                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia,                                                             FILED
Plaintiff Below, Respondent
                                                                              November 20, 2015
                                                                               RORY L. PERRY II, CLERK
vs) No. 14-0918 (Cabell County 13-F-5)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Thomas M. White, Jr.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Thomas M. White, by counsel Timothy P. Rosinsky and Kerry A. Nessel,
appeals the Circuit Court of Cabell County’s “Final Amended Order of Commitment” entered
August 14, 2014, that remanded petitioner to the custody of the West Virginia State Penitentiary
following his conviction by a jury of two counts of first degree felony murder. The State of West
Virginia, by counsel Ryan Shreve and Laura Young, filed a response. Petitioner’s assignments of
error herein all relate to the State’s admission of evidence at petitioner’s trial pursuant to Rule
404(b) of the West Virginia Rules of Evidence.

        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 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.

        On November 6, 2012, two armed men entered a known drug house located at 1932
Foster Avenue, Huntington, West Virginia. Soon thereafter, at about 10:30 a.m., Cabell County
911 received a call from a young girl who lived at that address; the girl said she had heard gun
shots fired inside the house. Around the same time, another child who lived nearby saw two
adult, black males leave 1932 Foster Avenue; one was running and the other was limping. Both
men stopped at a red Honda Pilot (the “Honda”) which was parked down the street. The men
argued and then ran off in different directions.

        Law enforcement officers arrived at the scene soon thereafter. In the house, they found
Darrell Fuqua dead from a gunshot to the back of the head and a gunshot to the leg. They also
found Devonte Penn who was seriously injured from a gunshot to the leg. Mr. Penn told the
officers that he was shot by “Rocky, with a mole on his face.” About that same time, petitioner
arrived at Cabell Huntington Hospital seeking treatment for a gunshot wound to his abdomen.
Petitioner claimed he had been wounded in a “drive-by” shooting.



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       Later that morning, officers saw a man near the scene of the crime who matched Mr.
Penn’s description of his assailant. When questioned, the man identified himself as Rocky
Williams. Mr. Williams (“petitioner’s accomplice”) was taken into custody and questioned.

        Also on the morning of the shootings, law enforcement officers searched the Honda.
They found a Ruger pistol under the front seat; the Ruger was later found to contain petitioner’s
latent fingerprint and his blood. The police also learned that the Honda was registered in the
name of petitioner’s girlfriend.

        The police also searched 1932 Foster Avenue that day and found several cell phones;
some were inside the house, some were on the porch of the house, and two more were found in
the mulch next to the porch. One of the cell phones found on the porch was a Virgin Mobile
phone, which was later determined to belong to petitioner’s accomplice. Another one of the cell
phones, a Samsung phone—which was later linked to petitioner—was found in the mulch next to
a set of car keys for the Honda. The police “dumped” the cell phones and found phone calls
between the Virgin Mobile (petitioner’s accomplice’s) phone and the Samsung (petitioner’s)
phone that were made the day before and the day of the crimes at issue in this case. The police
also discovered text messages sent from the Samsung (petitioner’s) phone to another phone prior
to the crimes at issue in this case.

      On November 7, 2012, the day after the shootings, Mr. Penn died as a result of the
gunshot wound to his leg.

        On January 16, 2013, petitioner was indicted on two counts of first degree felony murder
pursuant to West Virginia Code § 61-2-1 for his part in the November 6, 2012, crimes.
Petitioner’s accomplice was also indicted for multiple crimes, including burglary and second
degree murder. Thereafter, but prior to petitioner’s trial in this matter, petitioner’s accomplice
pled guilty to burglary and second degree murder.

        Prior to petitioner’s trial, the State notified the defense of its intent to introduce evidence
pursuant to Rule 404(b) of the West Virginia Rules of Evidence. The first piece of Rule 404(b)
evidence consisted of two “call logs” each of which displayed a chronological list of phone calls
sent from the Virgin Mobile (petitioner’s accomplice’s) cell phone. Included in those calls were
petitioner’s accomplice’s calls to petitioner’s Samsung phone the day before and the day of the
shootings at 1932 Foster Avenue. The second piece of Rule 404(b) evidence was a transcript of
text messages sent from the Samsung phone found at the scene. The texts were sent by a person
known as “T-man” to a person known as “Big Dog” and regarded drug dealing. The first six of
these texts read as follows:

       [1] “Chillin, can you find bars?”

