          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2016 Term
                                                                          FILED
                                                                       June 3, 2016
                                                                         released at 3:00 p.m.
                                      No. 15-1198                      RORY L. PERRY, II CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA




       STATE OF WEST VIRGINIA ex rel. PAMELA JEAN GAMES-NEELY,

                          Prosecuting Attorney,

                               Petitioner


                                           v.

                   THE HONORABLE JOHN C. YODER, Judge of

           the Circuit Court of Berkeley County; and DENNIS E. STREETS,

                                      Respondent




                           Petition for Writ of Prohibition


                                    WRIT GRANTED



                             Submitted: April 13, 2016
                                Filed: June 3, 2016

Christopher Quasebarth, Esq.                            B. Craig Manford, Esq.
Chief Deputy Prosecuting Attorney                       Martinsburg, West Virginia
Timothy D. Helman, Esq.                                 Counsel for the Respondent
Assistant Prosecuting Attorney                           Dennis E. Streets
Martinsburg, West Virginia
Counsel for the Petitioner



JUSTICE WORKMAN delivered the Opinion of the Court.
                               SYLLABUS BY THE COURT




               1.     “The State may seek a writ of prohibition in this Court in a criminal case

where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims

that the trial court abused its legitimate powers, the State must demonstrate that the court’s

action was so flagrant that it was deprived of its right to prosecute the case or deprived of a

valid conviction. In any event, the prohibition proceeding must offend neither the Double

Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the application for

a writ of prohibition must be promptly presented.” Syl. Pt. 5, State v. Lewis, 188 W. Va. 85,

422 S.E.2d 807 (1992).



               2.     “Failure to make timely and proper objection to remarks of counsel

made in the presence of the jury, during the trial of a case, constitutes a waiver of the right

to raise the question thereafter either in the trial court or in the appellate court.” Syl. Pt. 6,

Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945).



               3.     “‘The plain error doctrine of W. Va. R. Crim. P. 52(b), whereby the

court may take notice of plain errors or defects affecting substantial rights although they were

not brought to the attention of the court, is to be used sparingly and only in those

circumstances in which a miscarriage of justice would otherwise result.’ Syllabus Point 2,


                                                i
State v. Hatala, 176 W. Va. 435, 345 S.E.2d 310 (1986).” Syl. Pt. 4, State v. Grubbs, 178

W. Va. 811, 364 S.E.2d 824 (1987).



              4.      “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).



              5.      “An appellant or plaintiff in error will not be permitted to complain of

error in the admission of evidence which he offered or elicited[.]” Syl. Pt. 2, in part, State v.

Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971).



              6.      “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, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).




                                               ii
Workman, Justice:



               The petitioner Pamela Jean Games-Neely, Prosecuting Attorney for Berkeley

County (also referred to as “the State”), seeks a writ of prohibition to prevent the circuit court

from enforcing its November 24, 2015, order granting a new trial to the respondent, Dennis

E. Streets. The State argues that the circuit court erred: 1) by granting a new trial when Mr.

Streets failed to object to the alleged error during trial; 2) in determining that the State

improperly attacked Mr. Streets’ character, when he first placed his character in issue and

invited error; and 3) by granting Mr. Streets a new trial when the alleged error was harmless.

Upon consideration of the parties’ briefs and arguments, the appendix record and all other

matters submitted before the Court, we find sufficient grounds to grant the requested writ.



                          I. Factual and Procedural Background

               Mr. Streets was a thirty-two-year veteran of the Berkeley County Sheriff’s

Department (“sheriff’s department”). He was indicted on one felony count of embezzlement

and one felony count of fraudulent schemes. Mr. Streets was alleged to have embezzled

thirteen guns from the sheriff’s department and fraudulently sold the guns to a gun dealer

called Glockcop LLC. Mr. Streets was tried in April of 2015 and a jury found him not guilty

of fraudulent schemes, but was hung on the embezzlement count and a mistrial was declared.

The State decided to retry Mr. Streets on the embezzlement count.


