                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                              November 17, 2017
vs) No. 16-0754 (Preston County 15-F-56)                                        EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Michael Lee Taylor,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Michael Lee Taylor, by counsel Sally C. Collins, appeals the Circuit Court of
Preston County’s June 14, 2016, order denying his motion for judgment of acquittal or a new
trial and a request for a dismissal following a jury trial and his convictions on four counts of third
degree sexual assault. Respondent the State of West Virginia, by counsel Shannon Frederick
Kiser, filed a response in support of the circuit court’s order. Petitioner also submitted a reply.

        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.

        The charges against petitioner arise from alleged sexual contact with D.W., petitioner’s
girlfriend’s thirteen-year-old sister, in both Preston and Monongalia counties between August of
2012 and May of 2014. Petitioner first exposed himself to D.W. when she exited the bathroom in
her family’s home in Monongalia County, and then he engaged in sexual intercourse with her.
D.W. also temporarily resided with her sister and petitioner in Preston County to help care for
her sister and petitioner’s young child. During that time, the sexual abuse became more frequent,
including petitioner making D.W. perform oral sex. D.W. later described the sexual interactions
with petitioner as a “regular activity” that occurred “[m]ore than a hundred times.” Petitioner had
explicit telephone conversations with D.W., drove her down remote back roads to engage in
sexual intercourse, and had sex with her in his home. He also had sex with her in a building in
Monongalia County, where he worked as a night-time janitor. D.W. eventually told her mother
about the sexual relationship with petitioner. After law enforcement was contacted, D.W. gave
them two pair of her underwear, one of which contained DNA consistent with petitioner’s
profile. Petitioner was arrested and charged with sexual assault.

       A Preston County grand jury indicted petitioner on seven felony counts: one count of
second degree sexual assault and six counts of third-degree sexual assault. However, the second
degree sexual assault charge was dismissed on the State’s motion prior to trial based on the

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assertion that the events in that count did not occur in Preston County. The State submitted a
Notice of res gestae evidence to which petitioner objected. The circuit court held that the
prosecutor may present res gestae evidence of alleged sexual acts or acts preliminary thereto
allegedly occurring in Monongalia County or that the victim may testify to more than the six
events alleged in the remaining counts of the indictment. Petitioner submitted a motion in limine
to exclude DNA evidence on a challenge of relevancy under West Virginia Rule of Evidence 702
and Craddock v. Watson, 197 W. Va. 62, 475 S.E.2d 62 (1996). The circuit court denied that
motion. During the trial, petitioner’s counsel moved to dismiss one count of third degree sexual
assault based on the fact that the evidence showed the act occurred in Monongalia County, rather
than Preston County. The State agreed, and the circuit court dismissed count two of the
indictment.

        Following a jury trial on April 5 and 6, 2016, petitioner was found guilty of four counts
of third degree sexual assault and not guilty of one count of third degree sexual assault.
Petitioner filed a motion for a judgment of acquittal or a new trial and a request for dismissal,
which were denied in the June 14, 2016, sentencing order. After reviewing the presentence
investigation report, petitioner was also sentenced to a term of incarceration of one to five years
for each of the four counts, said sentences to run consecutively for an effective sentence of four
to twenty years. He was given credit for time served in the regional jail. The circuit court also
sentenced petitioner to a period of supervised release for thirty years. The circuit court further
ordered that petitioner receive any cognitive-based sex offender treatment and substance abuse
treatment available during his imprisonment. In addition, petitioner was required to register as a
sex offender within three days of his release from imprisonment. Petitioner appeals from that
sentencing order.