       [2] “They 7.”

       [3] “You was trying to grab a couple ounces.”

       [4] When I come, I’m bring an eye, she wants to see.”

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          [5] “On my way, just make sure that weighs so she don’t trip.”

          [6] “You want a front.”

      The seventh text message also regards drug dealing; however, it is different than the other
messages given that it threatens violence, as follows:

          [7] “Jus know ima kill u bitch, I had it on me u lucky we was in that fuckin
          parking lot but jus know u dead bitch . . . . U a bitch ima kill u ya momma ya
          baby and whoever else with u u pussy ass cracker . . . . Just know yall dead, I
          shoulda shot ya ass in the parkin lot. . . .”1

       At a January 16, 2014, McGinnis2 hearing on the proposed Rule 404(b) evidence, the
State proffered the evidence it would produce at trial to show that petitioner was the “T-man”
who had sent the seven text messages. The State argued that the text messages were admissible
to show petitioner’s intent and/or motive to commit the crime charged. The circuit court deemed
the evidence admissible at trial for the purpose of showing petitioner’s intent and/or motive, as
follows:

          I think that kind of goes to [petitioner’s] business plan . . . of how [petitioner] did
          business as a drug dealer, which seems to very neatly fit into [the State’s] theory
          that [petitioner and petitioner’s accomplice] went [to 1932 Foster Avenue] to
          further their business and get more drugs with a possible use of violence.

Petitioner timely lodged his objection to this ruling.

        At petitioner’s trial, the State called petitioner’s accomplice to establish his and
petitioner’s motive for their crimes. Petitioner’s accomplice testified that he and petitioner had
gone to 1932 Foster Avenue to steal drugs. Petitioner’s accomplice further testified that he shot
Mr. Fuqua in the back of the head and in the leg. The State also introduced evidence showing
that the Samsung phone belonged to petitioner. The State then introduced the text messages
through its witness, Lt. Charles Kingery of the Huntington Police Department. However, Lt.
Kingery did not read any of the text messages to the jury or discuss the contents of the text
messages in any fashion. Petitioner timely continued his objection to the admission of the text
messages. Following the admission of the text messages, the circuit court did not give a limiting
instruction regarding the Rule 404(b) evidence, nor did petitioner’s counsel move the court for
such an instruction.

       The State’s next witness, Cpl. Paul Hunter of the Huntington Police Department, testified
regarding the first six text messages for the purpose of defining certain terms contained within
          1
              This last text is actually a consecutive group of texts strung together in a conversational
format.
          2
              State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).



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those texts, such as “bars,” “an eye,” and “a front.”3 Cpl. Hunter explained that these and other
terms in the texts were commonly used by individuals buying or selling illegal drugs. Cpl.
Hunter did not read or reference the seventh text message regarding the drug deal gone wrong.
At no time during Cpl. Hunter’s testimony did petitioner’s counsel move the circuit court for a
limiting instruction in regard to the text messages.

       Petitioner did not testify.

        During the instruction phase of petitioner’s trial, the circuit court gave a limiting
instruction regarding the Rule 404(b) evidence entered at trial. Thereafter, during its
deliberations, the jury sought clarification regarding which phone related to the call logs, and
which related to the text messages. The circuit court answered the first part of the question by
stating that the “call logs” showed calls made from the “Virgin Mobile telephone.” As for the
text messages, the circuit court merely said that the exhibit showed “text conversations,” i.e., the
court did not connect the text messages to a phone. The jury foreperson responded, “So it’s all
the same phone?” The court replied, “Well, the [call logs] are . . . [I] can’t really tell you more.”
Soon thereafter, the jury convicted petitioner of two counts of first degree felony murder.

       In a “Final Amended Order of Commitment,” the circuit court sentenced petitioner to two
consecutive life sentences, with the possibility of parole. Petitioner now appeals his convictions.