                                                1

              Prior to the retrial, on August 4, 2015, the State filed a notice of intent to use

Rule 404(b) evidence. See W. Va. R. Evid. 404(b)(2).1 The evidence at issue consisted of

certified public records of six judgments against Mr. Streets, with supporting documents,

from various lawsuits involving wrongful occupation and defaults on residential rental

agreements, a default on a furniture installment agreement, nonpayment of medical bills,

wage garnishment and home foreclosure (hereinafter referred to collectively as “the Rule

404(b) evidence”). These documents established debt owed by Mr. Streets in excess of

$38,000.2 The State indicated in its notice that the evidence was offered to show motive.

“More specifically, these records demonstrate that the Defendant was in deep financial

trouble on or about the time of the alleged thefts, and that this financial trouble was his

motive to steal guns from the Sherriff’s [sic] department and sell them for personal gain.”

On August 14, 2015, Mr. Streets responded to the State’s notice by filing a motion to restrict

the use of Rule 404(b) evidence. The circuit court held a McGinnis3 hearing on August 20,

       1
        West Virginia Rule of Evidence 404(b)(2) provides, in part: “(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.”
       2
       The State also sought to introduce multiple documents regarding the foreclosure of
Mr. Streets’ home including the Trustee’s Report of Sale, Publication of Sale, Notice of
Trustee’s Sale to Mr. Streets and creditors holding liens on the subject property.
       3
         See Syl Pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994) (“Where
an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the
trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine
its admissibility. Before admitting the evidence, the trial court should conduct an in camera
                                                                                (continued...)

                                              2

2015, and determined that the evidence of the various judgments against Mr. Streets was

admissible to show motive pursuant to Rule 404(b). Mr. Streets objected to the ruling.



              Mr. Streets’ retrial on the embezzlement count occurred on August 25, 26 and

27, 2015.4 The State presented evidence from multiple witnesses, as well as Glockcop LLC’s

business records, including pages from its Federal Bureau of Alcohol, Tobacco, Firearms,

and Explosives firearm acquisitions logs, and business records from the sheriff’s department

showing that guns from the evidence room and from the special response team had been sold

for cash at the Glockcop LLC by Mr. Streets. Further, Sheriff Lemaster testified that Mr.


       3
         (...continued)
hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing
the evidence and arguments of counsel, the trial court must be satisfied by a preponderance
of the evidence that the acts or conduct occurred and that the defendant committed the acts.
If the trial court does not find by a preponderance of the evidence that the acts or conduct
was committed or that the defendant was the actor, the evidence should be excluded under
Rule 404(b). If a sufficient showing has been made, the trial court must then determine the
relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence
and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence.
If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should
instruct the jury on the limited purpose for which such evidence has been admitted. A
limiting instruction should be given at the time the 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.”).
       4
         The evidence from the trial, which is summarized for purposes of providing a
backdrop for the issue now before the Court, is largely taken from the State’s brief. The
entire trial transcript was not provided in the appendix record as, according to the State in its
brief, some of the trial testimony was not available at the time the petition was filed. Mr.
Streets does not dispute the trial testimony or the exhibits referenced in the State’s brief, in
any way, in his response to the petition.

                                               3

Streets was the sole officer in charge of the evidence room of the sheriff’s department at the

time of the embezzlement charge. Sheriff Lemaster testified that Mr. Streets was also the

only person in charge of the program of trading guns for store credit at local gun shops.

Sheriff Lemaster stated that excess firearms from the evidence room could be destroyed or

there was a procedure by which those firearms could be converted to credit so that service

weapons or ammunition could be obtained. The sheriff testified that only store credit could

be obtained for the weapons traded under this program, not cash. Despite the store credit

only policy, Cliff Vinson, the owner of Glockcop LLC, testified to various cash transactions

between his store and Mr. Streets involving the firearms at issue, which came from the

evidence room of the sheriff’s department and the special response team. Finally, the State

introduced the Rule 404(b) evidence described above in the case. This evidence came in

during Sgt. Brendan Hall’s testimony.5



                 Mr. Streets, in his defense, called four witnesses. Mr. Streets also testified.

He admitted selling some of the guns that had come from the sheriff’s department. Mr.

