          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    September 2015 Term                       FILED
                                     _______________
                                                                         November 18, 2015
                                                                                released at 3:00 p.m.
                                       No. 15-0205                              RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                     _______________                              OF WEST VIRGINIA



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

            PROSECUTING ATTORNEY OF BERKELEY COUNTY,

                               Petitioner


                                            v.

                    THE HONORABLE GRAY SILVER III,

           JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY,

                        AND DONALD L. BOWERS,

                              Respondents


       ____________________________________________________________

                    ORIGINAL PROCEEDING IN PROHIBITION

                          WRIT GRANTED AS MOULDED

       ____________________________________________________________

                            Submitted: September 15, 2015
                              Filed: November 18, 2015

Timothy D. Helman, Esq.                          B. Craig Manford, Esq.
Assistant Prosecuting Attorney of                Martinsburg, West Virginia
 Berkeley County                                 Counsel for the Respondent
Martinsburg, West Virginia
Counsel for the Petitioner


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


              1.     “‘In the absence of compelling evidence of irremediable prejudice, a

writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter

of evidentiary admissibility.’ Syllabus Point 3, State ex rel. Shelton v. Burnside, 212 W.

Va. 514, 575 S.E.2d 124 (2002).” Syl. pt. 3, River Riders, Inc. v. Steptoe, 223 W. Va.

240, 672 S.E.2d 376 (2008).



              2.     “Where the State claims that the trial court abused its legitimate

powers, the State must demonstrate that the court’s action was so flagrant that it was

deprived of its right to prosecute the case or deprived of a valid conviction.” Syl. pt. 2, in

part, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).




                                              i
Benjamin, Justice:

              In this original proceeding, the Prosecuting Attorney of Berkeley County,

West Virginia, petitions for extraordinary relief in the underlying criminal matter,

seeking to prohibit the circuit court from enforcing its rulings in limine pertaining to

certain evidence the prosecution desired to introduce at the upcoming trial of Donald

Bowers for alleged sex crimes against an eleven-year-old girl.1               The prosecutor

challenges a pair of orders issued by the circuit court, insofar as the effect of such orders

would withhold from evidence a two-page entry in the child’s diary and, as to the entries

deemed admissible, prevent the jury from examining the physical diary itself.              We

conclude that the prosecutor is entitled to relief in prohibition regarding the circuit court’s

manifestly erroneous ruling that excluded the substantive two-page entry at issue;

however, we do not deem the circuit court’s ruling relating to the manner in which that

evidence and the remainder of the diary is to be presented to the jury to be manifestly in

error. We therefore grant the requested writ as moulded.


       1
         Consistently with our long-standing practice, we endeavor to protect the identity
of the juvenile in this sensitive matter by referring to her and her family exclusively in a
generic fashion. See, e.g., Matter of Jonathan P., 182 W. Va. 302, 303 n.1, 387 S.E.2d
537, 538 n.1 (1989). Moreover, with respect to the first-hand anecdotal accounts of her
encounters with the defendant-respondent that constitute the challenged evidence at the
heart of this extraordinary proceeding, we have, where indicated in brackets, either
replaced the juvenile’s use of explicit language and graphic descriptions with asterisks or
have rephrased or more generically characterized it. See State v. Wood, 194 W. Va. 525,
530 n.2, 460 S.E.2d 771, 776 n.2 (1995) (noting that although the record in that appeal
“describe[d] the sexual acts in graphic detail,” it was unnecessary to recount them
verbatim).


                                              1

                I. FACTUAL AND PROCEDURAL BACKGROUND


              The child’s mother suspected unlawful sexual contact between her daughter

and Bowers, their middle-aged neighbor.           On October 11, 2013, she reported her

suspicions to the police. This report led to an interview of her daughter at the local child

advocacy center. During this interview, the child related that she had engaged in two

sexual encounters with Bowers, known by his CB radio handle, “Jackal.” The first

alleged encounter occurred in June or July 2012 in his garage, a local gathering place

stocked with numerous couches and chairs, a pool table, band gear, and radio equipment.

At that time, the child was eleven years old. Bowers, then forty-seven, allegedly touched

the child’s breasts and vagina and she performed oral sex on him. The second instance

was on July 21, 2012, at a nearby pond, where Bowers allegedly penetrated the child’s

vagina with his finger and the two performed oral sex on each other.