       On appeal, petitioner first argues that the circuit court erred in admitting the text
messages4 at his trial because they did not tend to prove motive, intent, preparation, plan,
knowledge, identity or absence of mistake or accident to commit a crime. The Court reviews this
and petitioner’s other assignments of error under the following standard:

       The standard of review for a trial court’s admission of evidence pursuant to Rule
       404(b) involves a three-step analysis. First, we review for clear error the trial
       court’s factual determination that there is sufficient evidence to show the other
       acts occurred. Second, we review de novo whether the trial court correctly found
       the evidence was admissible for a legitimate purpose. Third, we review for an
       abuse of discretion the trial court’s conclusion that the “other acts” evidence is
       more probative than prejudicial under Rule 403.

State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996) (internal citations
omitted).

       3
         Cpl. Hunter testified that the term “bars” is another name for Xanax; (2) that the term
“an eye” likely meant the actual purchaser of the drugs; and (3) that the term “front” meant a
“loan” or delayed payment for the drugs.
       4
          In his brief to this Court, petitioner complains about the admission of the “Rule 404(b)
evidence” at trial. As noted above, that evidence included both the text messages from the
Samsung phone and the call logs from the Virgin Mobile phone. However, given that petitioner
did not object to the admission of the call logs at trial, we presume that petitioner refers only to
the text messages when he refers to the “Rule 404(b) evidence.”
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        The circuit court did not clearly err when it determined that the State presented sufficient
factual support at the McGinnis hearing for it to conclude, by a preponderance of the evidence,
that petitioner was the “T-man” who sent the text messages to “Big Dog.” That factual support
included the following: (1) the text messages were sent from a Samsung cell phone found just
outside the crime scene; (2) the information “dumped” from other phones found at the scene
revealed that “T-man” sent the text messages from the Samsung phone; (3) the Samsung phone
was found next to a set of keys belonging to the Honda which petitioner was seen driving early
on the day of the shootings and was seen standing beside immediately following the shootings;
and (4) the State proffered that three witnesses would testify at trial that petitioner was, in fact,
“T-man.” Those witnesses included petitioner’s accomplice who testified at trial that he had seen
petitioner in possession of the Samsung cell phone.

       The circuit court also did not abuse its discretion in finding that the text messages were
admissible for the purpose of proving petitioner’s intent and/or motive for his crimes. Rule
404(b) provides as follows:

       (1) Prohibited uses. – Evidence 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.

       (2) Permitted uses; notice in a criminal case. – This evidence may be admissible
       for another purpose, such as proving motive, opportunity, intent, preparation, plan,
       knowledge, identity, absence of mistake, or lack of accident. Any party seeking
       the admission of evidence pursuant to this subsection must:

               (A) provide reasonable notice of the general nature and the specific and
               precise purpose for which the evidence is being offered by the party at
               trial; and

               (B) do so before trial – or during trial if the court, for good cause, excuses
               lack of pretrial notice.

(Emphasis added.) Here, petitioner’s “intent” and/or “motive” was relevant given that the State
was required to prove petitioner’s “intent” and/or “motive” to commit robbery in order to gain a
conviction against petitioner for first degree felony murder. Further, as the circuit court found,
petitioner’s text messages were related to his drug dealing “business” and tended to show an
overall criminal intent to enhance his illegal “business” by robbing a known drug house.
Consequently, given that the evidence was not admitted for a prohibited purpose, we find no
error.

       Petitioner’s second assignment of error is that the circuit court failed to properly
determine whether the text message evidence was more probative than prejudicial pursuant to
Rule 403 of the Rules of Evidence. Petitioner claims that the circuit court’s analysis in this
regard was insufficient given that the court said only that, “[the evidence] is prejudicial, but all
evidence is prejudicial. Is it so much prejudicial? I don’t think so.” Rule 403 provides that “[t]he
court may exclude relevant evidence if its probative value is substantially outweighed by a

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danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

        We find that the circuit court did not abuse its discretion in determining that the text
messages were more probative than prejudicial. Specifically, the circuit court found that the text
messages were probative because they showed that petitioner had a “business” and that petitioner
was not adverse to dealing drugs and committing violence. As for petitioner’s complaint that the
circuit court’s ruling regarding Rule 403 was insufficiently brief, our careful review of the record
on appeal reveals that the circuit court balanced the evidence throughout petitioner’s and the
State’s arguments at the McGinnis hearing. Such a balancing test is not invalid merely because it
was interwoven with the circuit court’s Rule 404(b) analysis. Accordingly, we cannot say that
the circuit court erred in finding that the evidence was more probative than prejudicial or that the
court’s comments regarding its Rule 403 decision were insufficiently brief.

