        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2013 Term
                                                               FILED

                                                            June 18, 2013

                                                            released at 3:00 p.m.
                                                            RORY L. PERRY II, CLERK
                                    No. 12-0189           SUPREME COURT OF APPEALS
                                                              OF WEST VIRGINIA




                          STATE OF WEST VIRGINIA,

                           Plaintiff Below, Respondent




                                         V.


                         CHARLES EDWARD BRUFFEY,

                           Defendant Below, Petitioner




                 Appeal from the Circuit Court of Mineral County

                        Honorable Lynn A. Nelson, Judge

                           Criminal Action No. 11-F-29


                                    AFFIRMED



                              Submitted: April 24, 2013
                                 Filed: June 18, 2013

Nicholas T. James                                  Patrick Morrisey
James Law Firm PLLC                                Attorney General
Keyser, West Virginia                              Thomas W. Rodd
Attorney for the Petitioner                        Assistant Attorney General
                                                   Andrew D. Mendelson
                                                   Assistant Attorney General
                                                   Charleston, West Virginia
                                                   Attorneys for the Respondent
The Opinion of the Court was delivered PER CURIAM.

CHIEF JUSTICE BENJAMIN and JUSTICE KETCHUM dissent and reserve the right
to file dissenting opinions.
                              SYLLABUS BY THE COURT




              1.      “The action of a trial court in admitting or excluding evidence in the

exercise of its discretion will not be disturbed by the appellate court unless it appears that

such action amounts to an abuse of discretion.” Syllabus point 10, State v. Huffman, 141

W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell,

192 W. Va. 435, 452 S.E.2d 893 (1994).



              2.     “To trigger application of the ‘plain error’ doctrine, there must be (1)

an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Syllabus point 7, State

v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).



              3.      “Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show that he acted in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. W. Va. R. Evid.

404(b).” Syllabus point 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123

(1990).




                                               i
              4.      “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.” Syllabus point 2, State v. McGinnis, 193 W. Va. 147, 455

S.E.2 516 (1994).



              5.     “In the exercise of discretion to admit or exclude evidence of collateral

crimes and charges, the overriding considerations for the trial court are to scrupulously


                                               ii
protect the accused in his right to a fair trial while adequately preserving the right of the State

to prove evidence which is relevant and legally connected with the charge for which the

accused is being tried.” Syllabus point 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445

(1974).



               6.    “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to

the United States Constitution and Section 14 of Article III of the West Virginia Constitution

bars the admission of a testimonial statement by a witness who does not appear at trial, unless

the witness is unavailable to testify and the accused had a prior opportunity to cross-examine

the witness.” Syllabus point 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006).



               7.    “In a criminal case, the burden is upon the beneficiary of a constitutional

error to prove beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.” Syllabus point 3, State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727

(2012).



               8.     “‘To constitute probable cause for the issuance of a search warrant, the

affiant must set forth facts indicating the existence of criminal activities which would justify

a search and further, if there is an unnamed informant, sufficient facts must be set forth


                                                iii
demonstrating that the information obtained from the unnamed informant is reliable.’

Syllabus point 1, State v. Stone, 165 W. Va. 266, 268 S.E.2d 50 (1980).” Syllabus point 1,

State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982).




                                            iv
Per Curiam:

              The petitioner herein and defendant below, Charles Edward Bruffey

(hereinafter “Mr. Bruffey”), was sentenced on January 18, 2012, to a term of incarceration

of ten to twenty years following his jury conviction for robbery. Mr. Bruffey asserts that the

trial court committed four errors: (1) admitting the prosecution’s solicited testimony on Mr.

Bruffey’s silence post-Miranda1 warning; (2) allowing Rule 404(b) evidence of a second

uncharged bank robbery without an adequate McGinnis2 hearing; (3) violating Mr. Bruffey’s

Sixth Amendment rights by permitting a police officer to testify about statements made by

a witness who did not take the stand at trial; and (4) finding that the investigating officer’s

affidavit was sufficient to establish probable cause for a search warrant. Based upon the

parties’ written briefs and oral arguments, the appendix record designated for our

consideration, and the pertinent authorities, we affirm the circuit court.



