W.Va. 55, 87 S.E.2d
541 (1995). Under the limited circumstances of the case before us, we find that it was not an
abuse of the circuit court’s discretion to deny petitioner’s motion to preclude the State’s medical
witness from testifying that the victim, during the course of her medical treatment, identified
petitioner as her attacker.

    In syllabus point 4 of State v. Helmick, 201 W.Va. 163, 165, 495 S.E.2d 262, 264, (1997), we
held that “[a]n error in admitting hearsay evidence is harmless where the same fact is proved by
an eyewitness or other evidence clearly establishes the defendant’s guilt.” In this case, the victim
identified petitioner at trial as having beaten her on the date in question; therefore, any error that
arose from the circuit court’s allowance of the alleged hearsay testimony of the victim’s doctors
was harmless.

        For the foregoing reasons, we conclude that the circuit court did not err in denying
petitioner’s motion for new trial. Accordingly, we affirm.

                                                                                           Affirmed.

ISSUED: January 9, 2015

CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis




statement that: (1) is made for – and is reasonably pertinent to – medical diagnosis or treatment;
and (2) describes medical history; past or present symptoms or sensations; their inception; or
their general cause.” Revisions to the West Virginia Rules of Evidence, including Rule 803(d),
were effective on September 2, 2014.
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