          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2015 Term
                                  _______________                         FILED
                                                                     November 18, 2015
                                                                        released at 3:00 p.m.
                                     No. 14-0968                        RORY L. PERRY II, CLERK

                                   _______________                    SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA



                           STATE OF WEST VIRGINIA,

                            Plaintiff Below, Respondent


                                           v.

                               RICHARD WAKEFIELD,

                               Defendant Below, Petitioner


       ____________________________________________________________

                  Appeal from the Circuit Court of Jefferson County

                      The Honorable David H. Sanders, Judge

                            Criminal Action No. 13-F-63


                                AFFIRMED

       ____________________________________________________________

                           Submitted: September 16, 2015

                             Filed: November 18, 2015



James T. Kratovil, Esq.	                        Brandon H. Sims, Esq.
Kratovil Law Offices PLLC	                      Assistant Prosecutor
Charles Town, West Virginia	                    Jefferson County Prosecutor’s Office
Counsel for the Petitioner	                     Charles Town, West Virginia
                                                Counsel for the Respondent


JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
                              SYLLABUS BY THE COURT



              1.     “The first and universal requirement for the admissibility of

scientific evidence is that the evidence must be both ‘reliable’ and ‘relevant.’ Under

Daubert/Wilt, the reliability requirement is met only by a finding by the trial court under

Rule 104(a) that the scientific or technical theory which is the basis for the test results is

indeed ‘scientific, technical, or specialized knowledge.’ The trial court’s determination

regarding whether the scientific evidence is properly the subject of ‘scientific, technical,

or other specialized knowledge’ is a question of law that we review de novo. On the other

hand, the relevancy requirement compels the trial judge to determine, under Rule 104(a),

that the scientific evidence ‘will assist the trier of fact to understand the evidence or to

determine a fact in issue.’ W.Va.R.Evid. 702. Appellate review of the trial court’s rulings

under the relevancy requirement are reviewed under an abuse of discretion standard.”

Syl. Pt. 3, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995).



              2.     “‘[A] double jeopardy claim [is] reviewed de novo.’ Syllabus Point

1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).” Syl. Pt. 1, State v.

McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012).



              3.     “In determining who is an expert, a circuit court should conduct a

two-step inquiry. First, a circuit court must determine whether the proposed expert (a)

meets the minimal educational or experiential qualifications (b) in a field that is relevant


                                              i
to the subject under investigation (c) which will assist the trier of fact. Second, a circuit

court must determine that the expert’s area of expertise covers the particular opinion as to

which the expert seeks to testify.” Syl. Pt. 5, Gentry v. Mangum, 195 W.Va. 512, 466

S.E.2d 171 (1995).



              4.     “When scientific evidence is proffered, a circuit court in its

‘gatekeeper’ role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d

196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), must

engage in a two-part analysis in regard to the expert testimony. First, the circuit court

must determine whether the expert testimony reflects scientific knowledge, whether the

findings are derived by scientific method, and whether the work product amounts to good

science. Second, the circuit court must ensure that the scientific testimony is relevant to

the task at hand.” Syl. Pt. 4, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).



              5.     “The question of admissibility under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt

v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct.

2137, 128 L.Ed.2d 867 (1994) only arises if it is first established that the testimony deals

with ‘scientific knowledge.’ ‘Scientific’ implies a grounding in the methods and

procedures of science while ‘knowledge’ connotes more than subjective belief or

unsupported speculation. In order to qualify as ‘scientific knowledge,’ an inference or

                                             ii
assertion must be derived by the scientific method. It is the circuit court’s responsibility

initially to determine whether the expert’s proposed testimony amounts to ‘scientific

knowledge’ and, in doing so, to analyze not what the experts say, but what basis they

have for saying it.” Syl. Pt. 6, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171

(1995).



              6.     “In analyzing the admissibility of expert testimony under Rule 702

of the West Virginia Rules of Evidence, the trial court’s initial inquiry must consider

whether the testimony is based on an assertion or inference derived from the scientific

methodology. Moreover, the testimony must be relevant to a fact at issue. Further

assessment should then be made in regard to the expert testimony’s reliability by

considering its underlying scientific methodology and reasoning. This includes an

assessment of (a) whether the scientific theory and its conclusion can be and have been

tested; (b) whether the scientific theory has been subjected to peer review and

publication; (c) whether the scientific theory’s actual or potential rate of error is known;

and (d) whether the scientific theory is generally accepted within the scientific

community.” Syl. Pt. 2, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).




              7.     “‘The test used to determine whether a trial court’s exclusion of

proffered evidence under our rape shield law violated a defendant’s due process right to a

fair trial is (1) whether that testimony was relevant; (2) whether the probative value of the


                                             iii
evidence outweighed its prejudicial effect; and (3) whether the State’s compelling

interests in excluding the evidence outweighed the defendant’s right to present relevant

evidence supportive of his or her defense. Under this test, we will reverse a trial court’s

ruling only if there has been a clear abuse of discretion.’ Syllabus Point 6, State v.

Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).” Syl. Pt. 8, State v. Robert Scott R., Jr.,

233 W.Va. 12, 754 S.E.2d 588 (2014).


              8.     “‘‘Where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one is whether each provision requires proof of an additional fact which

the other does not.’ Syl. pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131

(1983), quoting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306

(1932).’ Syllabus point 1, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).” Syl.

Pt. 4, State v. Sayre, 183 W.Va. 376, 395 S.E. 2d 799 (1990).



              9.     “‘The Double Jeopardy Clause in Article III, Section 5 of the West

Virginia Constitution, provides immunity from further prosecution where a court having

jurisdiction has acquitted the accused. It protects against a second prosecution for the

same offense after conviction. It also prohibits multiple punishments for the same

offense.’ Syl. pt. 1 of Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).” Syl.

Pt. 1, State v. Myers, 171 W.Va. 277, 298 S.E.2d 813 (1982).




                                            iv
              10.    “‘In ascertaining legislative intent, a court should look initially at the

language of the involved statutes and if necessary, the legislative history to determine if

the legislature has made a clear expression of its intention to aggregate sentences for

related crimes. If no such clear legislative intent can be discerned, the test set forth in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306 (1932), to

determine whether each offense requires an element of proof the other does not. If there

is an element of proof that is different, then the presumption is that the legislature

intended to create separate offenses.’ Syl. Pt. 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d

253 (1992).” Syl. Pt. 2, State ex rel. Games-Neely v. Silver, 226 W.Va. 11, 697 S.E.2d 47

(2010).




                                              v
Benjamin, Justice:

                Petitioner Richard Wakefield, defendant below, appeals his convictions of

two counts of sexual assault in the second degree and two counts of sexual assault in the

third degree for which he was effectively sentenced to not less than ten nor more than

twenty-five years in prison. Petitioner asserts four assignments of error alleging that the

circuit court erred in the following respects: 1) in allowing the State to present an expert

witness on the issue of GHB1 intoxication because the science behind the expert’s

testimony does not meet the Daubert standard; 2) in not allowing the Petitioner to

introduce evidence or question the State’s witness, Billy Carper, on what activity if any

took place immediately prior to P.L.2 going into the house where she was allegedly

assaulted; 3) in allowing the jury to consider both second degree sexual assault and third

degree sexual assault based on the same act in violation of double jeopardy principles;

and 4) in violating the Petitioner’s confrontation clause rights by allowing the bailiff to

have a conversation with a juror on February 12, 2014, about a potential witness. Having

fully considered the parties’ arguments, the record before us on appeal, and applicable

legal precedent, we affirm the circuit court’s order.



                  I. FACTUAL AND PROCEDURAL BACKGROUND

       1
           Gamma-Hydroxybutyrate is a central nervous system depressant.
       2
         Consistent with Rule of Appellate Procedure 40(e), we use initials to protect the
alleged victim’s identity.