Streets claimed that he had sold the guns by mistake. As he explained, his father had been

a gun collector and had recently passed away, leaving him numerous firearms. Mr. Streets

said that he decided to sell these firearms because he was having financial difficulties. Mr.

Streets testified that he had taken some of the guns from his father’s collection to the


       5
           Sgt. Hall was also with the sheriff’s department.

                                                4

sheriff’s department to run background checks on the serial numbers in order to make sure

that none of the weapons had been stolen. Mr. Streets stated that he accidently commingled

his firearms with those from the sheriff’s department and took them to Glockcop LLC for

sale.



              Significant to the issue now before this Court, Mr. Streets was questioned

during both direct and cross-examination about the Rule 404(b) evidence. During Mr.

Streets’ direct examination, he chose to offer explanations for several of the judgments and

the foreclosure on a house he owned. When questioned about the house that they (referring

to Mr. Streets and his wife) had lost to foreclosure, Mr. Streets’ counsel asked him what had

happened. Mr. Streets testified: “We didn’t really lose – well we gave up the house.” Mr.

Streets further explained that “I had a lot of trouble in the neighborhood. There was a house

directly across the street from us that was a drug house and had been raided actually twice

by the task force. . . . [T]here was [sic] a lot of problems going on in my neighborhood. I

couldn’t take it any more.” Mr. Streets proceeded to testify that they had made arrangements

through a realtor to build a house, but then his wife had to leave work and “[d]ue to the

problems in the neighborhood we wanted out of there. There was no other way of doing it.

Just could not take living there any longer.” He said that then the housing market crashed

and that they were unable to sell their house. So, according to Mr. Streets, “[w]e moved and

just let the bank have the house back because of the stress of living there just wasn’t worth


                                             5

staying there.” As to one of the default judgments against him, Mr. Streets testified that he

did not answer because he knew that he owed the money and he did not have the money to

pay it. As to another of the judgments that was in favor of David Pittsnogle, Mr. Streets

testified, “[t]hat money is owed. For lack of a better term I considered that to be a slumlord.

There was [sic] a lot of problems with the house.” Mr. Streets stated that the home “wasn’t

habitable” so they moved out, but they were behind in rent for four or five months when they

moved. Regarding a $26,000 judgment against him, Mr. Streets stated that they signed a

two-year lease for $1400 a month on a home because it was the only place that would allow

them to have pets. He stated that they tried to negotiate a lesser amount, but “[t]hey would

not budge on the two-year lease so we signed it anyway hoping that finances would change

and [we would] find some way of getting more money and be able to pay it.”



              During cross-examination,6 Mr. Streets confirmed that he just gave up the

house that was subject to foreclosure because “[t]here was a drug house directly across the

street from where I lived.” When asked if he was having trouble making the house payments,

Mr. Streets responded: “No, I don’t believe I was having trouble making house payments.

I was approved for a loan for a new house while we were still living there.” According to

Mr. Streets, he just “decided to walk away from it[,]” and “just quit making payments on it.”



       6
       The defense did not object to any of the State’s questions regarding the Rule 404(b)
evidence during cross-examination.

                                              6

Mr. Streets explained that they had placed the house on the market, when the market crashed.

When asked why they moved to another house, rather than staying in the house, Mr. Streets

stated that “[t]o do it the right way, . . . we should have.” Instead, Mr. Streets and his wife

rented another home, but then walked away from that home, because they could “[b]arely”

make the monthly rental payments. As for the next home, Mr. Streets decided to walk away

from that obligation too as he claimed the owner was a slumlord.



              As part of the closing argument before the jury, the State, based upon Mr.