                                              I.


                       FACTUAL AND PROCEDURAL HISTORY


              The facts of this case intertwine two separate bank robberies: one that occurred

on December 23, 2009 (hereinafter the “charged robbery”) and a subsequent robbery that



              1
                  See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
              2
               See State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994), discussed in
more detail infra.

                                              1

took place on February 26, 2010 (hereinafter the “uncharged robbery” or “second robbery”).

This appeal directly involves only Mr. Bruffey’s conviction for the charged robbery.3



                                    A.    Charged Robbery

               At about 9:30 a.m. on December 23, 2009, a white male with blue eyes entered

the M&T Bank in Fort Ashby, West Virginia. He was wearing a hat, a hood, a scarf, and a

Carhart-type jacket that had duct tape over the name badge area. The man approached the

bank teller and said, “this is a robbery . . . give me all your loose bills . . . place them on the

counter . . . no bait money or dye pack.” The robber was apologetic for his actions,

explaining that he “was sorry,” that he had “lost his job,” and that he “had to [rob the bank].”

The teller gave money to the robber totaling $1618.00. The robber then fled the bank on

foot, turning left immediately upon exiting the bank’s front doors.



               Minutes after the robbery, Sergeant Droppleman arrived on the scene. He

requested that a K-9 dog “tail” the robber. The dog found a scent and tracked it to a red car

that was parked in a parking lot about three hundred feet from the bank. A freshly-smoked

cigarette butt was found on the ground beside the red car. Sergeant Droppleman spoke to the



               3
                At some point in time thereafter, Mr. Bruffey was indicted for participation
in the uncharged robbery; however, that case is not before us. The uncharged robbery is
germane to this case only insofar as its facts were used to buttress the evidence used in the
trial of the charged robbery.

                                                2

owner of the red car spotted by the K-9 officer on the morning of the charged robbery. The

owner of the red car told the Sergeant that he saw a purple car parked near his red car, and

that a man was sitting in the purple car and smoking a cigarette. The cigarette butt found on

the morning of the charged robbery contained Mr. Bruffey’s DNA. Mr. Bruffey eventually

was indicted for the first robbery in January 2011. A jury trial was held September 26 and

27, 2011, which ultimately resulted in a conviction.



                                 B.   Uncharged Robbery

              About two months after the first robbery, on February 26, 2010, the bank was

robbed again by a white, unarmed male with blue eyes. The robber was wearing a coat and

a hooded sweatshirt, and had a burgundy-colored scarf around his face. He did not speak but

handed the teller a note demanding money, which stated, “This is a robbery[.] [G]ive me

$20-$50-$100 dollar bills[.] Put the money on the counter spread out[.] No tricks, dye

packs, bait money[.] No one gets hurt.”



              During the ensuing investigation, Sergeant Droppleman was informed that a

purple car also had been seen in the same parking lot a couple of days before the uncharged

robbery. The Sergeant was able to link the purple car to Mr. Bruffey. Moreover, a

handwriting expert with the Federal Bureau of Investigation (hereinafter “FBI”) determined




                                             3

that the demand note used in the commission of the uncharged robbery had been written by

Mr. Bruffey.



                          C.   Procedural History of Charged Robbery

               Subsequent to this second incident, Sergeant Droppleman suspected Mr.

Bruffey as the perpetrator of the first bank robbery. A search warrant was secured and

executed on Mr. Bruffey’s residence. Pursuant to the search, property was seized including

a blue jacket, a grey hooded sweatshirt, a maroon cloth, two blue notebooks containing

known writing by Mr. Bruffey, and a pack of cigarettes. Further, Sergeant Droppleman

obtained a mouth swab from Mr. Bruffey to be used in DNA comparison for the cigarette

butts found at the scene of the charged robbery.



               At a June 28, 2011, pre-trial hearing, the circuit court heard argument regarding

the State’s “Notice of Intent to Use 404(b)” evidence. In this regard, the State sought to use

evidence during the trial of the charged robbery that had been obtained through the

investigation of the uncharged robbery. While Mr. Bruffey had not yet been charged with

the February 26, 2010, robbery,4 the State wished to use such evidence to establish Mr.