                                              1

               On February 18, 2014, at the conclusion of a three-day jury trial, the

Petitioner was convicted of all four counts of Jefferson County Indictment 13-F-63,

which charged him with two counts of sexual assault in the second degree and two counts

of sexual assault in the third degree. Following a sentencing hearing on July 14, 2014,

the circuit court, by order entered July 16, 2014, sentenced the Petitioner to an effective

sentence of not less than ten nor more than twenty-five years in the penitentiary.3

Thereafter, following a hearing on August 4, 2014, and by order entered August 6, 2014,

pursuant to West Virginia Code § 62-12-26, the court further ordered that the Petitioner

be subject to the mandatory minimum of two years of supervised release following his

release from incarceration. It is from these convictions and sentences that the Petitioner

now appeals.



               The evidence adduced at trial was that on June 10, 2012, the Petitioner, the

alleged victim, P.L., and a third person, Billy Carper, met at Glory Days restaurant in

Ranson, Jefferson County, for an early dinner. After an evening spent together, the


       3
         The Petitioner was sentenced to not less than ten nor more than twenty-five years
for his two convictions for sexual assault in the second degree, which sentences were
ordered to be served concurrently with one another. Further, the Petitioner was sentenced
to not less than one nor more than five years for each of his two convictions for sexual
assault in the third degree, which were ordered to be served consecutively to one another
but concurrently to his sentences for sexual assault in the second degree. The sentences
imposed thus constituted an effective term of not less than ten nor more than twenty-five
years in the penitentiary.



                                             2

Petitioner allegedly sexually assaulted P.L. inside Mr. Carper’s house in the early

morning hours of June 11, 2012.



              At the time he allegedly committed the sexual assault of P.L., the Petitioner

was a 56-year-old police officer with the Department of Homeland Security who worked

with Mr. Carper at the Mount Weather facility in Loudoun and Clarke Counties in

Virginia. The Petitioner and his wife resided in Titusville, Pennsylvania, but he

commuted to Virginia several days each week residing at the barracks at Mount Weather.

During the months preceding the sexual assault, the bunk rooms at Mount Weather were

renovated, so when he was in the area for work, the Petitioner began to stay with his co­

worker, Mr. Carper, who had a guest room. Thereafter, the Petitioner began to regularly

stay at Mr. Carper’s residence whenever he was in the area, including on weekends when

he was not working.       Mr. Carper, a native of the Jefferson County area, took the

Petitioner to dinner and local bars in the area.



              Mr. Carper introduced the Petitioner to P.L. on an evening prior to the night

of the alleged sexual assault. The three planned to meet for an early dinner on June 10,

2012, at Glory Days. The men arrived first around 4:00 p.m., and ate and drank two beers

while watching a NASCAR race on television. P.L., a 25-year-old co-worker at Mr.

Carper’s second job, joined the men later, sometime after 5:00 p.m. P.L. ate an appetizer

and drank a beer.


                                              3

              After P.L. finished eating, the three drove in their separate cars to Mr.

Carper’s residence where the men showered and changed to go out for the evening.

Approximately 45 minutes to an hour later, the three left Mr. Carper’s residence in the

Petitioner’s vehicle. The three traveled to the Vista lounge where P.L. ate another

appetizer and drank part of a beer. According to P.L., “we weren’t there for very long,

just long enough to eat.” The three then went to the Turf in Charles Town, but decided

not to stay because the jukebox was broken. From the Turf, the three went to Doc’s bar,

also in Charles Town, where they remained for several hours over the rest of the evening.

P.L. drank several drinks while at Doc’s, but testified that she did not finish all of them.

During direct examination, P.L. testified:

              Q: Well, how did that happen that you didn’t drink all of
              those?

              A: I got to the point where I felt like I didn’t want to drink
              anymore. I started sipping on the last beer that I had, and it
              started to get really warm and I sat and sipped on that for
              probably a good hour.

              Q: Did you ultimately finish that beer that had gotten warm?

              A: No, ma’am.

              Q: Did you have anything else to drink after that?

              A: No, ma’am. Well, I started sipping on a cold beer that the
              [Petitioner] had brought me a cold beer and I told him I didn’t
              want it but it was cold so I started sipping on that instead of
              the warm beer.



                                             4

              Q: Did you finish that beer Mr. Wakefield, the [Petitioner],
              brought you?

              A: I do not remember finishing that beer, ma’am.


              Mr. Carper testified that P.L. did not appear to be intoxicated close to the

time they left Doc’s. P.L. herself testified that she did not feel intoxicated that night, was

not slurring her words, had no trouble with balance or walking, and was never slumped

over the bar or table. The three left Doc’s around 1:00 a.m. P.L. testified that she recalled

the Petitioner asking her and Mr. Carper if they were ready to leave, that she grabbed her

phone, keys and purse, “and I remember walking out the door, and that is the last thing I

remember.”



              According to P.L., her next memory was when “[she] woke up and [the

Petitioner] was attempting to have sex with [her].” P.L. testified that she could clearly see

the Petitioner because there was a light on in another room which provided sufficient

illumination that “[she] knew exactly who it was.” She testified that the Petitioner

performed oral sex on her, after which he engaged in vaginal intercourse. P.L. stated that

throughout this period, she “tried very hard to make [herself] move and [she] couldn’t.”

Nor could she speak or verbally communicate. She testified that she felt helpless and

described her experience by stating, “[i]magine trying so hard to force yourself to move

and you can’t do it no matter what force to move, trying so hard to make yourself stop, to

say stop, and you can’t even make yourself say stop.” P.L. further described her physical


                                              5

symptoms during the Petitioner’s sexual assault of her by stating, “[i]t was like being

outside your body watching everything happen, but you can feel everything, you can feel

every little touch, but at the same time not being able to do anything to make it stop.”

P.L. testified that at some point in the night while the Petitioner was present with her, she

was “throwing up violently and uncontrollably not from nausea just violently, violently

throwing up feeling like your stomach was being ripped out.” However, she was unsure

whether she was sick before or after the sexual assault.



              P.L. testified that when she awoke in the morning, she was disoriented and

wearing different clothing than she wore out the night before, including a pair of men’s

athletic shorts. She testified that she felt different than if she had a hangover. She stated,

“[w]ell, normally when somebody is sick with alcohol, you’re nauseous or have a

headache, you know, when you’re becoming intoxicated, you can feel that, I didn’t have

anything like that.” She walked downstairs from the bedroom where she woke up and

sought out Mr. Carper, with whom she stayed intermittently crying and sleeping for

several hours. After several hours, she informed Mr. Carper that the Petitioner had

sexually assaulted her during the night in the upstairs bedroom.



              Mr. Carper testified that he and P.L. confronted the Petitioner about the

sexual assault that morning. Initially Mr. Carper asked the Petitioner if “anything

happened” upstairs during the night. The Petitioner responded, “not that I know of.” Mr.


                                              6

Carper testified that the Petitioner did not deny that he sexually assaulted P.L., but

instead repeatedly stated he was sorry and that he did not remember what happened.

Upon further questioning by Mr. Carper, the Petitioner gave a detailed description of

being with P.L. in the guest room. Mr. Carper testified that the Petitioner told him he

was with P.L. “up until the point that she got sick and he was rubbing her back, then it

seemed, he blacked out, then he woke up and walked downstairs, so it looks like there

was some sort of gap there that he was not recalling.” Mr. Carper testified that he

confronted the Petitioner a second time later on June 11, 2012, and during this second

conversation the Petitioner said, “I don’t know how this could have happened,” and “I

might as well eat my gun.” Mr. Carper also testified that the Petitioner twice told him, “I

don’t know why you don’t just take me out right now.” Throughout this period, the

Petitioner was shaking violently. At one point, the Petitioner also stated he needed to call

his wife and tell her “what happened.”



              In the afternoon before leaving Mr. Carper’s residence with his belongings,

the Petitioner, at P.L.’s request, went out and purchased a morning after emergency

contraceptive pill for her. P.L. testified that she hesitated to immediately report the

sexual assault because the Petitioner was a police officer. Further, P.L. testified that she

was concerned that reporting the sexual assault could affect her own employment.