Street’s testimony during trial, made the following comments, which were not objected to

by the defense:

                      The motive. You know, we talked about his motive that
              he was in debt. Not just in debt. He was in debt up to his neck
              with $38, 000, six different judgments. He’d been foreclosed
              on, evicted I believe three times we have records of three
              different evictions and his wages were being garnished. You
              know, everybody has financial problems at one point and I
              wouldn’t hold that against him but it is a motive and could cause
              somebody under extreme financial pressure to do something you
              wouldn’t normally expect of them. Ladies and gentlemen, I
              would argue that when he got up there and started explaining
              some of these records if he was asked about his home
              foreclosure and he just said, you know, I’m sorry it’s tough
              financial times I couldn’t afford the payments it went into
              foreclosure you know what I can’t fault the guy for that. That
              happens to good people and I’d have probably just left it at that.
              But do you recall his explanation of the home foreclosure? That
              didn’t sound right to me. He said he just walked away from it.
              He said he walked away from it because of the neighbors across
              the street. It was a drug house across the street and he felt
              justified walking away, and further he said that he had been

                                              7

             approved for another home. I can’t recall if it was building or
             purchasing some other home in Back Creek. He had gotten loan
             approval for it to go there. So his testimony was he walked
             away from his house because he didn’t like what was going on
             across the street and he had a better situation somewhere else.
             Is that really believable? And then the other situation didn’t
             workout so he has to rent instead. He doesn’t just go back to the
             house he’s at. Well. I think ladies and gentlemen, he wasn’t
             being completely honest about that. But let’s assume that he
             was being honest about that don’t you think that gives a little
             bit of insight about his character? If the story is as he
             described that he just walked away from it because he didn’t
             like the situation he felt justified in doing that what else might
             he feel justified in doing?

                    ....

             And again I don’t hold that against him it happens to a lot of
             honest people but he was dishonest about this when he testified
             But consider this – all right, let’s give him the benefit of the
             doubt that when he says he walked away from all three of those
             situations and he says he just walked away and you want to
             believe well that means that you’re then going to trust the
             testimony of somebody who entered into a contract and decided
             he was justified in walking away from it and defaulting on his
             obligations just because he felt justified not because of his
             financial troubles. He said it was because he didn’t like the
             neighbors across the street. It was because Pittsnogle was a
             slumlord. And remember his testimony of Monique Milas he
             said oh we could afford the payment it just kind of made things
             tough so we left. All right. He feels justified in that. What else
             might he feel justified in doing?

(Emphasis added).



             Subsequently, the jury found Mr. Streets guilty of embezzlement of $1,000 or

more. Mr. Streets filed a Motion for a New Trial and a Motion for Judgment of Acquittal

                                             8

Notwithstanding the Verdict in which he argued that the State had made “several comments

regarding how . . . [Mr. Streets] just walked away from his mortgage and other words to that

effect, clearly implying that . . . [Mr. Streets] was a bad person who simply cheated people

by not paying his bills.” Thus, Mr. Streets contended that the State had used the Rule 404(b)

evidence outside the scope of its intended purpose.        Thereafter, counsel for Mr. Streets

obtained the transcript of the State’s closing argument and filed a Supplemental Motion for

New Trial citing specific examples, which are those emphasized above, as further support

for the argument that the State made reference to Mr. Streets’ bad character.7



               The State responded to Mr. Streets’ motion, arguing that the comments made

during closing argument were proper as Mr. Streets opened the door during his testimony and

the comments went toward Mr. Streets’ credibility. Further, the State argued that counsel for

Mr. Streets failed to object to the State’s cross-examination and closing argument and,

therefore, waived any argument. Finally, the State maintained that if there was an error

during closing argument, it was harmless given the overwhelming evidence introduced

against Mr. Streets.




       7
        Mr. Streets also argued that the circuit court erred in failing to direct a verdict in his
favor at the close of the evidence and, alternatively, that the jury’s verdict was contrary to the
evidence. This alleged basis for the motion was not addressed due to the court’s granting a
new trial based upon the State’s comments made during the closing argument.

                                                9

               The circuit court held a hearing on the post-trial motions on October 29, 2015.8

By order entered November 24, 2015, the circuit court granted Mr. Streets’ motion for a new

trial and “overturned and set aside” his felony conviction for embezzlement. In so doing, the

circuit court questioned whether it “may have committed error by even allowing the evidence

[referring to the Rule 404(b) evidence] in as direct evidence, because the case turned into a

sideshow on . . . [Mr. Streets’] debts and the reasons for the debts.” Nonetheless, the circuit

court found that “[t]o the extent that the State’s closing argument went to point out . . . [Mr.

