                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent                                                 FILED 

                                                                        November 5, 2018
vs. No. 17-0395 (Cabell County No. 15-F-468)                                 released at 3:00 p.m.
                                                                         EDYTHE NASH GAISER, CLERK
                                                                         SUPREME COURT OF APPEALS
DANIEL BAUMGARDNER,                                                           OF WEST VIRGINIA
Defendant Below, Petitioner




                              MEMORANDUM DECISION

       Petitioner Daniel Baumgardner, by counsel Matthew Brummond, appeals from an
order filed on March 29, 2017, by the Circuit Court of Cabell County. That order
sentenced the Petitioner to five to twenty-five years of imprisonment,1 upon his
conviction by a jury of first degree sexual abuse of a minor. In this appeal, the Petitioner
argues that the trial court improperly allowed the State, represented by Patrick Morrisey,
Attorney General, Caleb A. Ellis, Assistant Attorney General, and Gordon L. Mowen, II,
Assistant Attorney General, to call an undisclosed rebuttal witness.

       This Court has considered the parties’ briefs, oral arguments, and the record on
appeal. Upon consideration of the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons, a memorandum decision
affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.


       The record shows that in August of 2015, the victim, J.B.2 was visiting the home
of her grandfather.3 The Petitioner, who was a neighbor of J.B.’s grandfather, was also


       1
           The Petitioner’s sentence was to be served on home confinement.
       2
         It is our custom to use the initial of a victim in a sensitive case like this. See,
e.g., In re: S.H., 237 W. Va 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016). See also
W. Va. R. App. P. 40 (restricting use of personal identifiers in cases involving children).
                                             1

visiting the home. At some point during the evening hours, J.B. went outside alone and
sat in a chair that was inside of a tent. J.B. was waiting on her younger sister to come
outside so that they could play the game of tag. The Petitioner came outside and walked
to the tent. While inside the tent, the Petitioner touched J.B. in her vaginal area. J.B.
described the encounter during the trial as follows:

              Q. Okay. Did his hand go under your clothes or was it on top of your
      clothes?
              A. On top.
              Q. On top of your clothes. Okay. When Daniel did that to you did he
      say anything?
              A. Yes.
              Q. What did he say?
              A. He said when people was coming he was going to stop.
              Q. When somebody was coming he was going to stop. Okay. Did he
      stop at some time?
              A. Yes.
              Q. Okay. Did somebody come?
              A. Yes.
              Q. Did he say anything else to you –
              A. No.

      Several weeks after the incident, J.B. was in a car with her mother when she
decided to inform her of the Petitioner’s conduct. J.B.’s mother testified as follows:

             Q. And when she said to you . . . she said, “Mommy” – she was
      scared. She didn’t want to get in trouble, what did she tell you? Or what did
      you say to her? What did you say?
             A. I told her that she wasn’t going to be in – I could tell something
      was wrong. I knew something wasn’t right. And I told her nothing – she
      wasn’t going to be in no trouble, to tell Mommy what was going on. And so
      I stopped the car. I pulled over and that is when I started talking to her. She
      told me that Daniel had touched her no-no spot at Paw-Paw’s.
             Q. Now, her no-no spot. Okay? Are you familiar with what that
      means for her – her no-no spot?
             A. Yes. I taught her that.



      3
         J.B.’s mother and younger sister were also visiting the home. J.B. was five years
old at that time.
                                            2
             Q. You taught her what her no-no spot is? And what did you tell –
       what area – when you said “no-no spot” what were you telling her was her
       no-no spot?
             A. Her private area in between her legs.
             Q. Her vaginal area?
             A. Yes, correct.

J.B.’s mother reported the incident to the police. After an investigation was completed,
the Petitioner was indicted by a grand jury in October of 2015, on one count of first
degree sexual abuse.

       A jury trial was held in December of 2016. The State called J.B. and three other
witnesses during its case-in-chief. The Petitioner testified and called an expert witness
during his case-in-chief. The Petitioner denied touching J.B. and informed the jury that
after he was indicted, he continued to socialize with J.B’s grandfather. Specifically, the
Petitioner testified that, after he was indicted, he and J.B.’s grandfather “just sat around,
watched TV, drink a few beers, or sat outside.”