Nonetheless, P.L. did go to City Hospital and was examined by a forensic nurse examiner




                                             7

approximately sixteen to twenty hours after the sexual assault occurred. The forensic

nurse examiner found that P.L. exhibited bruising and vaginal tearing.



                             II. STANDARD OF REVIEW

              “The decision to admit or reject evidence is committed to the sound

discretion of a trial court, and the court’s determinations are reviewable only for an abuse

of discretion.” State v. LaRock, 196 W.Va. 294, 306, 470 S.E.2d 613, 625 (1996); Board

of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 612,

390 S.E.2d 796, 811 (1990); Rozas v. Rozas, 176 W.Va. 235, 240, 342 S.E.2d 201, 206

(1986). In Gentry v. Mangum, 195 W. Va. 512, 520 n. 6, 466 S.E.2d 171, 179 n. 6

(1995), we explained that

              [o]nly rarely and in extraordinary circumstances will we,
              from the vista of a cold appellate record, reverse a circuit
              court’s on-the-spot judgment concerning the relative
              weighing of probative value and unfair effect. Our review,
              however, must have some purpose and that is why we review
              under an abuse of discretion standard. In general, an abuse of
              discretion occurs when a material factor deserving significant
              weight is ignored, when an improper factor is relied upon, or
              when all proper and no improper factors are assessed but the
              circuit court makes a serious mistake in weighing them.


              In the area of scientific evidence, however, we have adopted a specifically

tailored standard of review. In syllabus point three of Gentry, 195 W. Va. 512, 466

S.E.2d 171, we stated:

              The first and universal requirement for the admissibility of
              scientific evidence is that the evidence must be both ‘reliable’

                                             8
             and ‘relevant.’ Under Daubert/Wilt, the reliability
             requirement is met only by a finding by the trial court under
             Rule 104(a) that the scientific or technical theory which is the
             basis for the test results is indeed ‘scientific, technical, or
             specialized knowledge.’ The trial court’s determination
             regarding whether the scientific evidence is properly the
             subject of ‘scientific, technical, or other specialized
             knowledge’ is a question of law that we review de novo. On
             the other hand, the relevancy requirement compels the trial
             judge to determine, under Rule 104(a), that the scientific
             evidence ‘will assist the trier of fact to understand the
             evidence or to determine a fact in issue.’ W.Va.R.Evid. 702.
             Appellate review of the trial court’s rulings under the
             relevancy requirement are reviewed under an abuse of
             discretion standard. State v. Beard, 194 W.Va. 740, 746, 461
             S.E.2d 486, 492 (1995).


             With respect to claims alleging double jeopardy, “[they are] reviewed de

novo.” See Syl. Pt. 1, State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012).

Keeping these standards of review in mind, we proceed to consider the Petitioner’s

assignments of error.



                                    III. ANALYSIS

      A. Expert Witness Testimony

             The State was permitted to introduce expert testimony at trial that P.L. was

subject to GHB intoxication on the night that she was allegedly sexually assaulted by the

Petitioner. The Petitioner alleges that the circuit court erred in allowing the State to

present one of its expert witnesses, Trinka Porrata, on the issue of GHB intoxication

because the science behind her testimony does not meet the standard enunciated in


                                            9

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d

469 (1993). The Petitioner asserts that Ms. Porrata is simply a self-proclaimed expert and

that her testimony regarding GHB intoxication constituted “junk science.”



              Prior to trial, the State duly notified the Petitioner’s counsel that it intended

to call two different expert witnesses, Dr. Adams and Ms. Porrata, on the issue of GHB

intoxication. The Petitioner’s counsel filed a motion to exclude Ms. Porrata as an expert

witness. The circuit court conducted a Daubert hearing on November 8, 2013. At the

hearing, Dr. Adams, who has a Ph.D. in pharmacology and toxicology, stated that she had

supervised the chemical analysis of a June 11, 2012 sample of P.L.’s urine. In a report

issued July 20, 2013, the results of that sample showed that there was 9.5 micrograms per

milliliter of GHB in P.L.’s urine. Dr. Adams opined that research has shown that living

people not exposed to GHB were known to show up to ten micrograms of GHB per

milliliter in their urine. She stated that after eight to ten hours, an administered dose of

GHB would be undetectable in a sample.



              P.L. was examined by a forensic nurse examiner approximately sixteen to

twenty hours after the sexual assault allegedly occurred. On cross-examination, Dr.

Adams testified that after twenty hours, administered GHB would not be detectable in the

urine. She went on to say:




                                             10

                  Q. Okay. But if we have the twenty hours before as your
              standard for your hypothetical question the twenty hour rule
              would be there would be no GHB from the administering
              twenty hours before, is this correct?

                  A. I wouldn’t expect it to still be detectable, correct.

                  Q. Okay. And so that other one would merely be a guess
              and couldn’t be applied to a reasonable degree of scientific
              certainty could there?

                  A. It would be a guess.


              The State then presented Ms. Porrata, a former Los Angeles police officer,

who testified, as discussed in further detail below, regarding her qualifications,

experience and familiarity with GHB. Ms. Porrata reviewed the report of Dr. Adams and

agreed that Dr. Adams was correct in her assumption that if a dose of GHB had been

administered at 2:00 a.m. and the sample was not collected until 10:00 p.m. later that day,

no such administered GHB could be detectable in a sample. Because of the absence of

other detectable drugs in P.L., and in view of P.L.’s symptoms on the night of the alleged

sexual assault, including her out of body sensations and inability to move or speak,

pristine memory loss, and profuse vomiting, Ms. Porrata concluded that this was a case

wherein the P.L. had been administered GHB.



              Following the Daubert hearing, the circuit court ruled that Dr. Adams and

Ms. Porrata were qualified to render expert opinions on GHB intoxication at trial.

Petitioner’s counsel objected to the circuit court’s ruling.


                                              11

              At trial, the State presented the testimony of both Dr. Adams and Ms.

Porrata. Petitioner’s counsel stipulated to Dr. Adams’ status as an expert witness. Dr.

Adams testified that the maximum time frame in which to detect an administered dose of

GHB was ten hours. On direct questioning, Dr. Adams testified:

                  Q. Can you draw any conclusion to a reasonable degree of
              scientific certainty whether GHB was used during the alleged
              sexual assault in this case?

                 A. I cannot.

Over the objection of the Petitioner, the State then moved to admit Dr. Adams’ report.

The defense also moved to strike the witness’s testimony.



              Next, Ms. Porrata testified that she believed that P.L. was the victim of a

GHB-facilitated sexual assault based on the symptoms described by P.L. Based upon

P.L.’s description of her pristine memory loss which precisely coincided with her

departure from Doc’s bar, her awakening during the sexual assault with a complete

inability to speak or move her limbs, her out-of-body sensations, and her violent

vomiting, Ms. Porrata’s testified that a drug was likely administered to P.L. which caused

her to become intoxicated and incapacitated. Ms. Porrata opined that Dr. Adams’ report

and testimony of the absence of other drugs in P.L.’s body was significant in that it ruled

out other drugs that were “[m]ost of the more common ones and were likely ones.” Ms.

Porrata testified, “Any other drugs that would have given somewhat similar symptoms


                                            12

and would be things to consider would have still been there and they would have tested

positive.” Thus, using the process of elimination, Ms. Porrata concluded that GHB was

the only substance which would have caused P.L’s reported symptoms and which would

have been absent from P.L.’s body twenty hours later. Ms. Porrata further testified that:

              Q: So were you able to use the absence of those substances to
              determine what in your opinion was the drug administered to
              [P.L.] prior to this drug-facilitated sexual assault?

              A: Yes.

              Q: Which was that?

              A: That while it was most consistent with GHB in the first
              place, even with other things that would have been potential,
              they were not there at this point and would have been, which
              reaffirms that it most likely was GHB.

              Q: Putting it another way, by process of elimination you are
              able to determine that it was GHB as well as the consistency
              with all of the reports that she made of her symptoms?

              A: Yes.