Streets’] financial condition which provided a possible motive to commit the thefts in

question and to impeach or rebut the credibility of this testimony, no improper comments

were made.” The circuit court, however, further determined that when the State “insinuated

that . . . [Mr. Streets] was not a good person because of his explanation of why his house was

foreclosed upon was not simply because he was going through tough financial times[]” and

“went on to comment that . . . [Mr. Streets’] reasons for walking away from his mortgage

weren’t ‘right[,]’ . . . [t]hese comments clearly go past the scope of the State’s intended

purpose for admission of this evidence . . . and are improper.” The circuit court further

found fault with the State’s use of the word “character” in its closing argument, finding that

“[t]his comment strikes at the heart of the prohibition against proving guilt by use of the prior

character, bad acts or misconduct” of Mr. Streets. The circuit court found that “the improper

       8
        Like portions of the trial transcript, there is no transcript of this hearing in the record.
Mr. Streets indicated in his brief that the presiding court reporter “recently had foot surgery”
and was “currently unavailable to transcribe same.”


                                                10

comments made by the State were clearly prejudicial to . . . [Mr. Streets].”9



              After reaching this determination, the circuit court next addressed the State’s

argument that the issue of any improper comments made during closing had been waived by

counsel for Mr. Streets’ failure to object. Conversely, Mr. Streets argued that he objected

to “the allowance of Rule 404(b) evidence or evidence of collections against the Defendant

at pretrial which objection was renewed at trial. How more can the Defendant object?” Mr.

Streets further argued that the taint was “so great and at such an opportune time for the State”

that “any objection then made and being sustained by the Court, even with an additional

cautionary instruction, would have been too little too late!” The circuit court implicitly

agreed with the State’s contention that the defense had failed to properly preserve the error

during trial, because the circuit court proceeded to analyze the issue under the plain error

doctrine.10 The circuit court ultimately found “the State’s comments in closing argument


       9
        The circuit court relied upon State v. Rollins, 233 W. Va. 715, 760 S.E.2d 529 (2014),
wherein we held in syllabus point one 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.’ Syl. pt. 5, State v. Sugg, 193 W. Va.
388, 456 S.E.2d 469 (1995).”
       10
         From a review of the motion and supplemental motion filed by counsel for Mr.
Streets, no plain error argument was ever made by Mr. Streets. We do note that there is no
transcript of the hearing that occurred on the post-trial motions and perhaps an oral argument
was made on this issue by counsel; however, Mr. Streets never indicates that this occurred.
In his response brief before the Court, counsel for Mr. Streets argues that “the Court agreed
with the Respondent’s argument that the State’s improper comments were so egregious that
even if an objection had been timely made, the damage or ‘taint’ to the Respondent had
                                                                                 (continued...)

                                              11

were improper, constituted plain error, and denied the Defendant a fair trial.” According to

the circuit court, despite its belief “that there was substantial evidence against the Defendant

without the State’s improper comments for a jury to convict him of the offense, the Court

cannot say beyond a reasonable doubt that the Defendant would have been convicted if such

comments had not been made.”



              It is from this order that the State now seeks a writ of prohibition to prevent the

circuit court from enforcing the order and to remand the case to the circuit court to proceed

with sentencing.



                                  II. Standard of Review

              This Court held in syllabus point five of State v. Lewis, 188 W. Va. 85, 422

S.E.2d 807 (1992):

                      The State may seek a writ of prohibition in this Court in
              a criminal case where the trial court has exceeded or acted
              outside of its jurisdiction. Where the State claims that the trial
              court abused its legitimate powers, the State must demonstrate
              that the court’s action was so flagrant that it was deprived of its
              right to prosecute the case or deprived of a valid conviction. In
              any event, the prohibition proceeding must offend neither the
              Double Jeopardy Clause nor the defendant’s right to a speedy

       10
        (...continued)
already occurred and could not have been corrected by an corrective measures the Court
might employ.” Mr. Streets then argues that “[t]he Court then found that the lack of
objection . . . was not fatal to his Motion for New Trial noting the same was plain error. . .
.”

                                              12

              trial. Furthermore, the application for a writ of prohibition must
              be promptly presented.

It is with this standard in mind that we consider whether the requested writ of prohibition

should be granted.