         Petitioner next argues that the circuit court’s inclusion of the text message evidence was
error given that the jury specifically asked the circuit court about the “call logs” and text message
exhibits during its deliberations and then returned a “guilty” verdict soon thereafter. In essence,
petitioner claims that the timing of the jury’s question regarding the Rule 404(b) evidence shows
that the admission of the text messages was error. We first note that the circuit court’s answer to
the jury’s question—that the “call logs” regarded the “Virgin Mobile” phone, and “[I] can’t
really tell you more”—provided no additional information or comment about the text messages.
Nor does petitioner explain how these abbreviated answers might have impacted the jury in some
improper manner. Consequently, this assignment of error is wholly speculative. That said, even
if the circuit court had erred in admitting the Rule 404(b) evidence, the error was harmless given
that the State provided the jury with ample and overwhelming evidence of petitioner’s guilt
above and beyond the call logs and text messages. In this regard, we have said,

               Where improper evidence of a nonconstitutional nature is introduced by
       the State in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State’s case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial
       minds of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining
       evidence is found to be insufficient, the error is not harmless; (3) if the remaining
       evidence is sufficient to support the conviction, an analysis must then be made to
       determine whether the error had any prejudicial effect on the jury.

Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979); accord State v. Day, 225 W.Va.
794, 803, 696 S.E.2d 310, 319 (2010). At trial, petitioner’s accomplice testified that he and
petitioner went to 1932 Foster Avenue to commit a robbery. The evidence also included
numerous other witness accounts, as well as significant forensic evidence, that explained
petitioner and his accomplice’s plan to rob 1932 Foster Avenue. That evidence (1) placed
petitioner at the scene of the crime with his accomplice, (2) showed that the Ruger found in the
Honda contained petitioner’s fingerprint and blood, (3) showed that the Ruger fired the fatal shot
into one of the victims, and (4) showed how petitioner fled the scene with his accomplice. Thus,
given that this evidence was sufficient to convince the jury of petitioner’s guilt beyond a



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reasonable doubt without the admission of the contested text messages, any error resulting from
the admission of the text messages at trial was harmless.

        Petitioner’s fourth and final assignment of error is that the circuit court erred in failing to
give the jury a limiting instruction after the admission of the Rule 404(b) evidence at trial. This
Court has required that “‘[a] limiting instruction . . . be given at the time [the Rule 404(b)]
evidence is offered, and we recommend that it be repeated in the trial court’s general charge to
the jury at the conclusion of the evidence.’ Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455
S.E.2d 516 (1994).” State v. Ricketts, 219 W.Va. 97, 98, 632 S.E.2d 37, 38 (2006). Here, the
circuit court did err in failing to give the jury a limiting instruction at the time the Rule 404(b)
evidence was admitted into evidence. However, we find that this failure was harmless error for
the following reasons: First, when the evidence was admitted during the testimony of Lt.
Kingery, he did not read any of the text messages to the jury or discuss their contents in any
fashion. Second, following the admission of the text messages, petitioner’s counsel did not move
the circuit court for a limiting instruction. Third, when Cpl. Hunter testified regarding the first
six text messages, petitioner’s counsel again failed to move the court for a limiting instruction.
Fourth, during the instruction phase of petitioner’s trial, the circuit court gave the required Rule
404(b) limiting instruction. Fifth, petitioner does not assert that the jury received a written copy
of the text messages prior to its deliberations. Sixth, the jury heard overwhelming evidence of
petitioner’s guilt. Accordingly, in this case and on these particular facts, we find that the circuit
court’s failure to give a limiting instruction at the time the text messages were admitted into
evidence at trial was harmless error.

       Accordingly, for the foregoing reasons, we affirm petitioner’s convictions and the August
14, 2014, order that remanded petitioner to the custody of the West Virginia State Penitentiary.

                                                                                            Affirmed.

ISSUED: November 20, 2015

CONCURRED IN BY:

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




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