Bruffey’s common scheme and plan, to identify Mr. Bruffey as the perpetrator, and to show



               4
                   At some later time, Mr. Bruffey was charged with the second robbery.


                                               4

the plan and intent of Mr. Bruffey. The State sought to enter, among other things, the

testimony of an FBI handwriting expert who had determined that Mr. Bruffey wrote the

demand note used in the uncharged robbery, as well as evidence regarding the purple car

owned by Mr. Bruffey and its appearance close in time and proximity to both bank robberies.



              After the hearing on the 404(b) evidence, the circuit court entered a July 7,

2011, order stating, in relevant part, as follows:

                      2.      [The robber] told the teller that “this is a robbery”,
              “give me all your loose money”, directed her to lay the money
              on the counter, asked “if there were any bait or die (sic) packs”,
              stated that he “wouldn’t hurt me [the teller]”, and that “he had
              just lost his job and he had to do this”.

                     ....

                      4.        [T]he M&T Bank . . . was robbed a second
              time . . . The suspect . . . held up a note . . . that stated: “This is
              a robbery give me $20-$50-$100 dollar bills lots Put the money
              on the counter spread out No tricks, dye packs, bait money No
              one gets hurt”.

                     5.     Sgt. Droppleman suspected that [Mr. Bruffey] was
              the robber in the first bank robbery and executed a search
              warrant on his residence. The property seized included a blue
              jacket, gray hooded sweatshirt, maroon cloth, two blue lined
              notebooks containing know [sic] writing of [Mr. Bruffey’s], and
              a pack of Pall Mall cigarettes. Sgt. Droppleman also obtained
              a mouth swab from [Mr. Bruffey] for DNA comparison[.]

                     ....

                    7.    The note that was recovered from the scene at the
              second robbery was submitted to the FBI crime lab for

                                                5

              comparison to the recovered samples from the search. . . . the
              FBI examiner confirmed that the note was authored by [Mr.
              Bruffey].

                     ....

                     10.    In conducting the McGinnis analysis, this Court is
              convinced by a preponderance of the evidence that the second
              robbery did occur and that [Mr. Bruffey] was the person who
              committed it based upon the fact that [Mr. Bruffey] robbed the
              exact same bank in an almost identical manner. The Court
              likewise is convinced based upon the results of the handwriting
              analysis that [Mr. Bruffey] did author the note found at the
              second robbery. Additionally, the use of the terms “bait money”
              and “dye pack” during both robberies seems to indicate that the
              same actor was involved on both occasions. . . .



              Following a two-day jury trial, Mr. Bruffey was convicted on September 27,

2011, of the charged robbery in violation of W. Va. Code § 61-2-12 (2000) (Repl. Vol.

2010). During the December 28, 2011, sentencing hearing, the circuit court denied Mr.

Bruffey’s motion for a new trial and sentenced him to not less than ten nor more than twenty

years in prison. The circuit court’s sentencing order was entered January 18, 2012, and this

appeal followed on February 3, 2012.



                                            II.

                               STANDARD OF REVIEW

              This case comes before this Court on appeal from a sentencing order. We

previously have explained our standard of reviewing sentencing orders as follows: “The

                                             6

Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of

discretion standard, unless the order violates statutory or constitutional commands.” Syl. pt.

1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). With respect to Mr.

Bruffey’s challenges to the circuit court’s evidentiary rulings, we note that, generally, “[t]he

action of a trial court in admitting or excluding evidence in the exercise of its discretion will

not be disturbed by the appellate court unless it appears that such action amounts to an abuse

of discretion.” Syl. pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled

on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994).

Mindful of these guidelines, we turn to the arguments raised herein. Additional standards

for our review are set out in our discussion of the particular issues to which they pertain.



                                              III.


                                        DISCUSSION


              On appeal to this Court, Mr. Bruffey sets forth four assignments of error: (1)

the admission of the prosecution’s solicited testimony on Mr. Bruffey’s silence

post-Miranda5 warning; (2) the admission of Rule 404(b) evidence of a second uncharged

bank robbery without an adequate McGinnis6 hearing; (3) the violation of Mr. Bruffey’s

Sixth Amendment rights by permitting a police officer to testify about statements made by



              5
                  See note 1, supra.

              6
                  See State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994), infra.


                                               7

a witness who did not take the stand at trial; and (4) the conclusion that the investigating

officer’s affidavit was sufficient to establish probable cause for a search warrant. We will

address each issue individually.