              In the course of their investigation, the police obtained the child’s diary, a

bright pink, petite, stylized volume, of about forty pages in which she had drawn

illustrations and recorded her thoughts intermittently from approximately June 20, 2012,

through May 20, 2013. A general review of the diary conveys the impression that the

child harbored an immature emotional and physical attraction to Bowers, which he

helped to cultivate. The diary describes the child’s recurrent efforts to spend time in the

presence of Bowers, against the wishes and commands of her mother and her mother’s


                                             2

live-in boyfriend. Pages 24 and 25 of the diary, containing an entry dated September 22,

2012, illustrate the child’s emotional state, which Bowers allegedly recognized and

encouraged:

                When we got back Jackal was still up . . . . Then I went
                inside and took the dog out. After Jackal got done peeing, he
                walked up to me and I thought “Oh my god, he is getting
                sooooo close to me” and he said “Oh my god I’m so proud of
                DJ!”, so I said “OK, I guess so, I don’t know who you are
                talking about!”, so Jackal said “[local racer] DJ Myers almost
                won against the greatest NASCAR driver in the world!”, and
                so he walked to the doorway of the Garage and said “I LOVE
                YOU [the child’s nickname] AND I WILL TALK TO YOU
                TOMORROW!”, therefore I thought “HOLY **** [expletive
                deleted 2] HE STILL HAS FEELINGS FOR ME!!!” Wow!

The child continued the excluded entry on page 25, recalling her alleged sexual

encounters with Bowers months earlier:

                Seriously wow, I still remember the night that we “did it,” not
                as in him [engaging in sexual intercourse 3]. Jackal even said
                that himself. So it was [non-intercourse sexual relations 4] or
                just that most of the time. [Here the child graphically
                describes the sexual acts.5] But I love him too and that’s all
                there is to it. Good night for now but not to sleep.




      2
          See supra footnote 1.
      3
          Id.
      4
          Id.
      5
          Id.


                                              3

Presented with the child’s account and the entries contained in her diary, the grand jury

returned an indictment against Bowers on February 20, 2014, charging him with four

counts of first-degree sexual assault and two counts of first-degree sexual abuse.6



              On October 22, 2014, the assistant prosecutor filed a motion in limine to

obtain an advance ruling on the diary’s admissibility. A hearing on this motion was

conducted on December 8, 2014, whereupon the circuit court issued an initial ruling on

January 12, 2015, which was superseded for purposes of clarification by its “Amended

Order Admitting in Part Diary of Child-Victim” (the “Amended Order”), entered on

February 2, 2015. Therein, the circuit court examined each diary entry for inadmissible

hearsay pursuant to syllabus point 10 of our decision in State v. Kaufman, 227 W. Va.

537, 711 S.E.2d 607 (2011) (“When ruling upon the admission of a narrative [under the

evidentiary rules pertaining to hearsay], a trial court must break down the narrative and

determine the separate admissibility of each separate declaration or remark.”).




       6
         See W. Va. Code § 61-8B-3(a)(2) (2006) (providing that a person fourteen or
older commits sexual assault in the first degree when he or she “engages in sexual
intercourse or sexual intrusion with another person,” not his or her spouse, “who is
younger than twelve years old”); § 61-8B-7(a)(3) (2006) (with regard to the same
constraints of age and marital status, describing sexual abuse in the first degree as
subjecting a person to “sexual contact,” the definition of which is found at section 61-8B­
1(6) of the West Virginia Code).



                                             4

                Referring to the diary evidence, the circuit court characterized the child’s

emotional condition as “the story of the case,” noting that the prosecution’s “entire theory

of the case is that [Bowers] ‘groomed’ the child, made her to feel as if she was in love

with him, then used this influence to get her to perform sexual acts.” The circuit court

concluded that all of the statements within the diary were admissible under the hearsay

rules, either as a hearsay exception pertaining to the child’s then-existing state of mind or

emotional condition,7 or as an admission by Bowers constituting an exclusion from

hearsay,8 or as non-hearsay lending context to the narrative as a whole, not offered to

prove the truth of the particular matter asserted.9 In this extraordinary proceeding,

Bowers has not asserted error with respect to the circuit court’s hearsay rulings.