The Petitioner renewed his objection to Ms. Porrata testifying as an expert and further

objected to her conclusions and her testimony.



              On appeal, the Petitioner argues that Ms. Porrata offered no competent peer

reviewed articles to support her opinions, and that the only two articles she mentioned in

her curriculum vitae were ones in the European Journal of Emergency Medicine related

to 226 GHB-associated fatalities that she authored. The Petitioner contends that Ms.

Porrata is simply a former Los Angeles police officer that observed phenomena that was

                                            13

disturbing to her and thus, she decided to look at this issue during the course of her

employment and record anecdotal data.        The Petitioner avers that Ms. Porrata then

constructed a theory from this anecdotal data and became a self-made expert, and that her

testimony is not scientifically reliable. The Petitioner asserts that there was no testing of

her conclusion, no testimony concerning her peer reviewed articles, no testimony of the

potential role of error and no information on how this theory has been accepted into the

scientific community under Wilt v. Buracker, 191 W. Va. 35, 443 S.E.2d 196 (1993) and

Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. The Petitioner argues that

because this inflammatory testimony was erroneously presented, and that, coupled with

the Petitioner’s inability to absolutely deny any contact with P.L., he was convicted of

second and third degree sexual assault.



              “The decision to admit or reject expert evidence is committed to the sound

discretion of a trial court, and the court’s determinations are reviewable only for an abuse

of discretion.” State v. LaRock, 196 W.Va. at 306, 470 S.E.2d at 625. Rule 702 of the

West Virginia Rules of Evidence provides, in pertinent part, that, “[i]f 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.” With respect to the admissibility of expert testimony, this Court stated in San

Francisco v. Wendy’s Intern., Inc., 221 W.Va. 734, 741, 656 S.E.2d 485, 492 (2007):


                                             14

              “The Rules of Evidence embody a strong and undeniable
              preference for admitting any evidence which has the potential
              for assisting the trier of fact.” Kannankeril v. Terminix
              International, Inc., 128 F.3d 802, 806 (3rd Cir. 1997).


              “Rule 702 reflects an attempt to liberalize the rules governing the

admissibility of expert testimony.” Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.

1999). See also Gentry v. Mangum, 195 W.Va. at 520, 466 S.E.2d at 179 (“In

Daubert/Wilt, the Frye test was abandoned by the courts, concluding that Frye’s rigid

standard was inconsistent with the liberal thrust of the Federal and West Virginia Rules

of Evidence.” (emphasis in original)); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169,

109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (highlighting the “‘liberal thrust’ of the Federal

Rules and their ‘general approach of relaxing the traditional barriers to opinion

testimony.’”). “The rule ‘is one of admissibility rather than exclusion.’” In re Flood

Litig. Coal River Watershed, 222 W.Va. 574, 581, 668 S.E.2d 203, 210 (2008) (quoting

Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991)). “Disputes as to the

strength of an expert’s credentials, mere differences in the methodology, or lack of

textual authority for the opinion go to weight and not to the admissibility of their [sic]

testimony.” Gentry v. Mangum, 195 W.Va. at 527, 466 S.E.2d at 186 (citation omitted).



              With respect to expert witnesses, “circuit courts must conduct a two-part

inquiry under Rule 702 and ask: (1) is the witness [qualified as] an expert; and, if so, (2)

is the expert’s testimony relevant and reliable?” San Francisco v. Wendy’s Int’l, Inc., 221


                                            15

W.Va. at 741, 656 S.E.2d at 492 (citations omitted). In syllabus point 5 of Gentry we set

forth the factors a trial court must analyze to determine if an expert is qualified to render

an opinion under Rule 702:

              In determining who is an expert, a circuit court should
              conduct a two-step inquiry. First, a circuit court must
              determine whether the proposed expert (a) meets the minimal
              educational or experiential qualifications (b) in a field that is
              relevant to the subject under investigation (c) which will
              assist the trier of fact. Second, a circuit court must determine
              that the expert’s area of expertise covers the particular
              opinion as to which the expert seeks to testify.


195 W.Va. 512, 466 S.E.2d 171. We have also held that, for purposes of determining

whether a person is qualified to testify as an expert,

              [n]either a degree nor a title is essential, and a person with
              knowledge or skill borne of practical experience may qualify
              as an expert, although the circuit court may exclude testimony
              if the experience is too far removed from the subject of the
              proposed testimony.

Tracy v. Cottrell ex rel. Cottrell, 524 S.E.2d 879, 899, 206 W. Va. 363, 383 (1999).



              In syllabus point four of Gentry, 195 W. Va. 512, 466 S.E.2d 171, this

Court held that,

              When scientific evidence is proffered, a circuit court in its
              “gatekeeper” role under Daubert v. Merrell Dow
              Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
              L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443
              S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct.
              2137, 128 L.Ed.2d 867 (1994), must engage in a two-part
              analysis in regard to the expert testimony. First, the circuit
              court must determine whether the expert testimony reflects

                                             16
              scientific knowledge, whether the findings are derived by
              scientific method, and whether the work product amounts to
              good science. Second, the circuit court must ensure that the
              scientific testimony is relevant to the task at hand.


              In syllabus point six of Gentry, 195 W. Va. 512, 466 S.E.2d 171, this Court

explained that,

              The question of admissibility under Daubert v. Merrell Dow
              Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
              L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443
              S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct.
              2137, 128 L.Ed.2d 867 (1994) only arises if it is first
              established that the testimony deals with “scientific
              knowledge.” “Scientific” implies a grounding in the methods
              and procedures of science while “knowledge” connotes more
              than subjective belief or unsupported speculation. In order to
              qualify as ‘scientific knowledge,’ an inference or assertion
              must be derived by the scientific method. It is the circuit
              court’s responsibility initially to determine whether the
              expert’s proposed testimony amounts to “scientific
              knowledge” and, in doing so, to analyze not what the experts
              say, but what basis they have for saying it.


              This Court discussed various factors that a circuit court should analyze in

assessing the expert testimony’s reliability in Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d

196:

              [i]n analyzing the admissibility of expert testimony under
              Rule 702 of the West Virginia Rules of Evidence, the trial
              court’s initial inquiry must consider whether the testimony is
              based on an assertion or inference derived from the scientific
              methodology. Moreover, the testimony must be relevant to a
              fact at issue. Further assessment should then be made in
              regard to the expert testimony’s reliability by considering its
              underlying scientific methodology and reasoning. This
              includes an assessment of (a) whether the scientific theory

                                            17
             and its conclusion can be and have been tested; (b) whether
             the scientific theory has been subjected to peer review and
             publication; (c) whether the scientific theory’s actual or
             potential rate of error is known; and (d) whether the scientific
             theory is generally accepted within the scientific community.


Syl. Pt. 2, Wilt. However, subsequently, in San Francisco v. Wendy’s Intern., Inc., 221

W. Va. 734, 656 S.E.2d 485, this Court cautioned that,

             [the Wilt] factors are by no means a definitive checklist or
             test of reliability. Other courts have developed additional
             factors, such as whether the scientific theory “was developed
             for litigation or naturally flowed from the expert’s research;
             whether the proposed expert ruled out other alternative
             explanations; and whether the proposed expert sufficiently
             connected the proposed testimony with the facts of the case.”
             Lauzon v. Senco Products, Inc., 270 F.3d 681, 687 (8th Cir.
             2001) (citations omitted). Sometimes, a theory first appears in
             court because of “(a) the inability to publish in a peer review
             journal because of industry control, (b) the testimony is not
             novel and therefore of little publication interest, [or] (c) the
             topic is of little general interest.” Larry E. Coben,
             Crashworthiness Litigation, § 24:4 [1998]. A court may treat
             an expert’s qualifications as circumstantial evidence that he
             or she has used a scientifically valid methodology or mode of
             reasoning in drawing his or her conclusions. Ambrosini v.
             Labarraque, 101 F.3d 129, 140 (D.C.Cir.1996). In sum,
             regardless of what other factors a court considers, an expert’s
             opinion is still reliable and admissible if “the expert explains
             precisely how the conclusions were reached and points to an
             objective source to show that his or her conclusions are based
             on a scientific method used by at least a minority of scientists
             in the field.” Coben, Crashworthiness Litigation.

