                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 



Jason C. Anderson,
Petitioner Below, Petitioner                                                         FILED
                                                                                  June 8, 2018
vs) No. 17-0568 (Marion County15-C-215)                                        EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Karen Pszczolkowski, Warden,
Northern Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Jason C. Anderson, by counsel Jason Wingfield, appeals the June 7, 2017,
order of the Circuit Court of Marion County that denied his petition for post-conviction habeas
corpus relief. Respondent Karen Pszczolkowski, Warden, Northern Correctional Center, by
counsel, Robert L. Hogan, filed a response in support of the habeas court’s order. On appeal,
petitioner argues that the habeas court abused its discretion in failing to find (1) that certain
evidence entered at trial was evidence of “bad acts” under Rule 404(b) of the West Virginia
Rules of Evidence, and (2) that the trial court denied petitioner’s constitutional rights by refusing
to employ the requisite protections for the admission of the Rule 404(b) evidence.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the 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.

        On June 23, 2007, 9-1-1 dispatched emergency medical personnel to petitioner and his
girlfriend’s residence for a medical crisis involving the couple’s twelve-week-old infant. On
arrival, the emergency personnel found a severely malnourished infant, who appeared to be
deceased, on a urine soaked mattress. The infant had lesions on his body, a rotting finger, severe
diaper rash, and injuries indicating he had been struck with a heavy object. The emergency
personnel took the infant to the hospital in an ambulance; however, neither petitioner nor his
girlfriend, Jennifer Meacham, asked to ride with the infant, nor did they go to the hospital. At the
hospital, the infant was pronounced dead.

       In October 1, 2007, a grand jury indicted petitioner for
       murder of a child by a parent, guardian, or custodian by maliciously and
       intentionally and/or by knowingly allowing another person to maliciously and
       intentionally cause the death of a child under his or her care, custody or control by
       failing or refusing to supply such child with necessary food, clothing, shelter, or
       medical care . . . in violation of West Virginia Code § 61-8D-2(a) and -2(b).
                                                 1
The trial court appointed Harry Montoro and Katica Rible as petitioner’s counsel.1

       Petitioner’s four-day trial commenced on April 7, 2010. Dr. Zia Sabel, Deputy Chief
Medical Examiner for the State of West Virginia, testified that the cause of the infant’s death
was severe caretaker maltreatment-negligence. The State also called Ms. Meacham2 who,
according to the facts set forth in petitioner’s appeal of his underlying conviction, testified that

       [petitioner] was extremely controlling of her, that he had been abusive towards
       her, that he would not let her go anywhere unless he accompanied her, and that he
       became upset when he learned that she was pregnant and accused her of cheating
       on him. After their baby was born, the [petitioner] disavowed being the baby’s
       biological father and told her that the baby was not his responsibility. [Petitioner]
       also ordered his grandfather, Denzil Anderson, to take care of the baby
       notwithstanding that Mr. Anderson was elderly, legally blind and in poor health.
       Afterwards, [petitioner] placed the baby’s crib in Mr. Anderson’s bedroom.

               Ms. Meacham admitted that the baby’s hygiene was not properly
       maintained, and that the baby would sometimes be left in the same diaper for days
       at a time. She related that [petitioner] would not permit her to change the baby’s
       diaper, and when she did try to care for the baby, [petitioner] would “grab [her]
       by [her] arm and throw [her] back on the bed and tell [her], no, you’re not going.”
       Ms. Meacham admitted that both she and [petitioner] knew that the baby was
       covered with urine and feces, and that the foam pad in his crib was soaked with
       urine.

               Ms. Meacham also admitted that she and [petitioner] did not properly feed
       the baby and that there were occasions when they did not feed him for two or
       three days at a time. Ms. Meacham did offer, however, that occasionally
       [petitioner] would prop a bottle on a blanket so the baby could feed himself.

               Ms. Meacham testified that she wanted to take the baby to a doctor, but
       that [petitioner] refused and that she was afraid to disobey him because of his
       abusive behavior. One example of [petitioner’s] abusive behavior was that when
       the baby would cry, [petitioner] would become angry, that “[h]e would shake the
       crib so hard that it would scare [the baby] and make him scream louder. Or he
       would hit him.” When asked to describe how he hit the baby, Ms. Meacham
       stated “[s]ometimes fist, sometimes open hand.”




