                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                 FILED
                                                                                 May 17, 2013
Plaintiff Below, Respondent                                                 RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
vs) No. 11-1779 (Roane County 09-F-61)

Charles B.,

Defendant Below, Petitioner



                             MEMORANDUM DECISION
      Petitioner Charles B.,1 by counsel Teresa C. Monk, appeals the Circuit Court of Roane
County’s order denying petitioner’s motion to set aside the verdict and grant a new trial, entered
on May 26, 2011. The State of West Virginia, by counsel C. Casey Forbes, has filed its response.

       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.

         Petitioner was indicted on six counts of sexual assault in the second degree and six
counts of sexual abuse by a parent, guardian or custodian. Petitioner was accused of having oral
sex and sexual intercourse with his then-girlfriend’s daughter, who was between thirteen and
seventeen years of age at the time of the charged occurrences. After a trial, petitioner was
convicted on all charges. Petitioner then moved to set aside the verdict and grant a new trial
based on the introduction of prior bad acts evidence and allegedly inflammatory remarks made in
closing by the prosecutor. This motion was denied after a hearing. Petitioner was sentenced to
ten to twenty-five years of incarceration on each of the six second degree sexual assault counts,
all to run concurrently, and ten to twenty years of incarceration on each of the six counts of
sexual abuse by a custodian, all to run concurrently. The second degree sexual assault sentences
were ordered to run consecutively with the sexual abuse by a custodian sentences, for a total of
twenty to forty-five years of incarceration.

       “When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule
       59 of the West Virginia Rules of Civil Procedure , the trial judge has the authority
       to weigh the evidence and consider the credibility of the witnesses. If the trial
       judge finds the verdict is against the clear weight of the evidence, is based on
       1
          Pursuant to Rule 40(e) of the West Virginia Rules of Appellate Procedure, petitioner’s
last initial will be used in lieu of his last name.
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       false evidence or will result in a miscarriage of justice, the trial judge may set
       aside the verdict, even if supported by substantial evidence, and grant a new trial.
       A trial judge’s decision to award a new trial is not subject to appellate review
       unless the trial judge abuses his or her discretion.” Syllabus point 3, in part, In re
       State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994),
       cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.E.2d 857 (1995).

Syl. Pt. 1, Neely v. Belk Inc., 222 W.Va. 560, 668 S.E.2d 189 (2008).

        On appeal, petitioner first argues that the circuit court erred in allowing the State to
introduce prior bad acts evidence both in Roane and Wirt Counties which were not subject to a
pre-trial Rule 404(b) hearing. The evidence regarded statements by the victim that uncharged
sexual abuse had occurred at other places where she and the victim resided together, including in
Wirt County. The State argues that the circuit court did not err in admitting evidence from the
child victim regarding earlier sexual abuse because the evidence was intrinsic to the charged acts
and therefore does not fall under Rule 404(b).

       The issue of intrinsic evidence was addressed by this Court in State v. Cyrus, 222 W.Va.
214, 664 S.E.2d 99 (2008), wherein the State presented evidence of sexual activity between a
victim and an assailant in one county when the crime was charged in another county. The Cyrus
Court allowed such evidence, explaining that it was intrinsic to the charged crimes and therefore
not subject to a Rule 404(b) analysis. The Cyrus Court found as follows:

       In State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), this Court explained
       that evidence which is “intrinsic” to the indicted charge is not governed by Rule
       404(b). We stated,

          In determining whether the admissibility of evidence of “other bad acts” is
          governed by Rule 404(b), we first must determine if the evidence is
          “intrinsic” or “extrinsic.” See United States v. Williams, 900 F.2d 823, 825
          (5th Cir.1990): “‘Other act’ evidence is ‘intrinsic’ when the evidence of the
          other act and the evidence of the crime charged are ‘inextricably
          intertwined’ or both acts are part of a ‘single criminal episode’ or the other
          acts were ‘necessary preliminaries' to the crime charged.” (Citations
          omitted). If the proffer fits into the “intrinsic” category, evidence of other
          crimes should not be suppressed when those facts come in as res gestae—as
          part and parcel of the proof charged in the indictment. See United States v.
          Masters, 622 F.2d 83, 86 (4th Cir.1980) (stating evidence is admissible
          when it provides the context of the crime, “is necessary to a ‘full
          presentation’ of the case, or is . . . appropriate in order ‘to complete the
          story of the crime on trial by proving its immediate context or the “res
          gestae”’”). (Citations omitted).

       196 W.Va. at 312 n.29, 470 S.E.2d at 631 n.29. This Court further held in LaRock
       that “historical evidence of uncharged prior acts which is inextricably intertwined
       with the charged crime is admissible over a Rule 403 objection,” 196 W.Va. at

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       313, 470 S.E.2d at 632. We explained that, “Rule 403 was not intended to prohibit
       a prosecutor from presenting a full picture of a crime especially where the prior
       acts have relevance independent of simply proving the factors listed in Rule
       404(b).” Id.