(emphasis added).


             In discussing the meaning of “reliability,” this Court has also stated:



                                            18

              The assessment of whether scientifically-based expert
              testimony is “reliable,” as that term is used in [Daubert v.
              Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
              2786, 125 L.Ed.2d 469, and Wilt v. Buracker, 191 W.Va. 39,
              443 S.E.2d 196 (1993)], does not mean an assessment of
              whether the testimony is persuasive, convincing, or well-
              founded. Rather, assessing “reliability” is a shorthand term of
              art for assessing whether the testimony is to a reasonable
              degree based on the use of knowledge and procedures that
              have been arrived at using the methods of science—rather
              than being based on irrational and intuitive feelings, guesses,
              or speculation. If the former is the case, then the jury may (or
              may not, in its sole discretion) “rely upon” the testimony.

In re Flood Litig., 222 W.Va. at 582 n. 5, 668 S.E.2d at 211 n. 5. This Court specifically

emphasized in Gentry that,

              [u]nder Daubert/Wilt, the circuit court conducts an inquiry
              into the validity of the underlying science, looking at the
              soundness of the principles or theories and the reliability of
              the process or method as applied in the case. The problem is
              not to decide whether the proffered evidence is right, but
              whether the science is valid enough to be reliable.

Gentry, 195 W.Va. at 523, 466 S.E.2d at 182 (emphasis in original).



              During the Daubert hearing in the case sub judice, counsel for the State

presented Ms. Porrata’s qualifications, including several of her peer reviewed articles

listed on her curriculum vitae for the court’s consideration:


              Ms. Porrata has worked in law enforcement for twenty-five
              years. She worked at the Los Angeles Police Department. She
              worked in sexual assault and also in narcotics. She’s worked
              as a drug consultant. She’s assisted in writing legislation in
              California and federal legislation about drugs especially drug
              facilitated sexual assault. She has a bachelor’s of police

                                             19
              administration and public safety from Michigan State. She
              also has a number of peer reviewed journal articles that are
              listed in her curriculum vitae those involving [Dr. Deborah]
              Zvosec. One is called “Preventable Deaths Associated with
              Gamma Hydroxybutryrate,” another is “Fatal Motor Vehicle
              Collisions While Gamma Hydroxybutyrate Intoxicated,” a
              third “Preventable Deaths from Gamma Hydroxybutyrate
              Ingestion, a fourth, “Gamma Hydroxybutyrate Associated
              Fatalities Overlap of Post-mortem GHB Levels with
              Endogenous Therapeutic and Non-fatal GHB Toxicity Cases
              and Factors Supporting Exogenous Origin,” all four of these
              are peer review articles related to GHB.4

       4
          Specifically, Ms. Porrata’s curriculum vitae and report provides that she was
involved in initiating and writing the proposal for the California legislation for both
flunitrazepam (Rohypnol, aka roofies) and GHB and testified before legislative
committees regarding those drugs. She was also involved in federal GHB legislation and
testified before a Congressional hearing. She was involved with the Los Angeles
Sheriff’s Department (LASD) and Santa Monica Rape Treatment Center (SMRTC) and
other medical professionals in developing joint policies and a single sexual assault kit to
be utilized by both LAPD and LASD in response to the growing issue of drug-facilitated
sexual assault. The SMRTC is highly regarded in the medical sexual assault field and her
early training materials on drug-facilitated sexual assault were utilized in other
nationwide training manuals, including publications by the National Drug Intelligence
Center of the US Department of Justice and the National Association of District
Attorneys on investigation of drug-facilitated sexual assaults.

        Ms. Porrata’s curriculum vitae and report also reflects that she has been training
law enforcement and medical professionals about drug-facilitated sexual assault since
1995. Since retiring from the LAPD, she has worked continuously as a drug consultant,
providing training and consultation and expert testimony on the subjects of rave and club
drugs, current drug trends, and drug-facilitated sexual assault. She is internationally
recognized as an expert on these issues and particularly the drug GHB and has worked
with and presented with highly noted rape and GHB experts and toxicologists. She has
also presented for the International Association of Forensic Nurses on the topic of GHB
addiction, as well as for numerous police and medical conferences on current drug trends
and drug-facilitated sexual assault. She co-authored a chapter for the book, “Drug-
Facilitated Sexual Assault: A Forensic Handbook,” which is considered the authoritative
source on how to investigate drug-facilitated sexual assault cases involving GHB and
other predatory drugs, victim response and investigative techniques. She has consulted
                                                                           (continued . . .)

                                            20

              Additionally, prior to asking that Ms. Porrata be recognized as an expert in

the field of GHB and drug-facilitated sexual assault, counsel for the State also established

the following about Ms. Porrata: she is president of Project GHB; she has worked with

more than 3,500 GHB addicts in twenty different countries; she has interviewed hundreds

of sexual assault victims and hundreds of voluntary users of GHB; and she provides

training to medical professionals, police officers and law enforcement regarding GHB-

administered doses in use with drug-facilitated sexual assault, which courses range from

fifteen-minute roll call classes to sixteen-hour courses on drug-facilitated sexual assault

for the Regional Counterdrug Training Academy for eight southern states. In ruling that

Ms. Porrata was qualified as an expert witness and that her testimony was relevant and

reliable and therefore admissible, the circuit court articulated the following reasons for its

decision:


              And so what we have is a report and conclusions reached as
              to the amount of certain substances in the urine and then an
              interpretation of that report by the witness Trinka Porrata and
              Trinka Porrata testified on direct to her expertise that she was
              twenty-five years as a police officer in Los Angeles, six years


on numerous criminal cases, for both prosecution and defense, and civil cases on various
drugs and has testified as an expert as a result of numerous sexual assault and drug
investigations and arrests in local, state and federal courts. She is currently an adjunct
instructor for St. Petersburg College in Florida, teaching “Current Drug Trends” and
“Drug-Facilitated Sexual Assault. She also teaches a drug-facilitated sexual assault class
Regional Counterdrug Training Academy in Meridan, Mississippi.


                                             21
              in drug enforcement, that she’s been heavily involved in
              movements to make certain drugs which have a reputation for
              facilitating sexual assault to move them [t]o the category of
              being illegal and that she had worked with a number of
              doctors, that she has taught worldwide, that she held seminars
              both nurses and medical setting and police officer - training
              officers and that she has written articles that have been peer
              reviewed and that she is has for many years been active in
              what I guess she would describe as a phenomena of drug
              assisted sexual assaults.

              She testified to the testing of subjects that was a double blind
              testing with regard to the effects of these drugs in the system
              and it appeared to the Court that she had a level of detail and
              expertise with regard to these substances, that would rather
              easily exceed that of a lay person in fact she would appear to
              be one of the foremost experts in this field currently working.
              So it appears that a proposition as to the effect of these types
              of substances on a person and how they might be used and the
              effects that one might expect from them she would appear to
              be a competent] expert in that area. It would appear that also
              that the study of them has been that it strikes the Court as
              being reasonabl[y] scientific and not as we’ve said at the
              outset, not junk science, but science with an actual basis and
              she would appear to be a person who would be qualified to
              give such opinion as to the effects of such a substance upon a
              human being and whether or not that would be consistent
              with an issue in this case where we have an alleged victim in
              the case who by proffer will testify that her own experiences
              of that evening are that she was sexually assaulted when she
              was physically incapacitated due to the administration of a
              substance which involuntarily left her physically
              incapacitated and... I think it’s relevant evidence that the state
              would be permitted and would not exclude it.