       The issues presented in this case relate to the circuit court’s admission of certain
evidence. With regard to such admission, we have held as follows:

               “The West Virginia Rules of Evidence . . . allocate significant discretion
       to the trial court in making evidentiary . . . rulings. Thus, rulings on the
       admissibility of evidence . . . are committed to the discretion of the trial court.
       Absent a few exceptions, this Court will review evidentiary . . . rulings of the
       circuit court under an abuse of discretion standard.” Syllabus Point 1, in part,
       McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

Syl. Pt. 9, Smith v. First Community Bancshares, Inc., 212 W. Va. 809, 575 S.E.2d 419 (2002).
Specifically, he contends that the circuit court erred by employing the wrong standard to
determine the relevance of DNA testing results and expert testimony offered by the State
regarding that evidence. As a result, he asserts that the circuit court erred in admitting DNA
testing results and expert testimony offered by the State.

        Petitioner states that when Corporal Susan Mitter of the Preston County Sheriff’s
Department collected underwear from D.W. in May of 2014 that D.W. told her that she had been
wearing the underwear after she had sex with petitioner. Further, he admits that one pair of those
underwear yielded a partial Y-STR profile that rendered comparison results to petitioner’s
profile. He filed a motion to exclude those results below, arguing that there was no direct

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connection between the underwear and D.W. having sex with petitioner in Preston County.
Instead, he argues that D.W. identified those underwear as the ones she wore when she last had
sex with petitioner, and that sex occurred in Monongalia County, rather than Preston County. He
also asserts that the introduction of such evidence would be highly prejudicial to petitioner and
inadmissible under Rules 402 and 404(b) of the West Virginia Rules of Evidence. Petitioner
contends that the circuit court improperly allowed the State to present not only the written report
of the lab that tested the underwear but also the testimony of the laboratory analyst, A.K. Gill. As
part of that argument, he asserts that West Virginia precedent and Rule 702 of the West Virginia
Rules of Evidence required the circuit court to act as a gatekeeper and required that the court
prohibit Gill from testifying about the underwear.

       Rule 702 of the West Virginia Rules of Evidence provides as follows:

       (a) If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness qualified
       as an expert by knowledge, skill, experience, training, or education may testify
       thereto in the form of an opinion or otherwise.
       (b) In addition to the requirements in subsection (a), expert testimony based on a
       novel scientific theory, principle, methodology, or procedure is admissible only if:
       (1) the testimony is based on sufficient facts or data;
       (2) the testimony is the product of reliable principles and methods; and
       (3) the expert has reliably applied the principles and methods to the facts of the
       case.

Petitioner does not appear to dispute that Gill had specialized knowledge regarding the
laboratory testing process or the content of DNA report at issue. Further, he does not address the
majority of the criteria set forth in Rule 702, instead focusing on the information from D.W. that
suggests that the tested underwear related to crimes that occurred in Monongalia County.

        At trial, D.W. testified that she had over 200 sexual encounters with petitioner, six of
which occurred in Monongalia County. She further testified that over 100 acts of oral sex and
over 100 acts of sexual intercourse occurred in petitioner’s home in Preston County. Similar to
the facts in State v. Cyrus, 222 W. Va. 214, 664 S.E.2d 99 (2008), the State maintains that the
evidence of sexual abuse in Monongalia and Preston Counties was inextricably intertwined with
the crimes for which petitioner was charged in Preston County, so evidence of those crimes was
admissible.

              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

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               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 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.

Cyrus at 218, 664 S.E.2d at 103.

        Based upon our review of the record, we find that the evidence that petitioner sexually
assaulted D.W. in Monongalia County was inextricably intertwined with the offenses in Preston
County. During the relevant time period, petitioner transported D.W. from his residence in
Preston County to his place of work in Monongalia County where they engaged in sexual acts, in
addition to engaging in sexual acts with D.W. at his Preston County residence. As in Cyrus,
“[t]he sexual abuse was a continuing act that occurred in both counties and was impossible for
the victim[] to segregate. Thus, we find no error with the admission of this evidence.” Id. at 219,
664 S.E.2d at 104. For these reasons, we affirm the circuit court’s denial of petitioner’s post-trial
motions.

                                                                                          Affirmed.

ISSUED: November 17, 2017

CONCURRED IN BY:

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




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