       1
         The trial court appointed other counsel who withdrew. Ultimately, Mr. Montoro and
Ms. Rible represented petitioner at trial.
       2
          Prior to petitioner’s trial, Ms. Meacham entered a guilty plea to child neglect resulting
in death for which she was sentenced to three to fifteen years in prison.
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                When asked about the [Child Protective Services’] visits, Ms. Meacham
       testified that both she and [petitioner] tried to either avoid the [Child Protective
       Services’] workers or would wrap the baby in a blanket to prevent the [Child
       Protective Services’] workers from seeing the condition of his skin. None of the
       [Child Protective Services’] investigators who saw the baby ever requested that
       the blanket be removed so they could examine him.

               On the date of the baby’s death, Ms. Meacham testified that [petitioner’s]
       adoptive father woke her and told her that the baby felt cold to the touch. When
       she checked the baby, Ms. Meacham believed that the baby was dead. When she
       told [petitioner] and said they should call [9-1-1], [petitioner] refused, saying that
       instead they first needed to clean the house. As part of this house cleaning, Ms.
       Meacham and [petitioner] put toys around the baby’s crib and, after cleaning the
       house for three or four hours, called [9-1-1]. While waiting for emergency
       responders, [petitioner] instructed Ms. Meacham to tell the authorities that they
       had fed the baby around 2:30 a.m. that morning, changed his diaper, and that the
       baby was fine at that time.

State v. Anderson, 228 W.Va. 58, 62-63, 717 S.E.2d 245, 249-50 (2011).

        On April 12, 2010, the jury found petitioner guilty of the crime charged and did not
recommend mercy. Thereafter, the trial court sentenced petitioner to life in prison without the
possibility of parole. This Court affirmed petitioner’s conviction. See id.

        In 2015, petitioner filed a pro se habeas petition. The habeas court appointed counsel,
who filed an amended habeas petition on December 10, 2015. In his Losh3 list, petitioner alleged
(1) his language barrier prevented him from understanding the proceedings; (2) the State
knowingly used perjured testimony; (3) ineffective assistance of counsel; and (4) insufficiency of
the evidence.

        At a September 14, 2016, omnibus evidentiary hearing, the habeas court heard testimony
from petitioner; his trial counsel, Harry Montoro and Katica Ribel; and Judge Patrick N. Wilson,
who – at the time of petitioner’s trial – was the Marion County prosecuting attorney who tried
petitioner’s case. Judge Wilson testified that he used Ms. Meacham’s testimony as evidence of
petitioner’s contribution to the infant’s death. Judge Wilson further testified that Ms. Meacham’s
testimony was inherent to the elements of the crime; consequently, he did not file a motion to use
Rule 404(b) evidence with regard to Ms. Meacham’s testimony.

       By order dated June 7, 2017, the habeas court rejected petitioner’s claims, including his
claim of ineffective assistance of trial counsel. Petitioner now appeals.

       As we have held,




       3
           See Losh v. McKenzie, 166 W.Va. 762, 764, 277 S.E.2d 606, 608 (1981).
                                                 3
               “In reviewing challenges to the findings and conclusions of the circuit
       court in a habeas corpus action, we apply a three-prong standard of review. We
       review the final order and the ultimate disposition under an abuse of discretion
       standard; the underlying factual findings under a clearly erroneous standard; and
       questions of law are subject to a de novo review.”

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). We have also held that to
succeed on a claim of ineffective assistance of counsel in a habeas action, the petitioner must
establish that (1) his trial counsel’s “performance was deficient under an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” Syl. Pt. 5, in part, State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (citing Strickland v. Washington, 466 U.S. 668
(1984)). “Failure to meet the burden of proof imposed by either part of the Strickland/Miller test
is fatal to a habeas petitioner’s claim. State ex rel. Daniel v. Legursky, 195 W.Va. 314, 321, 465
S.E.2d 416, 423 (1995).” State ex rel. Vernatter v. Warden, W. Va. Penitentiary, 207 W. Va. 11,
17, 528 S.E.2d 207, 213 (1999).