              Upon review of the record before us and the applicable precedent, we

conclude that the circuit court did not abuse its discretion in allowing Ms. Porrata to

testify as an expert in this field. First, the court addressed whether the scientific theory


                                             22

and its conclusion can be and have been tested. The court found that double blind testing

had been performed to support Ms. Porrata’s testimony. Moreover, it concluded that the

scientific theories espoused by Ms. Porrata were subjected to peer review and

publication, as evidenced by the number of peer reviewed articles cited in Ms. Porrata’s

curriculum vitae and listed on the record by the prosecutor. Further, the court recognized

that the scientific theory is generally accepted within the scientific community, and is

taught to both medical and law enforcement professionals by Ms. Porrata herself, and that

Ms. Porrata is one of the foremost authorities on the subject. Accordingly, the circuit

court concluded that the testimony was to a reasonable degree based on the use of

knowledge and procedures that have been arrived at using the methods of science, rather

than being based on irrational and intuitive feelings, guesses, or speculation. In re Flood

Litig., 222 W.Va. at 582 n.5, 668 S.E.2d at 211 n.5. Given the liberal thrust of Rule 702

and observing the principles of stare decisis when we consider our legal precedent on this

issue, we cannot say that the circuit court committed an abuse of discretion in admitting

Ms. Porrata’s expert testimony.



       B. Cross-Examination of Billy Carper

              In his second assignment of error, the Petitioner contends that the court

erred in not allowing him to introduce evidence or question the State’s witness, Billy

Carper, on what activity if any took place immediately prior to P.L. going into the house

where she was allegedly assaulted. Petitioner alleges that during the cross-examination


                                            23

of Billy Carper, it became obvious that P.L. expressed some interest in him. Mr. Carper

testified that on their way home from Doc’s bar, he was in the front seat and the

Petitioner was driving. Mr. Carper stated that P.L. began pulling on Mr. Carper’s arm to

try to get him into the backseat. Mr. Carper further testified that he was pulled into the

backseat with P.L., whereupon defense counsel inquired as to what happened. At that

point, the State made a rape shield objection.5 The circuit court stated that this testimony




       5
           Our rape shield statute, W. Va. Code § 61-8B-11(b) (1986) provides,

                In any prosecution under this article evidence of specific
                instances of the victim’s sexual conduct with persons other
                than the defendant, opinion evidence of the victim’s sexual
                conduct and reputation evidence of the victim’s sexual
                conduct shall not be admissible: Provided, That such evidence
                shall be admissible solely for the purpose of impeaching
                credibility, if the victim first makes his or her previous sexual
                conduct an issue in the trial by introducing evidence with
                respect thereto.

             Recently, in Syllabus Point 8 of State v. Robert Scott R., Jr., 233 W.Va. 12,
754 S.E.2d 588 (2014), this court reiterated its holding regarding the standard for
evaluating the exclusion of evidence pursuant to the rape shield law codified at West
Virginia Code § 61-8B-11 and in West Virginia Rule of Evidence 404(a)(3):

                “The test used to determine whether a trial court’s exclusion
                of proffered evidence under our rape shield law violated a
                defendant’s due process right to a fair trial is (1) whether that
                testimony was relevant; (2) whether the probative value of the
                evidence outweighed its prejudicial effect; and (3) whether
                the State’s compelling interests in excluding the evidence
                outweighed the defendant’s right to present relevant evidence
                supportive of his or her defense. Under this test, we will
                reverse a trial court’s ruling only if there has been a clear
                                                                               (continued . . .)

                                               24

was not covered by rape shield, but rather was a statement of what happened at a time

close to the alleged assault. Specifically, it stated,

              Many of the things at least in my experience that the rape
              shield law is meant to protect against is the use of things that
              have to do with a person’s reputation or previous actions or
              things of that nature. But it appears to the Court that what we
              are hearing so far is things that might be illustrative of the
              degree of intoxication or mental state going into an evening.
                                             ...

              I think as long as the direction of this inquiry has to do with
              the state of mind of the victim on the night in question, the
              actions of the victim on the night in question, that it may be
              relevant to the activities of the evening. I don’t see the rape
              shield laws being implicated.




              abuse of discretion.” Syllabus Point 6, State v. Guthrie, 205
              W.Va. 326, 518 S.E.2d 83 (1999).

             This Court in State v. Green, 163 W.Va. 681, 693, 260 S.E.2d 257, 264
(1979), wrote:

              We would suggest that evidence of consensual sexual
              activities with others, not specifically and directly related to
              the act of which a victim complains, should never be
              admissible; and that such evidence that is specifically,
              directly related to the act for which a defendant stands
              charged, must be of a quality that its admission is necessary
              to prevent manifest injustice and therefor outweigh the State’s
              interest in protecting persons who have been sexually abused
              from attempts at besmirchment of their character by ones who
              have trespassed upon their bodies.




                                               25

              The State’s counsel noted its concerns that the Petitioner’s counsel may

elicit irrelevant testimony regarding whether P.L. and Mr. Carper were kissing in the

back of the truck, and that this evidence of consensual activity with others which is not

specifically related to the act of which P.L. complains was protected by the rape shield

statute.   The Petitioner’s counsel reiterated that he believed this information was

necessary to set the scene as to what happened that night. He stated that he needed “to

have those answers to questions because it explains basically why [P.L.] did what she

did, not necessarily to prove her character, because that [was] not the purpose for which

[he was] asking this, it is why she did what she did. He argued,

              I think, again, as the Court pointed out at a sidebar, what she
              did at the bathroom at Doc’s would be extrinsic to the act in
              question, whereas what she did in the truck that caused her to
              walk into the house and race upstairs is intrinsic to this
              particular set of facts and basically could maybe explain that
              or may help the jury understand what happened.

              This is not remote in time. This isn’t character evidence.
              This is the gist of this charge against Mr. Wakefield.


              The State’s counsel countered that,

              [t]he state of mind of [P.L.] has nothing to do with the
              charges against Mr. Wakefield. . . That is not relevant and it
              does not go to any of the elements of the offense. What goes
              to the elements of the offense is what happened in that
              upstairs bedroom when [P.L.] was sexually assaulted, not
              what happened in the back seat of a truck on the way to the
              house.


              The Petitioner’s counsel went on the argue,


                                            26

              [t]his has nothing to do with reputation, has nothing to do
              with her physical or sexual contact with somebody else,
              because I believe there is not going to be any indication that
              there was sexual contact but I don’t know.

              But even if there were, if she had capacity to give consent, the
              State has not brought any kind of civil action or criminal
              action against Mr. Carper, so if she had the capability of
              giving consent to sexual activity in the truck, which I don’t
              know whether it did or didn’t, I don’t think there was, then
              that would be relevant as to whether or not within a certain
              period of time, and we don’t know how long that is because
              the victim doesn’t remember, I think all of that becomes
              relevant and it becomes critical to our case and would be a
              manifest injustice to use the rape shield to say that the
              physical actions of the alleged victim immediately prior to the
              alleged crime would not be admissible.


              After some discussion by the circuit court regarding the function of the rape

shield law and its necessity in protecting rape victims from scurrilous character attacks, it

ultimately ruled that,

              [w]e are moving into a period of time very, very close to the
              actions complained of. We are dealing with essential issues
              in the case which are consciousness, awareness, physical
              capacity, mental capacity.

              There is a concept in the law called the rule of completeness
              which I think would rather suggest that, especially in an
              instance where the State’s case may have a period of time that
              cannot be spoken to, that to preclude a witness from testifying
              as to something that happened that may have the capacity of
              showing and reflecting upon the abilities or awareness and
              degree of consciousness or whatever else of the victim in this
              case, that it just seems so relevant and so far from an attempt
              to besmirch character and so really sort of right at the issues
              at hand, that I think Mr. Kratovil doesn’t put too fine a point
              on it, that it could work a manifest injustice in the case in not


                                             27
              allowing the case to be presented. I am persuaded that would
              be the case.

              Now Mr. Kratovil and Madam Prosecutor, both of you upon
              making this ruling, Madam Prosecutor I note the State’s
              objection, but, Mr. Kratovil, that is not a license for you to,
              depending upon what this witness’ response may be to some
              of these questions, to ask inflammatory follow up questions
              or questions which may attempt to sort of link some kind of
              comment upon a connection or sort of salacious connection or
              anything of that nature. I don’t think I have to caution you of
              that, but I am just saying it to let it be known.