                The circuit court did, however, exclude the 2-page entry in question

pursuant to West Virginia Rule of Evidence 403, reasoning that the statements therein,

though relevant to the prosecution’s case and probative of the offenses of which Bowers

is charged, present on balance an unacceptable risk of improperly inflaming the jury.10 In


       7
           See W. Va. R. Evid. 803(3).

       8
           See id. 801(d)(2)(A).

       9
           See id. 801(c)(2).

       10
         See W. Va. R. Evid. 403 (instructing that relevant evidence may nonetheless be

excluded “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice”).


                                              5

its exclusion ruling, the circuit court specifically acknowledged the diary generally to be

“probably the most probative piece of evidence on the Defendant’s mode of operation.”

Nonetheless, the circuit court determined that the danger of unfair prejudice posed by

admitting the entry on pages 24 and 25 substantially outweighed its worth as evidence.

The circuit court declared the balance of the diary admissible, except that it excised, on

relevancy grounds, a four-page portion in which the predominant theme was the child’s

frustration with discipline imposed by her mother’s boyfriend. Furthermore, instead of

the jury being provided the diary itself, the circuit court ruled that photocopies of the

handwritten entries and illustrations would be substituted, together with a typewritten

transcription of the text. In rendering its substitution ruling, the circuit court explained

that the diary’s “diminutive size, pink color[] and childlike simplicity could well mislead

the jury to have improper feelings of sympathy and empathy for the child-victim that

could work extremely unfair prejudice toward the Defendant in this case.” On March 9,

2015, the prosecutor filed the instant, two-pronged petition, challenging the Amended

Order’s exclusion ruling together with its substitution ruling.



                             II. STANDARD OF REVIEW

              We will grant a petition seeking a writ of prohibition “‘only to restrain inferior

courts from proceedings in causes over which they have no jurisdiction, or, in which, having

jurisdiction, they are exceeding their legitimate powers.’” Syl. pt. 3, in part, State ex rel.

Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (quoting syl. pt. 1, in part, Crawford

v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953)). A petition for a writ of prohibition “‘may
                                            6

not be used as a substitute for a petition for appeal or certiorari.’” Id. In Hoover, we set

forth five factors to assist us in determining whether a lower tribunal has exceeded its

legitimate authority such that we should exercise our discretion to grant extraordinary relief

in prohibition:

                  (1) whether the party seeking the writ has no other adequate
                  means, such as direct appeal, to obtain the desired relief; (2)
                  whether the petitioner will be damaged or prejudiced in a way
                  that is not correctable on appeal; (3) whether the lower
                  tribunal’s order is clearly erroneous as a matter of law; (4)
                  whether the lower tribunal’s order is an oft repeated error or
                  manifests persistent disregard for either procedural or
                  substantive law; and (5) whether the lower tribunal’s order
                  raises new and important problems or issues of law of first
                  impression. These factors are general guidelines that serve as a
                  useful starting point for determining whether a discretionary
                  writ of prohibition should issue. Although all five factors need
                  not be satisfied, it is clear that the third factor, the existence of
                  clear error as a matter of law, should be given substantial
                  weight.

Syl. pt. 4, in part, id.


                                          III. ANALYSIS

                  We acknowledge and reaffirm at the outset our admonition that “‘[i]n the

absence of compelling evidence of irremediable prejudice, a writ of prohibition will not

lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary

admissibility.’ Syllabus Point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575

S.E.2d 124 (2002).” Syl. pt. 3, River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d

376 (2008). The standard is rigorous, premised on the familiar precept that evidentiary

rulings are generally left to the trial court’s sound discretion and are typically outside the


                                                   7

scope of an extraordinary proceeding. See id., 223 W. Va. at 248, 672 S.E.2d at 384 (“‘A

writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.’”

(quoting syl. pt. 4, Shelton, 212 W. Va. 514, 575 S.E.2d 124)). The requisite prejudice,

as contemplated by the third Hoover factor, must therefore be attributable to a clear error

of law beyond an abuse of discretion, encompassing the rarest of misapprehensions in the

admission or exclusion of evidence that can only be characterized as outliers. See id.,

223 W. Va. at 249, 672 S.E.2d at 385 (noting that we have, “on limited occasions,

considered challenges from evidentiary rulings in unique circumstances where the matter

at issue rose to a level of considerable importance and compelling urgency”).