        The State thereafter called J.B.’s grandfather, as a rebuttal witness, to testify about
his relationship with the Petitioner after he was indicted. The Petitioner objected on the
limited ground that the grandfather was not named “on a witness list.” The trial court
overruled the objection. J.B.’s grandfather testified that he had no relationship with the
Petitioner after the Petitioner was indicted. The jury ultimately convicted the Petitioner of
first degree sexual abuse. He was sentenced to five to twenty-five years imprisonment to
be served on home confinement. This appeal followed.

        The sole issue presented in this case is whether the trial court committed error
when it permitted the State to call an undisclosed rebuttal witness. We have held that
“[t]he admissibility of evidence as rebuttal is within the sound discretion of the trial
court, and the exercise of such discretion does not constitute ground for reversal unless it
is prejudicial to the defendant.” Syl. pt. 1, State v. Dietz, 182 W. Va. 544, 390 S.E.2d 15
(1990) (internal quotations and citations omitted). It has been held that “[r]ebuttal
evidence is based on fairness. When the defendant brings out new matters, fairness
dictates that the [prosecution] be given a reasonable opportunity to rebut the new
evidence, since the [prosecution] cannot be expected to anticipate the defendant’s case.”
1 Louis J. Palmer, Jr., et al., Handbook on Evidence for West Virginia Lawyers,
§ 611.03[2][d] (6th ed. 2015). See also Syl. pt. 2, Dietz, 182 W.Va. 544, 390 S.E.2d 15
(“Where a criminal defendant’s witness on direct examination raises a material matter,
and on cross-examination testifies adversely to the prosecution, it is proper for the trial
court to allow the prosecution to present rebuttal evidence as to such matter.”).


                                              3

        In this appeal, the Petitioner contends that “the State should have anticipated
calling the grandfather for rebuttal, and, therefore, the State should have disclosed him as
a witness.” In support of this argument, the Petitioner cites to the decision in State v.
Smith, 220 W. Va. 565, 648 S.E.2d 71 (2007). In Smith, the defendant was convicted of
aggravated robbery and sentenced to imprisonment for forty years. One of the issues
raised on appeal involved the State’s use of a rebuttal witness who was not disclosed until
the trial. Relying upon language from the decision in State v. Roy, 194 W. Va. 276, 460
S.E.2d 277 (1995), the opinion in Smith “noted that ‘even rebuttal witnesses should be
disclosed when the State has a reasonable anticipation that they will be used during trial.’
194 W. Va. at 286-87, 460 S.E.2d at 287-88.” Smith, 220 W. Va. at 569, 648 S.E.2d at
75. The opinion in Smith found that the State’s failure to disclose the rebuttal witness
prior to trial was reversible error for several reasons. First, the opinion found that the
rebuttal witness could have been called in the State’s case-in-chief because he was a co-
defendant. Second, the opinion found that the rebuttal witness had previously given the
State exculpatory evidence that was never disclosed to the defendant. Third, the opinion
found that the rebuttal witness had a pending plea agreement with the State.

        The facts of the instant case are distinguishable from the facts in Smith. First, there
was no reason for the State to call J.B.’s grandfather during its case-in-chief, because he
had no substantive, non-redundant testimony regarding the facts of the crime.4 Second,
the Petitioner’s testimony that he continued to socialize with the grandfather subsequent
to his indictment was an attempt to make the jury believe that the grandfather thought
Petitioner was innocent. Therefore, Petitioner’s testimony made the grandfather a
necessary witness. Third, the State could not have reasonably anticipated calling the
grandfather as a rebuttal witness. There was no evidence that the State was aware, prior
to trial, that the Petitioner was going to testify falsely about his relationship with the
grandfather after the indictment. Consequently, we find no error in the trial court’s ruling
that permitted the State to call the grandfather as a rebuttal witness.


       The Petitioner also contends that he was prejudiced by the grandfather’s testimony
because the grandfather attempted to inform the jury of another improper incident
between the Petitioner and the victim. During direct examination of J.B.’s grandfather by
the State, the following exchange occurred:

       4
         The only relevant testimony that the grandfather could provide during the State’s
case-in-chief was the fact that the Petitioner was at his home at the time of the incident
and that a tent was on his property. The grandfather’s testimony on this matter would
have been redundant, because the victim and her mother provided the jury with that
information. Further, the Petitioner did not dispute that he was at the grandfather’s home
at the time of the incident.
                                              4

              Q. Okay. Were you aware of the charge in this case when it came
       out when he got charged?
              A. Yes, I do remember. I remember that. But the date, I couldn’t tell
       you exactly the date.
              Q. After that – he was charged after this came out, did you have any
       type of contact with Mr. Baumgardner?
              A. No.
              Q. Did you have him coming over to your house –
              A. No.
              Q. – or go over to his house at all?
              A. No.
              Q. Socializing?
              A. I wouldn’t even speak to him.