        Petitioner raises two assignments of error on appeal both of which address his claim of
ineffective assistance of trial counsel. Petitioner first argues that the habeas court abused its
discretion and clearly erred when it failed to recognize that Rule 404(b) of the West Virginia
Rules of Evidence prohibited Ms. Meacham’s testimony regarding petitioner’s alleged prior bad
acts and other crimes. Specifically, petitioner avers that the trial court failed to comply with its
Rule 404(b) duties as set forth in Syllabus Point 3 of State v. LaRock, 196 W.Va. 294, 470
S.E.2d 613 (1996)4; and Syllabus Points 1 and 2 of State v. McGinnis, 193 W.Va. 147, 455
S.E.2d 516 (1994).5


       4
          With regard to evidence deemed to be Rule 404(b) evidence, Syllabus Point 3 of the
State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), requires a trial court to determine
whether the State offers the evidence for a proper purpose and if the evidence is relevant. The
trial court must also make an “on-the-record determination under Rule 403 of the West Virginia
Rules of Evidence that the probative value of the evidence is not substantially outweighed by its
potential for unfair prejudice.” Finally, the trial court must give a limiting instruction regarding
the evidence.
       5
        In Syllabus Points 1 and 2 of State v. McGinnis, 193 W.Va. 147, 151, 455 S.E.2d 516,
520 (1994), we held that:

                1. When offering evidence under Rule 404(b) of the West Virginia Rules
       of Evidence, the prosecution is required to identify the specific purpose for which
       the evidence is being offered and the jury must be instructed to limit its
       consideration of the evidence to only that purpose. It is not sufficient for the
       prosecution or the trial court merely to cite or mention the litany of possible uses
       listed in Rule 404(b). The specific and precise purpose for which the evidence is
       offered must clearly be shown from the record and that purpose alone must be
       told to the jury in the trial court’s instruction.


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        We first note that although petitioner couches this assignment of error as a claim of
ineffective assistance of counsel, in essence, he argues that the trial court erred in allowing the
admission of Ms. Meacham’s alleged Rule 404(b) testimony at trial.6 “A habeas corpus
proceeding is not a substitute for a writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed.” Syl. Pt. 3, Hatcher v. McBride, 221 W.Va. 5, 650
S.E.2d 104 (2006) (citation omitted). However, even if we assume that petitioner properly raises
this issue as one of ineffective assistance of counsel, we concur with the habeas court’s finding
that

       there was no inadmissible 404(b) evidence presented at trial. The testimony
       concerning [petitioner’s] violence towards Ms. Meacham was not used as
       evidence of [petitioner’s] character or character trait, but rather used by the State
       to prove that [petitioner] caused Ms. Meacham to be incapable of caring for the
       infant decedent, directly contributing to the death of the child. Therefore, . . .
       [petitioner’s] trial counsel did not err by failing to object to this evidence on Rule
       404(b) grounds.

       Under Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with his character.” However, evidence related to such acts is admissible where that
evidence is intrinsic to the crimes charged. See State v. Harris, 230 W.Va. 717, 742 S.E.2d 133
(2013). “‘Other act’ evidence is ‘intrinsic’ when the evidence of the other act and the evidence of
the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal
episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” State v. Harris,


                2. Where an offer of evidence is made under Rule 404(b) of the West
       Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
       Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
       satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
       the limited purpose for which such evidence has been admitted. A limiting
       instruction should be given at the time the evidence is offered, and we recommend
       that it be repeated in the trial court’s general charge to the jury at the conclusion
       of the evidence.
       6
         In his direct appeal to this Court, petitioner did not argue that the trial court erred in
allowing the admission of Ms. Meacham’s alleged Rule 404(b) testimony at trial.
                                                 5

230 W.Va. 717, 721, 742 S.E.2d 133, 137 (2013) (citing State v. LaRock, 196 W.Va. at 312 n.29,
470 S.E.2d at 631 n.29 (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990)).

        Here, Ms. Meacham’s testimony regarding petitioner’s behavior toward her and the
infant was properly admitted because that evidence was necessary for a full presentation of the
case and essential to proving that petitioner intentionally failed to care for the infant and would
not allow Ms. Meacham to care for the infant. Accordingly, Ms. Meacham’s testimony was not
Rule 404(b) evidence, but both direct and intrinsic evidence of the crime charge against
petitioner, i.e., the “murder of a child by a parent, guardian, or custodian by maliciously and
intentionally and/or knowingly allowing any other person to maliciously and intentionally cause
the death of a child under his care, custody or control by failing to supply such child with
necessary food, clothing, shelter or medical care . . . thus causing the death of said child[.]”
Consequently, we reject petitioner’s ineffective assistance of counsel claim with regard to the
admission of Ms. Meacham’s testimony.

        In petitioner’s second assignment of error, he argues that the habeas court abused its
discretion in failing to find that the trial court erred by refusing to employ the requisite
protections for Rule 404(b) evidence and, thereby, denied his right to procedural due process as
guaranteed by the Fifth Amendment to the United States Constitution and his right to effective
assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution.

