                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent,                                                      July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 19-0829 (Taylor County No. 19-F-55)                                     SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Charles W. Mauller,
Respondent Below, Petitioner



                               MEMORANDUM DECISION


       Petitioner Charles W. Mauller, by counsel Jason T. Gain, appeals the August 8, 2019, order
of the Circuit Court of Taylor County that sentenced petitioner upon his convictions for third
offense domestic battery, battery, and unlawful restraint. Further, due to petitioner’s two prior
felony domestic battery convictions, the circuit court sentenced petitioner as a recidivist to life
imprisonment with the possibility of parole. Respondent, the State of West Virginia, by its counsel
Elizabeth Grant, filed a response in support of the circuit court’s order.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Petitioner was indicted on three counts: domestic battery third or subsequent offense in
violation of West Virginia Code § 61-2-28(d) (Count 1), malicious assault in violation of West
Virginia Code § 61-2-9(a) (Count 2), and kidnapping in violation of West Virginia Code § 61-2-
14(a) (Count 3).

       Two pretrial motions are relevant to this appeal. The first, filed by the State, sought to
admit the following evidence under Rule 404(b) of the West Virginia Rules of Evidence: (1) four
uncharged instances of domestic violence allegedly perpetrated by petitioner against the victim to
show criminal intent and his modus operandi of exerting control over the victim; and (2) five
instances of domestic violence allegedly perpetrated by petitioner against his former girlfriend.
The second motion, filed by petitioner, sought a forensic examination to determine whether he was
competent to stand trial. Petitioner’s counsel proffered that petitioner had been diagnosed with


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bipolar disorder, intermittent explosive disorder, and a form of schizophrenia. However, petitioner
provided no medical records in support of his motion.

        At a pretrial hearing, the circuit court denied petitioner’s motion for a competency
examination because his motion was filed “pretty late in the process,” and, based on the court’s
extensive experience with petitioner over many years and several cases, it found it had “never seen
any indication that [petitioner] was mentally incompetent” or “lacked criminal responsibility.” The
court also addressed the State’s Rule 404(b) motion and excluded any evidence regarding
petitioner’s prior girlfriend. However, the circuit court allowed evidence of petitioner’s history of
violence with the victim because it would put the relationship in context and allow the jury “to
consider the motive, intent[,] and whether malice or ill will existed by [petitioner] toward [the
victim].”

         Petitioner’s two-day trial commenced on June 3, 2019. The victim testified that she had
dated petitioner for seven years. She discussed her tumultuous relationship with petitioner and
testified to the numerous times she had to escape petitioner’s beatings. She also said she had been
afraid to file a protective order against petitioner because she believed he would kill her if she did.
Regarding petitioner’s current charges, the victim testified that petitioner picked her up at her
father’s house on January 5, 2018, and that she went with him because he “said he wouldn’t hit
me no more. He couldn’t live without me. I loved him.” She said petitioner began to hit her that
same evening and beat her on and off for the next four days and that he forbade her from leaving
his house. The victim also testified that petitioner cut her hair, extinguished a cigarette on her face,
and cut her with an ice pick. She said petitioner told her that if she tried to escape, he would make
her a “vegetable.” The victim escaped when petitioner was “high,” and she went into an auto parts
store seeking help.

        The manager from the auto parts store testified at petitioner’s trial. He said that when the
victim came into his store, she was visibly upset and shaken. He said her “eyes were almost swollen
shut. Her jaw was swollen. And when she pulled off her toboggan her ear was swollen real bad.”
He said staff from the store called 911.

       The doctor who treated the victim testified that the victim suffered injuries to her face,
head, and left ear, and that she had a cigarette burn on her face. The doctor also said the victim had
“several linear injuries, abrasions, compatible with being made by a sharp object.”

       The victim’s father testified to the many injuries the victim sustained from petitioner’s
beatings over the years.

       At the close of all evidence, the circuit court gave the jury the following limiting instruction
regarding the testimony at trial:

               You’ve heard evidence concerning alleged conducts or acts of [petitioner]
       which are not charged in the indictment, and for which he is not on trial. You’re
       instructed that such evidence is not entered as proof of the defendant’s guilt on the
       present charges. The evidence has been admitted for a limited purpose only, and it
       may be considered by you only in deciding whether a given issue or element
       relevant to the present charge issues have been proven. In this instance the evidence

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        of [petitioner’s] prior conduct may be used to show his malice and intent towards
        the victim [], and further that [the victim’s] fear was grounded in rational thought.
        It may further be used to provide you the full story of the events and an explanation
        of the relationship between [petitioner] and [the victim]. You may not use this
        evidence in consideration of whether the [S]tate has established the charge for
        which [petitioner] is currently on trial. In addition, such evidence is not relevant to
        any matters, such as the character of [petitioner], whether [petitioner] is a bad
        person, or whether [petitioner] had the propensity or the disposition to commit the
        crimes charged. The evidence may not be considered in that regard since
        [petitioner’s] character is not at issue.