During cross-examination of J.B.’s grandfather by defense counsel, the following
exchange occurred:

              Q. Did you socialize?
              A. At that point I didn’t have nothing to do with the boy.
              Q. So did you accuse him of touching [J.B.]?
              A. I didn’t accuse him of anything, but I tell you one thing I did
       catch him do. I was coming out of the kitchen with the door open and he
       had my granddaughter in his lap and he had his hand –


The Court thereafter stopped further testimony by J.B.’s grandfather. The Petitioner
objected on the ground that the testimony was “case-in-chief kind of evidence,” and
moved for a mistrial on the grounds that he was not made aware of the grandfather’s
testimony before trial. The circuit court denied the motion for mistrial.

       After a careful review of the State’s questioning of J.B.’s grandfather, we find that
the Petitioner invited the error complained of on appeal. The State did not ask the
grandfather if he had accused the Petitioner of assaulting J.B. The State’s questioning
was short and limited to the issue of whether the grandfather maintained a relationship
with the Petitioner after the indictment was returned. It was the defense counsel who
strayed beyond the limited questions by the State and asked the grandfather if he had
accused the Petitioner of assaulting J.B. Defense counsel’s question opened the door for
the inadmissible testimony that is now being complained of on appeal. Our cases have
been quite clear in holding that “[a] judgment will not be reversed for any error in the

                                             5

record introduced by or invited by the party asking for the reversal.” Syl. pt. 21, State v.
Riley, 151 W. Va. 364, 151 S.E.2d 308 (1966), overruled on other grounds by Proudfoot
v. Dan’s Marine Serv., Inc., 210 W. Va. 498, 558 S.E.2d 298 (2001). This Court
explained the concept of “invited error” in State v. Crabtree, 198 W. Va. 620, 482 S.E.2d
605 (1996), as follows:

                     “Invited error” is a cardinal rule of appellate review applied
              to a wide range of conduct. It is a branch of the doctrine of waiver
              which prevents a party from inducing an inappropriate or erroneous
              response and then later seeking to profit from that error. The idea of
              invited error is not to make the evidence admissible but to protect
              principles underlying notions of judicial economy and integrity by
              allocating appropriate responsibility for the inducement of error.
              Having induced an error, a party in a normal case may not at a later
              stage of the trial use the error to set aside its immediate and adverse
              consequences.


Crabtree, 198 W. Va. at 627, 482 S.E.2d at 612. See also Syl. pt. 2, State v. Bowman, 155
W. Va. 562, 184 S.E.2d 314 (1971) (“An appellant or plaintiff in error will not be
permitted to complain of error in the admission of evidence which he offered or elicited,
and this is true even of a defendant in a criminal case.”).5 Insofar as the Petitioner
opened the door to the inadmissible testimony by the grandfather, he cannot obtain relief
from an error that he caused by going beyond the limited scope of the State’s rebuttal.


       In view of the foregoing, we affirm.

                                                                                  Affirmed.

       5
          There is an exception to the invited error doctrine. We have recognized that the
doctrine should not be applied when its application would result in a manifest injustice,
or where it “‘is necessary to preserve the integrity of the judicial process or to prevent a
miscarriage of justice.’” Crabtree, 198 W. Va. at 628, 482 S.E.2d at 613 (quoting Wilson
v. Lindler, 995 F.2d 1256, 1262 (4th Cir. 1993)). The facts in this case clearly
demonstrate that the exception to the invited error doctrine does not apply. See 1 Palmer,
et al., Handbook on Evidence, § 34 (“Whether or not the circumstances of a particular
case justify deviation from the normal rule is largely to the discretion of the appellate
court.”).


                                              6

ISSUED: November 5, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell, sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins


Justice Allen H. Loughry II, suspended and therefore not participating.




                                            7