                                       III. Discussion

              The issue before the Court is whether the circuit court exceeded its legitimate

power by depriving the State of a valid conviction in granting Mr. Streets a new trial. The

State argues that Mr. Streets failed to object to the alleged improper comments made during

closing and, therefore, he has waived this issue. Mr. Streets argues, with no supporting

authority, that his general objection made at the time the circuit court granted the State’s

motion to use the financial information as proof of motive pursuant to West Virginia Rule

of Evidence 404(b) “was broad enough to encompass the improper comments concerning .

. . [Mr. Streets’] character made by the State in closing.”



              We, therefore, must ascertain whether the alleged error concerning improper

comments made by the State was properly preserved before the circuit court. In State v.

Adkins, 209 W. Va. 212, 544 S.E.2d 914 (2001), the Court recognized that “[t]he rule in

West Virginia has long been that ‘[i]f either the prosecutor or defense counsel believes the

other has made improper remarks to the jury, a timely objection should be made coupled with

a request to the court to instruct the jury to disregard the remarks.’ Syl. pt. 5, in part, State

                                               13

v. Grubbs, 178 W. Va. 811, 364 S.E.2d 824 (1987).” Adkins, 209 W. Va. at 215, 544 S.E.2d

at 917. We also held in syllabus point six of Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d

410 (1945), that “[f]ailure to make timely and proper objection to remarks of counsel made

in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise

the question thereafter either in the trial court or in the appellate court.” Accord Rollins, 233

W. Va. at 720, 760 S.E.2d at 534, Syl. Pt. 3; Adkins, 209 W. Va. at 213, 544 S.E.2d at 915,

Syl. Pt. 2; see also State v. Mann, 205 W. Va. 303, 313-14, 518 S.E.2d 60, 70-71(1999)

(finding that the defendant cannot argue for the first time on appeal that the prosecutor made

improper remarks during closing); State v. Lewis, 133 W. Va. 584, 608, 57 S.E.2d 513, 528

(1949) (stating that “[i]n order to take advantage of remarks considered improper they must

be objected to and counsel must request the court to instruct the jury to disregard them.”).



               It is undisputed that Mr. Streets’ objection to the circuit court allowing the Rule

404(b) evidence to be introduced at trial to show Mr. Streets’ motive to embezzle from the

sheriff’s department was properly preserved before the circuit court. West Virginia Rule of

Evidence 103(2)(b) provides that “[o]nce the court rules definitively on the record–either

before or at trial–a party need not renew an objection or offer of proof to preserve a claim

of error for appeal.” That objection, however, failed to cover the alleged improper argument

of the State during closing. Rather, had an objection to the alleged improper argument of the

State during closing been made, it should have been expressed as exceeding the scope of the



                                                14

circuit court’s Rule 404(b) ruling allowing evidence of motive or improperly attacking Mr.

Streets’ character during the closing. See W. Va. R. Evid. 404(a)(1) (“Evidence of a person’s

character or character trait is not admissible to prove that on a particular occasion the person

acted in accordance with the character or trait.”).



              Thus, we agree with the State and the circuit court that counsel for Mr. Streets

failed to object to the alleged improper argument made by the State in order to give the court

an opportunity to rule on the objection and to preserve the alleged error. State v. DeGraw,

196 W. Va. 261, 272, 470 S.E.2d 215, 226 (1996) (“West Virginia Rule of Evidence

103(a)(1) provides, in pertinent part, that ‘[e]rror may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n

case the ruling is one admitting evidence, a timely objection or motion to strike appears of

record, stating the specific ground of objection, if the specific ground was not apparent from

the context. . . .’ Id. (emphasis added). In interpreting the significance of Rule 103(a)(1),

Justice Cleckley in his Handbook on Evidence for West Virginia Lawyers states: ‘the

objecting party should not benefit from an insufficient objection if the grounds asserted in

a valid objection could have been obviated had the objecting party alerted the offering party

to the true nature of the objection.’ 1 Franklin D. Cleckley, Handbook on Evidence for West

Virginia Lawyers § 1-7(C)(2) at 78 (3rd ed. 1994)[.]”). Consequently, Mr. Streets’

continuing objection to the circuit court’s determination that the Rule 404(b) evidence was



                                              15

admissible was insufficient to preserve the alleged error regarding the prosecutor’s comments

during trial.