       Following deliberations, the jury convicted petitioner on all three counts of the indictment:
domestic battery, third or subsequent offense (Count 1); misdemeanor battery, a lesser included
offense of malicious assault (Count 2); and unlawful restraint, a lesser included offense of
kidnapping (Count 3).

        Following trial, the State filed a recidivist action against petitioner pursuant to West
Virginia Code § 61-11-18, alleging that he had two prior convictions for felony domestic battery,
third or subsequent offense. Petitioner responded with a motion to dismiss the recidivist
information and, the same day, entered a conditional admission to the recidivist information. The
circuit court found petitioner to be a recidivist and sentenced him to life with mercy for his
domestic battery conviction (Count 1), and one year in the regional jail for his unlawful restraint
conviction (Count 3), to be served consecutively. The court did not sentence petitioner for the
misdemeanor battery conviction (Count 2) because there was no finding by the jury that it was a
separate battery from the domestic battery charged in Count 1.

        Petitioner now appeals. “The Supreme Court of Appeals reviews sentencing orders,
including orders of restitution made in connection with a defendant’s sentencing, under a
deferential abuse of discretion standard, unless the order violates statutory or constitutional
commands.” Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). To the extent
petitioner’s appeal raises questions of law, we apply the following standard of review: “Where the
issue on an appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995).

       As noted above, petitioner was sentenced as a recidivist to life in prison under West
Virginia Code § 61-11-18(c),1 which provides, in relevant part, that when a “person shall have
been twice before convicted in the United States of a crime punishable by confinement in a
penitentiary, the person shall be sentenced to be confined in the state correctional facility for life.”

       Petitioner’s first assignment of error is that the circuit court’s imposition of a recidivist life
sentence violated his rights under the West Virginia and United States Constitutions. This Court


        1
          In the 2020 Legislative session, the Legislature modified West Virginia Code § 61-11-18
(1994), such that paragraph (c) has been moved to paragraph (d). However, no changes were made
that affect this appeal.
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adopted the following guidelines for assessing the constitutional proportionality of a life sentence
for recidivism in syllabus point 7, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981):

               The appropriateness of a life recidivist sentence under our constitutional
       proportionality provision found in Article III, Section 5, will be analyzed as
       follows: We give initial emphasis to the nature of the final offense which triggers
       the recidivist life sentence, although consideration is also given to the other
       underlying convictions. The primary analysis of these offenses is to determine if
       they involve actual or threatened violence to the person since crimes of this nature
       have traditionally carried the more serious penalties and therefore justify
       application of the statute.

(Emphasis added). These guidelines were recently modified by syllabus point 12 of State v. Hoyle,
242 W. Va. 599, 836 S.E.2d 817 (2019), where we held:

               For purposes of a life recidivist conviction under West Virginia Code § 61-
       11-18(c), two of the three felony convictions considered must have involved either
       (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the
       victim such that harm results. If this threshold is not met, a life recidivist conviction
       is an unconstitutionally disproportionate punishment under Article III, Section 5 of
       the West Virginia Constitution.

(Emphasis added).

        The constitutional standards set forth in Beck and Hoyle permit the imposition of a life
sentence for recidivism under West Virginia Code § 61-11-18(c) upon a showing of prior felony
convictions that involve either “actual violence” or “a threat of violence.” Petitioner argues that
these terms are unconstitutionally vague and violate a defendant’s due process rights.

        In that regard, petitioner contends that the United States Supreme Court has offered
conflicting approaches to assessing whether a prior felony could support a recidivist sentence as a
crime of violence, pointing out that the Supreme Court has sometimes applied an approach that
certain crimes are violent as a category, while other times it has used an approach that weighs
whether the felonious conduct of the defendant was violent or threatened violence. Compare
Taylor v. United States, 495 U.S. 575, 600 (1990) (adopting a “formal categorical approach” that
looks “only to the statutory definitions” of a defendant’s prior felony offenses, and not “to the
particular facts underlying those convictions.”) and Sessions v. Dimaya, 138 S. Ct. 1204, 1252
(2018) (Thomas, J., dissenting) (“I adhere to my view that a law is not facially vague ‘[i]f any fool
would know that a particular category of conduct would be within the reach of the statute, if there
is an unmistakable core that a reasonable person would know is forbidden by the law.’” (Citation
omitted)). Petitioner then contends that this Court has also employed conflicting approaches in
weighing whether a defendant’s prior felony was a crime of violence sufficient to support a
recidivist sentence. Petitioner asserts that, to make the determination, the Court has sometimes
applied a categorical approach (see State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800
(2002) (holding third-offense DUI is a violent offense); Syl. Pt. 4, State v. Kilmer, 240 W. Va. 185,
808 S.E.2d 867 (2017) (“The felony offense of driving while license revoked for DUI . . . is not
an offense that involves actual or threatened violence to the person for purposes of invoking the