        As we noted above, Ms. Meacham’s testimony was not Rule 404(b) evidence; thus, it
was not subject to any of the procedural protections required for Rule 404(b) evidence.
Accordingly, we find that the admission of Ms. Meacham’s testimony was not a denial of
petitioner’s procedural due process rights under the Fifth Amendment.

        As for petitioner’s Sixth Amendment claim, he argues that his trial counsel’s
performance was deficient under an objective standard of reasonableness because trial counsel
failed to fully litigate or to object to Ms. Meacham’s Rule 404(b) testimony. Petitioner avers that
this failure amounted to a denial of his right to counsel. Petitioner also argues that he was
prejudiced by trial counsel’s ineffective assistance because, absent Ms. Meacham’s testimony,
the State could not have proved malice and, therefore, could not have convicted him.
Accordingly, petitioner asserts that, but for trial counsel’s objectively deficient performance, the
result at trial would have been different.

        Our review of defense counsel’s performance is “highly deferential” and begins with the
strong presumption that “counsel’s performance was reasonable and adequate.” Miller, 194
W.Va. at 16, 459 S.E.2d at 127. Moreover, there is a wide range of performance that qualifies as
constitutionally sufficient:

              A defendant seeking to rebut this strong presumption of [defense
       counsel’s] effectiveness bears a difficult burden because constitutionally
       acceptable performance is not defined narrowly and encompasses a “wide range.”
       The test of ineffectiveness has little or nothing to do with what the best lawyers
       would have done. Nor is the test even what most good lawyers would have done.



                                                 6

       We only ask whether a reasonable lawyer would have acted, under the
       circumstances, as defense counsel acted in the case at issue.

Id. “In reviewing counsel’s performance, courts must apply an objective standard and determine
whether, in light of all the circumstances, the identified acts . . . were outside the broad range of
professionally competent assistance while at the same time refraining from engaging in hindsight
or second-guessing of trial counsel’s strategic decisions.” Id. at 17, 459 S.E.2d at 128. “A
decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel
unless counsel’s tactics are shown to be ‘so ill chosen that it permeates the entire trial with
obvious unfairness.’” Legursky, 195 W.Va. at 328, 465 S.E.2d at 430 (citing Teague v. Scott, 60
F.3d 1167, 1172 (5th Cir. 1995), quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983)).

        As for the first or “objectively unreasonable” prong of Strickland/Miller, it is satisfied
only if the error is “so serious that [the defense attorney] was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Here, because
Ms. Meacham’s testimony was direct evidence and/or intrinsic to the crime charged, trial
counsel’s performance was not deficient for failing to object to it. See State v. Hutchinson, 215
W.Va. 313, 321, 599 S.E.2d 736, 744 (2004) (context evidence illustrating why defendant
committed murder is intrinsic evidence; thus, State had no obligation to provide notice of Rule
404(b) evidence and defense counsel had no reason to object). Moreover, even if the evidence
had been Rule 404(b) evidence, counsel’s decision not to object to the evidence would have
fallen within the realm of sound trial tactics or strategy. See Buchanan v. United States, 2011
WL 4832565, at *5 (D.S.D. Oct. 12, 2011) (defense counsel opted not to object to Rule 404(b)
evidence to avoid undue attention to evidence of preparation, planning, or intent). Therefore,
counsel’s failure to object to Ms. Meacham’s testimony was not objectively unreasonable and
was not so serious that petitioner’s Sixth Amendment rights were denied.

        With regard to the second prong of Strickland/Miller, it is satisfied only if there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different.” Miller, 194 W.Va. at 6, 459 S.E.2d at 117, syl. pt. 5. Here, even if
the trial court had excluded Ms. Meacham’s testimony, the jury could have convicted petitioner
given the overwhelming evidence of his guilt. That copious evidence showed that, throughout
the course of his infant’s brief life, petitioner intentionally and maliciously failed to provide
food, shelter, and clothing to him and that this failure resulted in the infant’s death. Thus,
petitioner cannot satisfy the second prong of Strickland/Miller. Consequently, because petitioner
satisfies neither prong of Strickland/Miller, we reject his claim that he was denied his Sixth
Amendment right to the assistance of counsel.

       Accordingly, for the foregoing reasons, we affirm the habeas court’s June 7, 2017, order
denying relief.

                                                                                          Affirmed.


ISSUED: June 8, 2018



                                                 7

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Allen H. Loughry II
Justice Elizabeth D. Walker

DISSENTING:

Justice Menis E. Ketchum




                                    8