              You argue, first of all, that you don’t know what his response
              is going to be, and, secondly, what you suspect them to be,
              within that limited window of your purported expectation and
              use, I think that you have a right to do it.

              I will note the State’s objection to that.


              Petitioner contends on appeal that as a result of the circuit court’s

admonishment, a weak record was made about what happened in the backseat. The

Petitioner contends that Mr. Carper was then asked what happened when he and P.L.

were locked in the truck, but he really did not answer the question. The Petitioner

maintains that based upon the court’s ruling, he was unable to effectively cross-examine

the witness. Petitioner alleges that he would have asked a follow-up question regarding

any sexual activity that may have occurred between P.L. and Mr. Carper. The Petitioner

contends that it was important to determine what happened in the truck after it was

locked because it might explain the bruising identified by the forensic nurse and P.L.’s

slight vaginal tearing.



                                              28

              We find the Petitioner’s argument unconvincing. Our review of the record

reveals that the trial court did not preclude the Petitioner from fully cross-examining Mr.

Carper on what took place in the truck. Rather, as the above-quoted record demonstrates,

the trial court merely cautioned the Petitioner not to ask any inflammatory questions. In

other words, it merely limited how the Petitioner was to frame the questions presented to

Mr. Carper.    Following the circuit court’s ruling, the Petitioner’s counsel had the

opportunity to ask Mr. Carper what happened, if anything, while he was in the back seat

with [P.L.]. Mr. Carper testified as follows:

              A.     There was a conversation. There were some –[P.L.]
              was a very – she is a very happy person, she is very, if I can
              explain, sometimes I am at the office she will just come by
              and –

              Q. Why don’t you focus on what happened that night and just
              tell the jury what happened that night.

              A. Well, I was trying to base a foundation as to why she was
              –

              Q. What was the nature of the conversation?

              A. There was really not a lot of conversation. She is a very
              happy person. She was laughing. She was giggling. Like I
              said, she has a habit of smacking me on the top of the head,
              rubbing the top of my head. She does it all the time. I was
              going to say in the office a lot. So there was some of that
              going on. But then she was pulling at me. So that it what I
              was really referring to.

              As far as when I got in the back, that way she is not a
              distraction because, I mean, it is just her nature, the way she
              is. Then there was a short drive home, so less than a mile, so
              doesn’t take a whole lot of time to get there.

                                            29

Q. So my understanding is you were in the back seat with
[P.L.], she was rubbing your head and giggling, and then
when you got to your house, Mr. Wakefield backed the truck
into the parking spot there?

A. Yes, he backed his truck in.

Q. And he got out of the truck and he walked up to the house
and turned and locked the doors?

A. Yes, he walked into the back door. I think when he got out
of the truck, he must have hit the door locks.

Q. Okay. And how long was it before you recognized that
Mr. Wakefield was gone?

A. It wasn’t very long at all. In fact, I knew that he had
exited the vehicle and I almost immediately knew that
because I heard the doors, the door lock mechanism go down,
so I knew we were locked in the truck at that point.

Q. And what did you do, if anything?

A. Well –

Q. While you were locked inside the truck?

A. Well, I remember telling [P.L.], and I was joking, I said, I
think he locked us in the truck. Of course, she didn’t really
respond to it. I knew I had to find a way to get out. I
couldn’t call him back over. So that is when I reached up to
hit the door locks on the side of the door so I could get us –
we could get out.

Q. How long did it take you from the time that Mr. Wakefield
left the truck to the time that you got out of the house?

A. I would say less than five minutes. It wasn’t very long.

Q. Once you got out of the truck and walked up to the house,
what happened next?

                              30

                                     ....


              To the extent that the Petitioner had specific questions that he believed he

could not ask Mr. Carper given the circuit court’s ruling, the Petitioner should have made

a proffer on the record during trial so that this Court would have opportunity to review

the alleged excluded questions on appeal. Based upon the record before us, however, we

cannot conclude what specifically the Petitioner alleged he could not ask Mrs. Carper

during cross-examination. Accordingly, we find that the Petitioner failed to preserve the

issue, in the context in which he currently presents it, for appellate review. Thus, we

affirm the circuit court’s ruling.



       C. Double Jeopardy

              In his third assignment of error, the Petitioner asserts that the circuit court

violated double jeopardy principles6 by allowing the jury to consider both second degree


       6
         In syllabus point 1 of State v. Myers, 171 W.Va. 277, 298 S.E.2d 813 (1982),
this Court recognized that:

              “The Double Jeopardy Clause in Article III, Section 5 of the
              West Virginia Constitution, provides immunity from further
              prosecution where a court having jurisdiction has acquitted
              the accused. It protects against a second prosecution for the
              same offense after conviction. It also prohibits multiple
              punishments for the same offense.” Syl. pt. 1 of Conner v.
              Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).



                                             31

sexual assault and third degree sexual assault based on the evidence.7 Relying upon State

v. Sayre, 183 W.Va. 376, 395 S.E. 2d 799 (1990) and the United States Supreme Court

ruling in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932),

the circuit court below permitted the jury to deliberate on both second degree and third

degree sexual assault on the basis that P.L. was “physically helpless” (second degree

sexual assault) and also “mentally incapacitated” (third degree sexual assault) because

she was involuntarily intoxicated. In Sayre, this Court affirmed the conviction of the

defendant for both third degree sexual assault based upon the age difference between




      7
         Our second degree sexual assault statute, W. Va. Code § 61-8B-4 (1991),
provides, in pertinent part,

             (a) A person is guilty of sexual assault in the second degree
             when:

                                          . . .


             (2) Such person engages in sexual intercourse or sexual
             intrusion with another person who is physically helpless.

Our third degree sexual assault statute, W. Va. Code § 61-8B-5 (2000), provides, in
pertinent part,

             (a) A person is guilty of sexual assault in the third degree
                 when:
             (1) The	 person engages in sexual intercourse or sexual
                 intrusion with another person who is mentally defective or
                 mentally incapacitated; . . . .



                                           32

Sayre and his victim, and second degree sexual assault based upon forcible physical

compulsion. 183 W.Va. at 380, 395 S.E. 2d at 803.8



               Here, the Petitioner contends that, unlike Sayre, the facts of this case reveal

that P.L. could not move or talk because of her alleged mental incapacitation, not because

of some physical incapacitation. Therefore, the Petitioner asserts that the jury should not

have been asked to deliberate on second degree sexual assault.



               Pursuant to W. Va. Code § 61-8B-1(4), “mentally incapacitated” is defined

as:

               “Mentally incapacitated” means that a person is rendered
               temporarily incapable of appraising or controlling his or her
               conduct as a result of the influence of a controlled or
               intoxicating substance administered to that person without his
               or her consent or as a result of any other act committed upon
               that person without his or her consent.

W.Va. Code § 61-8B-1(4). On the other hand, “physically helpless” is defined as:

               “Physically helpless” means that a person is unconscious or
               for any reason is physically unable to communicate
               unwillingness to an act.

W. Va. Code § 61-8B-1(5).




       8
           Our analysis in Sayre concerned earlier versions of the applicable statutes.


                                              33

              The Petitioner contends that the definition for “mentally incapacitated,” not

“physically helpless,” more closely resembles the alleged facts in the present case; i.e.,

P.L. was rendered temporarily incapacitated and was unable to control her conduct, as a

result of an alleged act committed by the Petitioner - the administration of GHB.

Petitioner argues that the language found in the definition of “mentally incapacitated,”

i.e., “rendered temporarily incapable . . . as a result of the influence of a controlled or

intoxicating substance administered to that person ... or... any other act committed upon

that person.,” clearly indicates that a victim’s temporary incapacitation must have

resulted from the willful actions of the perpetrator of the sexual assault or by another

party who assisted in facilitating the crime.