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recidivist statute, West Virginia Code § 61-11-18(c).”)). Petitioner then states that at other times
the Court has examined the underlying conduct (see State ex rel. Boso v. Hedrick, 182 W. Va. 701,
709, 391 S.E.2d 614, 622 (1990) (Recidivist sentence was improper because the most recent, third
offense, night-time burglary, “was committed in an unoccupied dwelling. There is nothing in the
record to indicate that any weapons were used in these crimes or that there was a threat of violence
to any person.”)).

        Petitioner’s lengthy argument concludes with his assertion that a jury, rather than the circuit
court, should have been permitted to hear evidence regarding his prior felony, domestic battery
convictions, and thereafter determined all of the facts relevant to his recidivist punishment;
namely, whether petitioner’s prior convictions involved violence, a threat of violence, or had a
substantial impact upon his victims.

        Based on the record in this case, we reject petitioner’s argument. Here, petitioner’s central
conviction was for felony, third-or-subsequent-offense domestic battery. Petitioner’s recidivist
sentence was based on the fact that petitioner had previously been convicted, at least twice before,
of felony, third-or-subsequent-offense domestic battery. Petitioner does not contend these prior
convictions did not involve violence or threats of violence. Moreover, petitioner’s victim testified
to numerous prior acts of domestic battery and threatened acts of violence that happened over the
course of her seven-year relationship with petitioner. On this record, we mirror Justice Thomas’s
statement in Dimaya that any fool would know that his conduct was within the reach of the
recidivist statute, because any reasonable person would know that his repeated acts of domestic
violence are forbidden by the law. 138 S. Ct. at 1252. Whether we construe third-offense domestic
battery categorically as a crime of actual or threatened violence or examine the individual acts of
petitioner, the result in this case would be the same. The record clearly shows the petitioner
perpetrated repeated acts of domestic violence upon the victim in this case, and petitioner does not
deny the same. Thus, petitioner’s sentence is not unconstitutional under syllabus point 12 of Hoyle,
because all of his felony domestic battery convictions involved actual violence, threats of violence,
and a substantial impact on his victim. Hoyle, 242 W. Va. at __, 836 S.E.2d at 820. Accordingly,
on this record, we find no merit in petitioner’s first assignment of error.

        Petitioner’s second assignment of error is that the circuit court erred by refusing to order
that petitioner undergo a pretrial criminal competency evaluation. Petitioner argues that a circuit
court is required to order a competency examination “[i]f the court of record finds . . . that there is
probable cause to believe that the defendant’s criminal responsibility or diminished capacity will
be a significant factor in his or her defense[.]” W. Va. Code § 27-6A-4(a), in relevant part. At a
pretrial hearing, petitioner’s counsel proffered that he believed petitioner was taking medication
(possibly a lithium compound) and that petitioner had been diagnosed as having an “explosive
disorder.” Given these proffers, petitioner asserts that the circuit court should have referred him
for a psychiatric examination prior to trial.

      When a defendant challenges a circuit court’s decision regarding a competency
examination, we review the decision for an abuse of discretion:

              Because a trial court is able to observe the demeanor of the defendant and
       consequently has a better vantage point than this Court to make determinations
       regarding mental competency, we will disturb a lower court’s ruling denying a

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          psychiatric examination and related proceedings only where there has been an
          abuse of discretion.

State v. Sanders, 209 W. Va. 367, 379, 549 S.E.2d 40, 52 (2001). This Court has identified five
factors a circuit court may consider when deciding whether a competency examination is needed,
including:

                   Evidence of irrational behavior, a history of mental illness or behavioral
          abnormalities, previous confinement for mental disturbance, demeanor before the
          trial judge, psychiatric and lay testimony bearing on the issue of competency, and
          documented proof of mental disturbance are all factors which a trial judge may
          consider in the proper exercise of his discretion.

Syl. Pt. 5, State v. Arnold, 159 W. Va. 158, 219 S.E.2d 922 (1975), overruled on other grounds
by State v. Demastus, 165 W. Va. 572, 270 S.E.2d 649 (1980).

        We find no abuse of discretion by the circuit court. The record shows that beyond
petitioner’s counsel’s minimal proffer, petitioner offered no evidence in support of his motion for
a competency examination such as psychiatric or lay testimony regarding petitioner’s competency
or documentary proof of a mental disturbance. Further, the circuit court saw no evidence of
irrational behavior, no evidence of a history of mental illness, and no evidence petitioner had
previously been confined or treated for a mental disturbance. The circuit court noted that it “ha[d]
dealt with [petitioner] for many, many years, since he was a juvenile” and that in none of those
cases did the court perceive any evidence that petitioner had a mental illness. Accordingly, the
circuit court concluded “there was never any indication [petitioner] was mentally incompetent or
lacked criminal responsibility.”