              The requirement that the prejudice be “irremediable” recalls the first and

second Hoover factors, which implicate the availability and adequacy of alternative

means to obtain relief. On those infrequent occasions when we have intervened in an

ongoing proceeding, each such case has satisfied the dual Hoover criteria that the

petitioner is on the verge of being irrevocably damaged by an interlocutory ruling and

that such damage will survive an eventual appeal or anything else short of an

extraordinary remedy. See River Riders, 223 W. Va. at 249 n.13, 672 S.E.2d at 385 n.13

(collecting cases and observing that extraordinary relief has been granted in instances

where trial court has refused to authorize funds for criminal defense expert, has

disqualified prosecutor or private lawyer, has refused to recognize collateral estoppel bar

to relitigation, or has imposed unlawful prior restraint against newspaper). In River


                                              8

Riders itself, we issued a writ prohibiting the circuit court from applying federal maritime

law to a tort action stemming from a whitewater rafting accident, inasmuch as the rulings

at issue “serve[d] to have a significant and lasting negative impact on the question of

liability for an important segment of business within this State.” Id. at 249, 672 S.E.2d at

385.



              The danger of irremediable prejudice from excluded evidence can be

palpable in a criminal proceeding, because an acquittal will prevent the defendant from

being prosecuted a second time for the same offense, in accordance with federal and state

constitutional proscriptions against double jeopardy. See State v. Adkins, 170 W. Va. 46,

52, 289 S.E.2d 720, 725 (1982) (concluding that criminal retrial is barred “after a

judgment of acquittal is entered upon a determination of the merits”); W. Va. Code § 61­

11-13 (1923) (“A person acquitted by the jury upon the facts and merits on a former trial

may plead such acquittal in bar of a second prosecution for the same offense,

notwithstanding any defect in the form or substance of the indictment or accusation on

which he was acquitted.”).    When a jury determines that the prosecution has failed to

meet the requisite proof of guilt beyond a reasonable doubt, it has essentially found a

defect in the substance of the accusation. It matters not, for double jeopardy purposes,

that the defect may have been caused by the trial court’s errant exclusion of highly

probative evidence. See State ex rel. Kincaid v. Spillers, 165 W. Va. 380, 385, 268

S.E.2d 137, 141 (1980) (emphasizing that “after a judgment acquitting a defendant, no


                                             9

retrial on the same offense is permissible no matter how erroneous the acquittal might

have been.” (citation omitted)).



              Thus, in an ongoing criminal proceeding, the interests of justice behoove us

to consider, and if appropriate, correct through extraordinary means a trial court’s error of

law that improperly imperils the prosecution’s lone opportunity for a conviction. That is,

“where the State claims that the trial court abused its legitimate powers, the State must

demonstrate that the court’s action was so flagrant that it was deprived of its right to

prosecute the case or deprived of a valid conviction.” Syl. pt. 2, in part, State ex rel. Sims

v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).             The exclusion ruling here is

emblematic of just the sort of prejudicial error contemplated in Sims.             Here, the

importance of the excluded entry helps to reveal the child’s emotional condition—“the

story of the case”—as the circuit court put it. The importance of this entry to the State is

unquestioned insofar as it represents an integral part of the diary, which the court readily

acknowledged as being “probably the most probative piece of evidence” in the

prosecution’s efforts to portray Bowers as a sexual predator.



              The circuit court’s candid characterizations fall short, we believe, of fully

appreciating the entry’s probative value. Trials involving sexual offenses often turn on

the jury’s assessment of the relative credibility of the child and the accused, particularly

where physical evidence is lacking. See State v. Edward Charles L., 183 W. Va. 641,


                                             10

661, 398 S.E.2d 123, 143 (1990) (noting that sex-offense prosecutions involving children

frequently devolve into “credibility contest[s]” after the defendant denies the child’s

allegations). It is to be anticipated that the child will testify in this criminal prosecution

regarding the two instances of sexual contact alleged between her and Bowers. Her diary

entries provide the jury an important means by which it may assess the child’s

credibility.11



                 Apart from its evidentiary importance as affirmative proof of the offenses

charged, the excluded entry also possesses residual value insofar as it may prevent the

jury from being misled by the diary’s account of a conversation between Bowers and the

child on September 27, 2012:

                 [Jackal] said “Just hang in there, girl, and don’t mention me
                 to your dad, until you get old enough to . . . you know. But
                 when you are old enough, we’ll go out together. And I felt
                 like just hauling off and running full speed to him and
                 hugging and kissing him to no end! Well. Now I can look
                 forward to being eighteen! Well, seeing as I’m only 11, I still




       11
          The child’s testimony cannot be predicted with certainty. On page 13 of her
diary, written on July 22, 2012, the day following the alleged pond encounter, the child
resolves to “devote my life to . . . GET JACKAL OUT OF PRISON,” in anxious reaction
to her mother having called the police upon discovering that her daughter was missing
around midnight the evening before. Nonetheless, at her interview with the child
advocate on October 18, 2013, the child related that Bowers had compelled her to engage
in sexual contact and remain quiet about it under threat of death or bodily harm to her and
her family. We believe that all of the relevant diary entries will be of great importance to
the jury as it assesses the testimony of the child at the trial of this matter.


                                               11

                have 7 more years to go. Oh boy, I can’t wait to ****
                [expletive deleted 12] him, I want to sooooo badly!

The latter portion of this entry on pages 31–32 of the diary is written in the future tense,

and it is arguably plausible to interpret the child’s choice of verb (redacted above) in the

final sentence as a generic reference to sexual activity. Taken out of context, the entry

might lead the jury to reject the indictment’s allegations of sexual contact between

Bowers and the child occurring days and months prior. Indeed, without elucidation, the

jury could conclude that Bowers intended nothing more nefarious toward the child than

to eventually “go out together.” When the above passage is viewed in light of the

excluded entry’s explicit account of the alleged previous encounters, however, the

indictment’s charges of sexual assault by intrusion, as opposed to intercourse, may

provide the jury useful perspective on the allegations against Bowers.



                Although we are satisfied that the probative value of the excluded entry is

significant, the Rule 403 balancing test yet requires us, for comparison purposes, to

analyze the potential that its consideration by the jury will unfairly prejudice the defense.

The circuit court’s discussion in this regard was rather sparse, obliquely referring to the

entry’s descriptions as “graphic” and “offensive,” and more specifically noting its

“explicit references to sexual acts” that would “undoubtedly inflame and incite the

prejudices of the jury.”

       12
            See supra footnote 1.


                                             12

              We agree that the excluded entry is expressed in graphic and explicit terms,

but it is error to summarily reject its suitability as evidence based solely on the sensitive

subject matter and the child’s choice of language.          The conduct alleged to have

constituted the charged offenses is appalling by any measure, and while the child’s crude

description may lend an air of realism to the account, it does not do so unfairly. See State

v. Potter, 197 W. Va. 734, 751, 478 S.E.2d 742, 759 (1996) (“All evidence is meant to be

prejudicial; it is only unfair prejudice which must be avoided.”). The jury cannot help

but appreciate the gravity of the dire accusations against Bowers, regardless of the heed it

pays the entry at issue. Moreover, the child’s diary in this case—if the accounts therein

are believed by the jury—directly establishes Bowers’ commission of one or more of the

crimes charged, and no part of the diary is more probative in that regard than the

excluded entry. Viewed from that perspective, the circuit court’s error of law is manifest

and the prosecutor’s entitlement to prohibition is apparent.       The potential of unfair

prejudice to the defense through the admission of the entry excluded by the circuit court

falls far short of outweighing its probative value.



              We harbor no similar concerns, however, with respect to the circuit court’s

substitution ruling. Regardless of whether the jury views the diary itself or exact copies

of its pages accompanied by a transcript, the substance of the message thus conveyed will

be identical. The determination to withhold the physical volume based on the circuit


                                             13

court’s perception that the jury would be illegitimately influenced by its childlike

attributes was squarely within its discretion as an evidentiary gatekeeper. We therefore

deny that aspect of the prosecutor’s petition for extraordinary relief.



                                   IV. CONCLUSION

              In accordance with the foregoing, we grant the petition for extraordinary

relief filed by the Prosecuting Attorney of Berkeley County insofar as the circuit court is

prohibited from enforcing that aspect of the Amended Order excluding from evidence

pages 24 and 25 of the child’s diary. We deny the petition, however, insofar as it seeks to

prohibit the circuit court from enforcing that aspect of the Amended Order withholding

from the jury’s consideration the physical volume itself.


                                                                 Writ granted as moulded.




                                             14