              Here, the Petitioner argues that the facts relied upon by the State to attempt

to prove second degree sexual assault are merely an extension of those relied upon to

establish third degree sexual assault. The Petitioner avers that second degree sexual

assault is limited to purely physical conditions causing incapacitation and, in that regard,

the Legislature was focused upon pre-existing physical conditions, such as whether the

victim is in a coma, has had a brain injury, head trauma or a stroke, was born with a brain

stem birth defect or that the victim has some form of irreversible paralysis - all more

permanent rather than temporary conditions. For that reason, the Petitioner argues that the

Legislature set a stiffer sentence for sexual assault in the second degree of from ten to




                                                34

twenty-five years, while a finding of a victim being “mentally incapacitated” aligns with

sexual assault in the third degree, carrying a penalty of from one to five years.



              Petitioner is not asserting that charges of both second degree and third

degree sexual assault could never arise from a single sexual act. Rather, he simply argues

that given the particular facts of his case, and in light of legislative intent, the charges of

second degree sexual assault which were brought against him were unfounded. He asserts

that it was therefore a violation of double jeopardy principles for the State and the circuit

court to allow him to be tried, convicted and sentenced on the two counts of second

degree sexual assault, while, at the same time, also trying, convicting and sentencing him

on the two counts of third degree sexual assault.



              Conversely, the State maintains that based upon this Court’s decision in

Sayre and the United States Supreme Court decision in Blockburger, the jury was

properly instructed to consider both second and third degree sexual assault. The State

contends that if the court did, however, err in permitting the jury to deliberate and return

a verdict on all four counts of the indictment, such an error was harmless, in that the court

later exercised its discretion and sentenced the Petitioner to the same sentence which

would have been imposed had he been convicted of only one count of second degree

sexual assault.




                                              35

              As an initial matter, while we recognize that the Petitioner’s sentences for

counts three and four are to be served consecutively to one another (but concurrently with

the sentences in counts one and two), the sentences for counts three and four do not

merely evaporate simply because of the concurrence of the sentences. The separate

convictions, apart from the concurrent sentences, have potential adverse collateral

consequences that may not be ignored. See Ball v. U.S., 470 U.S. 856, 105 S.Ct. 1668

(1985). For example, the presence of four convictions, instead of two, on the record may

delay the Petitioner’s eligibility for parole or result in an increased sentence under a

recidivist statute for a future offense. Id. at 865. Thus, any potential error by the circuit

court on this issue must be substantively evaluated.



              This Court held in syllabus point four of Sayre, 183 W.Va. 376, 395 S.E. 2d

799, that

              “‘[w]here the same act or transaction constitutes a violation of
              two distinct statutory provisions, the test to be applied to
              determine whether there are two offenses or only one is
              whether each provision requires proof of an additional fact
              which the other does not.’ Syl. pt. 8, State v. Zaccagnini, 172
              W.Va. 491, 308 S.E.2d 131 (1983), quoting Blockburger v.
              United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306
              (1932).” Syllabus point 1, State v. Peyatt, 173 W.Va. 317,
              315 S.E.2d 574 (1983).


              In State v. Barnes, 2013 WL 2300946 (May 2013) (memorandum

decision), this Court conducted a double jeopardy analysis evaluating the statutory

provisions of both second and third degree sexual assault, and concluded that each crime,

                                             36

as specifically pled in that case, required proof of an additional fact that the other did not.

We concluded that pursuant to West Virginia Code § 61–8B–4(a)(1), second degree

sexual assault required proof of forcible physical compulsion, which was different than

what is required to establish third degree sexual assault. Id. at *4. Pursuant to West

Virginia Code § 61–8B–5(a)(l), third degree sexual assault required proof that a victim

was mentally incapacitated, which was different from the proof necessary to establish

second degree sexual assault. Id.



              We do not agree with the Petitioner’s analysis of the statutory provisions at

issue. In analyzing the statutory provisions of both second and third degree sexual

assault, we conclude that each crime, as specifically pled in this case, requires proof of an

additional fact that the other does not. Pursuant to W. Va. Code § 61-8B-5(a)(1), second

degree sexual assault requires proof that P.L. was “physically helpless,” (meaning that the

victim was “unconscious or for any reason [was] physically unable to communicate

unwillingness to an act” under W. Va. Code § 61-8B-1(5) (emphasis added)), which is

not required to establish third degree sexual assault. Pursuant to West Virginia Code §

61–8B–5(a)(l), third degree sexual assault requires proof that P.L. was “mentally

incapacitated,” (meaning that she was “rendered temporarily incapable of appraising or

controlling [her] conduct as a result of the influence of a controlled or intoxicating

substance administered to [her] without [her] consent or as a result of any other act

committed upon [her] without [her] consent” under W. Va. Code § 61-8B-1(4) (emphasis


                                              37

added)), which is not required to establish second degree sexual assault. For these

reasons, we conclude that the circuit court’s ruling on this issue should be affirmed.



       D. Juror Misconduct

              In his final assignment of error, Petitioner contends that the circuit court

erred in allowing the bailiff to have a conversation with a juror on February 12, 2014,

about a potential witness. The Petitioner alleges that his constitutional rights under the

Confrontation clause were violated by a conversation between a juror and the bailiff

regarding the juror’s passing knowledge of the identity of a person who did not appear as

a witness. However, Petitioner concedes that he “did not object at the time”.



              The following occurred at trial:

              THE COURT: The bailiff informed me that one of the jurors
              informed him that when the last witness was speaking of
              people, police officers involved in the chain of investigation,
              Officer Sell’s name came up. This juror on our break
              immediately after that witness, informed the bailiff that she
              was aware of an Officer Sell because she works at the Sheetz
              store and an officer by that name apparently comes in the
              store from time to time.

              She apparently indicated to the bailiff she had no independent
              sort of acquaintance or relationship with him, but she was
              aware of an officer by that name who came to the store where
              she was employed.

              I made that known to counsel for both sides. The Prosecutor
              told me that it wasn’t the State’s intention to have that officer
              as a witness.


                                             38

              Does anybody want to further make up the record? Feel free
              both sides.

              MR. KRATOVIL: We don’t intend to call Sergeant Sell as a
              witness in our case.

              THE COURT: Is that still your intention not to call him?

              MS. SIMS: Correct.

              THE COURT: He wouldn’t be a witness.

              MS. SIMS: We don’t intend to call him. I can’t see how we
              could call him in rebuttal to be honest.

              THE COURT: Is there general agreement that it is really not
              an issue?

              MR. KRATOVIL: I think that it is not an issue.

              THE COURT: Okay. All right.


              The State maintains that because the Petitioner did not timely object to the

alleged Confrontation Clause violation, or move for a mistrial, he waived his ability to

raise this issue on appeal. Recently this Court reiterated that the failure to preserve error

constitutes a waiver of that alleged error:

              This Court has recognized that “[w]hen there has been a
              knowing and intentional relinquishment or abandonment of a
              known right, there is no error and the inquiry as to the effect
              of a deviation from the rule of law need not be determined.”
              Syl. pt. 8, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d
              114 (1995). Accord Syl. pt. 4, in part, State v. Lightner, 205
              W.Va. 657, 520 S.E.2d 654 (1999). Similarly, we have stated
              that “[g]enerally the failure to object constitutes a waiver of
              the right to raise the matter on appeal.” State v. Asbury, 187
              W.Va. 87, 91, 15 S.E.2d 891, 895 (1992) (per curiam).


                                              39

Manor Care, Inc. v. Douglas, 234 W.Va. 57, 68, 763 S.E.2d 73, 84 (2014) (emphasis

added).



             Petitioner here neither objected, nor moved for a mistrial. Rather, he

conceded at trial that the conversation between the juror and bailiff - the same

conversation of which he now complains was a violation of the confrontation clause ­

was not an issue. Based upon the Petitioner’s failure to preserve this alleged error, we

decline to now consider this matter on appeal.



                                  IV. CONCLUSION

             Accordingly, for all of the foregoing reasons, we affirm the July 16, 2014

sentencing order entered by the Circuit Court of Jefferson County.



                                                                              Affirmed.




                                           40