                This determination, however, does not completely resolve the issue before us

because the circuit court granted Mr. Streets relief by applying the plain error doctrine. We

have held:

                        “The plain error doctrine of W. Va. R.Crim. P. 52(b),
                whereby the court may take notice of plain errors or defects
                affecting substantial rights although they were not brought to the
                attention of the court, is to be used sparingly and only in those
                circumstances in which a miscarriage of justice would otherwise
                result.” Syllabus Point 2, State v. Hatala, 176 W. Va. 435, 345
                S.E.2d 310 (1986).

Grubbs, 178 W. Va. at 812, 364 S.E.2d at 825, Syl. Pt. 4. By its very nature, the plain error

doctrine is reserved for only the most flagrant errors. In order “[t]o 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). Further,

regarding the application of the doctrine to comments during closing, we have cautioned

lawyers that

                the doctrine of plain error with regard to objectionable closing
                remarks is sparingly applied. This rule requires counsel to make
                timely objections so that the matter can be corrected at the trial
                court level. There is obviously a considerable tactical advantage
                to be gained if counsel can remain silent and then press the point
                on appeal through the plain error doctrine.


                                                16

Grubbs, 178 W. Va. at 818, 364 S.E.2d at 832.



              Based upon our review of the closing argument made by the State and the

circuit court’s ruling emanating therefrom, we find that the circuit court erred in applying

the plain error doctrine in this case. Specifically, we conclude that the circuit court erred in

determining that “there was obviously an error in that the prior bad character or misconduct

of the Defendant was used not only to prove motive, but clearly to insinuate that he acted in

conformity with that bad character in committing the offense.” Much of the State’s closing

argument focused upon Mr. Streets’ testimony during cross-examination where he repeatedly

stated that he “walked away” from three debts associated with homes in which he had

resided. Mr. Streets denied having financial difficulty in making the payments for his home

that was foreclosed upon, but he just decided to “walk away” from that home because there

was a “drug house” across the street. As to the home that Mr. Streets and his wife had

rented, they “walked away” from that home as well, because they could “[b]arely” make the

monthly payments on it. Finally, they “walked away” from another home Mr. Streets

described as a “slumlord” situation.



              Readily discerned from Mr. Streets’ testimony is that he opened the door for

the State’s argument. Mr. Streets offered explanations for the judgments against him that

were grounded in him being a good person. In other words, Mr. Streets offered that he was


                                              17

not to blame for the judgments. Instead, the judgments were the result of a drug house across

the street or a slumlord. He implied through his excuses that he was a good guy with good

explanations for having the judgments against him. We have previously held that “[a]n

appellant or plaintiff in error will not be permitted to complain of error in the admission of

evidence which he offered or elicited[.]” Syl. pt. 2, in part, State v. Bowman, 155 W. Va. 562,

184 S.E.2d 314 (1971); see State v. Hanson, 181 W.Va. 353, 363, 382 S.E.2d 547, 557

(1989). Consequently, Mr. Streets cannot now complain of any alleged error in the State’s

closing argument that was a direct result of his testimony.



              As we have recognized in State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163

(1995), that “[a] proper closing argument in a criminal case involves the summation of

evidence, any reasonable inferences from the evidence, responses to the opposing party’s

argument, and pleas for law enforcement generally.” Id. at 678 n.27, 461 S.E.2d at 184 n.27

(citing Coleman v. State, 881 S.W.2d 344 (Tex. Crim. App. 1994)). To this end, while

attorneys are given great latitude in arguing their cases, “[i]t is equally well settled, that

counsel must keep within the evidence and not make statements calculated to inflame the

minds of jurors intending to induce verdicts warped by prejudice.” State v. Kennedy, 162

W.Va. 244, 249, 249 S.E.2d 188, 191 (1978) (quoting State v. Lohm, 97 W.Va. 652, 663, 125

S.E. 758, 762 (1924)).