       We applied our holdings from LaRock in State v. Slaton, 212 W.Va. 113, 569
       S.E.2d 189 (2002). In that case, the appellant was charged with one count of first
       degree sexual assault; yet, the State presented evidence indicating that the
       appellant had sexually assaulted the victim on more than one occasion. The
       appellant argued that the evidence should have been excluded pursuant to Rule
       404(b). This Court rejected that argument finding that “the multiple incidents of
       sexual assault were ‘inextricably intertwined’” and thus, the evidence was
       admissible as it did not constitute a separate act. 212 W.Va. at 119, 569 S.E.2d at
       195.

       In State ex rel. Wensell v. Trent, 218 W.Va. 529, 625 S.E.2d 291 (2005), the
       appellant sought habeas corpus relief after he was convicted of multiple counts of
       first degree sexual abuse, first degree sexual assault, and sexual abuse by a
       custodian. The appellant asserted that the circuit court should have excluded
       evidence that he punished his victims by spanking them with a paddle board and
       that he had previously assaulted his wife during a domestic dispute. We
       concluded that the evidence was admissible explaining that “[i]t portrayed to the
       jurors the complete story of the inextricably linked events with regard to the
       interaction between the appellant and his stepdaughters and amounted to intrinsic
       evidence.” 218 W.Va. at 536, 625 S.E.2d at 298.

       In this case, the evidence that the appellant sexually assaulted and abused the
       victims in McDowell County was inextricably intertwined with the alleged
       offenses in Mercer County. During the time span of the indictment, the appellant
       and his family, including the victims, moved back and forth between Mercer
       County and McDowell County. The sexual abuse was a continuing act that
       occurred in both counties and was impossible for the victims to segregate. Thus,
       we find no error with the admission of this evidence.

Cyrus, 222 W.Va. at 218-219, 664 S.E.2d at 103-104; see also, State v. Harris, 2013 WL
1500653 (W.Va., April 11, 2012). This Court finds that, pursuant to Cyrus, the evidence herein
was intrinsic to the charges and, therefore, there is no abuse of discretion.

        Petitioner next argues that the circuit court erred in allowing the State to ask the jury to
“put themselves in the victim’s shoes” in closing argument. Specifically, the prosecutor stated:

       I ask you to try to put yourself in [the victim’s] shoes for just a few minutes and
       imagine what it must have been like to sit in an office and tell an adult - - and not
       just an adult, a male police officer - - and go into the graphic detail about how the
       man who was the father figure in her life, the male figure since she was two years
       old, raped her, how he forced her to have sexual intercourse, how he forced her to
       have oral sex.
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Petitioner argues that this was in violation of State v. Clements, 175 W.Va. 463, 334 S.E.2d 600
(1985), which prohibits use of the “golden rule” argument. The State argues first that there was
no objection at trial and that the statement was not plain error because it was not prejudicial, and
because the remark related to the victim’s credibility, not as an emotional connection to her
victimization. The State also argues that no error occurred because the argument was made in
relation to how the victim related to a police officer, as opposed to an attempt to elicit a guilty
verdict.

       This Court has stated that “‘[i]n order to take advantage of remarks made during an
opening statement or closing argument which are considered improper an objection must be
made and counsel must request the court to instruct the jury to disregard them.’ State v. Lewis,
133 W.Va. 584, 57 S.E.2d 513 (1949).” State v. Coulter, 169 W.Va. 526, 530, 288 S.E.2d 819
(1982). Thus, the statement must be examined under plain error, as follows:

       “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.” Syllabus
       Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 9, State v. Thompson, 220 W.Va. 398, 647 S.E.2d 834 (2007). Additionally, this Court
has stated that “[a] judgment of conviction will not be set aside because of improper remarks
made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in
manifest injustice.” State v. Sugg, 193 W.Va. 388, 405, 456 S.E.2d 469, 486 (1995). Finally, this
Court has held:

       Four factors are taken into account in determining whether improper prosecutorial
       comment is so damaging as to require reversal: (1) the degree to which the
       prosecutor’s remarks have a tendency to mislead the jury and to prejudice the
       accused; (2) whether the remarks were isolated or extensive; (3) absent the
       remarks, the strength of competent proof introduced to establish the guilt of the
       accused; and (4) whether the comments were deliberately placed before the jury
       to divert attention to extraneous matters.

Syl. Pt. 6, Sugg, 193 W.Va. 388, 456 S.E.2d 469. Considering these holdings, this Court finds no
error in the circuit court’s denial of the motion to set aside the verdict. The statements by the
prosecutor do not rise to the level of plain error in this case, and this Court agrees with the
State’s argument that the comments were directed toward the credibility of the victim’s
testimony, not the guilt or innocence of petitioner. Moreover, we find no manifest injustice nor
do we find clear prejudice.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.




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ISSUED: May 17, 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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