        Clearly, the record on appeal fails to support petitioner’s claim that he lacked criminal
competency or his claim that the circuit court erred in failing to order a competency examination.
Because we find no abuse of the circuit court’s discretion, we reject petitioner’s second assignment
of error.

        Petitioner’s third and final assignment of error regards the presentation of evidence at trial
of petitioner’s past violence toward the victim. Rule 404(a)(1) of the West Virginia Rules of
Evidence prohibits the introduction of evidence of a “person’s character or character trait” to
“prove that on a particular occasion the person acted in accordance with the character or trait.”
Petitioner asserts that the circuit court erred in permitting the victim to testify that petitioner
committed four prior instances of domestic battery against her. Petitioner asserts that even if he
had committed four such prior acts, he claims this evidence did nothing to assist the jury and,
instead, prejudiced the jury against him.

          We apply a three-part analysis to the circuit court’s admission of evidence under Rule
404(b):

                  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
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       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).

         The first step of the LaRock analysis requires evidence that the “other acts” occurred.
Petitioner does not assert the other acts of domestic violence admitted into evidence by the State
at trial did not occur. Thus, we find no error by the circuit court regarding step one.

        Petitioner’s argument focuses on the second part of the LaRock analysis: whether the
evidence of other acts of domestic violence was admitted for a legitimate purpose. Petitioner
contends that the State used the “other acts” evidence to bolster the conclusion that petitioner was
guilty of the current charge of domestic battery due to his prior such acts. However, our review of
the record shows that the State sought to admit the evidence to support the second and third counts
of the indictment, which charged petitioner with malicious assault and kidnapping. Specifically,
the State offered the evidence to support its theory that petitioner’s conduct was malicious and
intentional, and not careless or negligent. Moreover, regarding the kidnapping charge, the State
needed to show the jury why the victim did not simply flee from petitioner when he did not
physically restrain her. In State v. Hanna, 180 W. Va. 598, 607, 378 S.E.2d 640, 649 (1989), we
approved of the admission of other acts of violence against a victim under Rule 404(b) to prove a
charge of kidnapping:

       Where the lack of consent is an element of the crime, we have recognized that
       evidence of a defendant’s prior violent behavior or incidents of bodily harm toward
       the victim or others of which the victim is aware may be admissible to show that
       [the victim’s] actions were not consensual, but were induced by fear.

By informing the jury about petitioner’s prior violent conduct and threats, the State sought to show
the basis for the victim’s fear and that her fear was grounded in rational thought, i.e., that her
perception was that petitioner was not joking or making an innocuous comment when he told the
victim if she tried to leave, “he would make [her] a vegetable.” Accordingly, we find the circuit
court did not err in finding that the evidence of petitioner’s prior domestic violence was admitted
for a legitimate purpose.

        Finally, petitioner challenges the third step of the LaRock analysis and asserts that the
prejudicial effect of the prior acts of domestic violence evidence outweighed its probative effect.
As we have often said, circuit courts are required to engage in a balancing analysis and determine
that “the probative value of such evidence must outweigh risks that its admission will create
substantial danger of unfair prejudice.” State v. McGinnis, 193 W. Va. 147, 156, 455 S.E.2d 516,
525 (1994). Moreover, “[t]he balancing . . . must affirmatively appear on the record.” Id.

        The circuit court’s analysis of the State’s evidence does appear in the record, and shows
that the court recognized, “[w]ithout question it is prejudicial[.]” However, the circuit court also
concluded that the “probative value outweigh[ed] that prejudice” because the evidence allowed
the State “to explain to the jury and allow them to consider the motive, intent and whether malice


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or ill will existed by [petitioner] toward [the victim] at the time in question of these current alleged
criminal actions.”

        Petitioner’s arguments fail to acknowledge that the victim’s fear of petitioner was critical
to the State’s claim petitioner had kidnapped the victim, and the State had no other alternatives
available to show that the victim’s fear was well founded.

        Petitioner also fails to show that the admission of the Rule 404(b) evidence affected his
substantial rights and changed the outcome of the trial. The evidence at trial showed that petitioner
repeatedly beat the victim over the course of four days, burned her face with a lit cigarette, and
struck her with an ice pick. This evidence supports the domestic battery conviction. Similarly, the
evidence at trial showed petitioner restrained the victim through both physical force and threats of
violence, all of which supported the jury’s conclusion that petitioner was guilty of unlawful
restraint. Thus, we find no abuse of discretion or other error in the circuit court’s admission of
evidence against petitioner under Rule 404(b).

        For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: July 30, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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