                                              18

              Based upon Mr. Streets’ testimony, which focused upon his justification for

the monetary judgments that had been introduced to show motive, the State was warranted

in arguing that just as Mr. Streets felt justified in walking away from various debts, he might

also feel justified in committing the crime with which he was charged. The State certainly

pushed the envelope with its comments during closing argument that Mr. Streets’

explanations about the monetary judgments provided “insight about” Mr. Streets’ “character”

and could have unnecessarily placed into jeopardy a case that was well supported by the

evidence. These unnecessary comments by an overzealous prosecutor are frustrating and we

do not approve of them; however, the prosecutor’s comments did not constitute error in this

case. Miller, 194 W. Va. at 7, 459 S.E.2d at 118, Syl. Pt. 7.



              Even assuming, arguendo, that the State’s limited remarks made during closing

were in error, the error was harmless in light of the evidence offered in this case. Despite the

circuit court’s determination that the error resulted in Mr. Streets not receiving a fair trial,

we disagree. As we stated in Guthrie,

              [t]he rule in West Virginia since time immemorial has been that
              a conviction will not be set aside because of improper remarks
              and conduct of the prosecution in the presence of a jury which
              do not clearly prejudice a defendant or result in manifest
              injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883
              (1983); State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982).

194 W. Va. at 684, 461 S.E.2d at 190. Further,

                      [t]he harmless error doctrine requires this Court to


                                              19

              consider the error in light of the record as a whole, but the
              standard of review in determining whether an error is harmless
              depends on whether the error was constitutional or
              nonconstitutional. It is also necessary for us to distinguish
              between an error resulting from the admission of evidence and
              other trial error. As to error not involving the erroneous
              admission of evidence, we have held that nonconstitutional error
              is harmless when it is highly probable the error did not
              contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358
              S.E.2d 212 (1987) (prosecutor’s remarks although improper
              must be sufficiently prejudicial to warrant reversal); State v.
              Brewster, 164 W. Va. 173, 261 S.E.2d 77 (1979).

194 W. Va. at 684, 461 S.E.2d at 190. Finally, this Court applies the following test for

determining whether improper prosecutorial comment is so damaging as to require reversal:

                      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, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).



              Based upon our review of the comments at issue, they were limited in the

context of a forty-five minute closing, they did not mislead the jury and they were not

deliberately placed before the jury to divert its attention. See id. Further, the issue of the

comments was nonconstitutional in nature as they emanated from an evidentiary ruling.

Thus, the issue turns on whether it is “highly probable the error did not contribute to the


                                             20

judgment.” Guthrie, 194 W. Va. at 684, 461 S.E.2d at 190.



              We find that any error with the State’s closing argument did not contribute to

Mr. Streets’ conviction. There was substantial evidence of Mr. Streets’ guilt admitted in this

case that supports his conviction. The evidence included business records that documented

Mr. Streets receiving cash from the sale of various firearms. There were also records that

established the firearms came from the sheriff’s department. Further, the sheriff testified that

Mr. Streets was not allowed to trade any firearms from the department for cash. There was

also evidence that Mr. Streets was the sole person in charge of the evidence room for the

sheriff’s department and the program of trading the firearms for store credit. Further, there

were six monetary judgments against Mr. Streets, which demonstrated he was in debt, giving

him a motive to embezzle. The overwhelming evidence introduced at trial would support the

jury’s conviction without the State’s comments during closing argument. Thus, we find the

circuit court erred in its determination that the case “was not ‘fairly tried’ as the State’s

comments in closing argument were improper, constituted plain error, and denied the

Defendant a fair trial.”



                                       IV. Conclusion

              Based upon the foregoing reasons, the circuit court exceeded its legitimate

powers in overturning and depriving the State of a valid conviction by setting aside Mr.

Streets’ conviction and granting him a new trial. See Lewis, 188 W. Va. at 86, 422 S.E.2d

                                              21

at 808, Syl. Pt. 5. Therefore, the State is entitled to relief in prohibition. Accordingly, the

November 24, 2015, order is vacated, and this case is remanded for Mr. Streets’ sentencing

on the conviction obtained.



                                                                                 Writ granted.




                                              22