                            A. Silence Post-Miranda Warning

              Mr. Bruffey’s initial assignment of error is that the prosecution improperly

solicited trial testimony that commented on his silence post-Miranda warning. Moreover,

Mr. Bruffey asserts that his counsel’s failure to object to the statements was plain error. The

State, conversely, asserts that none of the statements of which Mr. Bruffey complains

amounted to an improper reference to his silence.



              Both Article III, Section 5 of the West Virginia Constitution and the Sixth

Amendment of the United States Constitution provide a constitutional right to remain silent.

It is reversible error for the State to cross-examine a defendant in regard to his pre-trial

silence or to comment on the defendant’s silence to the jury. State v. Boyd, 160 W. Va. 234,

233 S.E.2d 710 (1977). See also State v. Fortner, 150 W. Va. 571, 148 S.E.2d 669 (1966),

overruled on other grounds. Defendants are presumed innocent at trial, “[s]o the law having

brought the prisoner into court against his will, [must] not permit his silence to be treated or

used as evidence against him.” State v. Taylor, 57 W. Va. 228, 50 S.E. 247 (1905).




                                               8

              Mr. Bruffey argues that, during the State’s opening statement, it made

reference to his pre-trial silence by commenting, “[o]n another occasion, after another

Miranda warning was given, Sergeant Droppleman also was told by [Mr. Bruffey], ‘I think

I should wait to talk to you about this,’ and said nothing further.” Then, during the State’s

case-in-chief, the prosecutor solicited the following response from Sergeant Droppleman,

“[W]e didn’t take a written statement. [Mr. Bruffey] didn’t want to provide one, which is

his right.” Thereafter, the prosecutor asked Sergeant Droppleman, “Did [Mr. Bruffey] make

any statement to you on the occasion after being advised of his rights?” Sergeant Droppleman

replied:

                     Yes. On October 13th 2010, I located [Mr. Bruffey] at
              Ray’s Texaco, at which point in time I took him into
              custody . . . . I read his Miranda rights at the counter and then
              took him out. We drove to the office. And then after I got him
              to the office before processing, I filled out another Miranda
              form, a written form, he did initial portions of that form, but
              decided not to sign it. He didn’t want to sign a waiver. He
              didn’t want to waive his rights and provide a written statement
              to me at that time.



              As previously noted, Mr. Bruffey invites this Court to invoke the plain error

doctrine because his counsel failed to object to the alleged post-Miranda silence comments.

The plain error doctrine is set forth in Syllabus point 7 of State v. Miller, 194 W. Va. 3, 459

S.E.2d 114 (1995), which states: “To trigger application of the ‘plain error’ doctrine, there

must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously


                                              9

affects the fairness, integrity, or public reputation of the judicial proceedings.” We find that,

under the facts of the present case, the first prong of the test has not been satisfied. That is,

there was no error, as established by a full reading of the record.



              The prosecution’s and Sergeant Droppleman’s brief references to Mr. Bruffey’s

Miranda warnings were not made to call attention to Mr. Bruffey’s pre-trial silence but rather

to properly lay the foundation for the admission of Mr. Bruffey’s inculpatory statements that

he made after he was read his Miranda warnings. The inculpatory statements were that he

“had been unemployed and out of work for a number of months,” and “I’m going to jail for

a long time.” The first statement was relevant because the bank robber had told the teller that

he had lost his job. The second statement was relevant as a tacit admission of guilt.



              We agree with Mr. Bruffey that it would have been improper for the State to

suggest that his silence is indicative of guilt. Importantly, the State did not comment on Mr.

Bruffey’s silence. Rather, the State merely directed the jury’s attention to Mr. Bruffey’s

inculpatory statements. For these reasons, petitioner’s first assignment of error is without

merit.




                                               10

                                     B. 404(b) Evidence

              Next, Mr. Bruffey argues that the circuit court committed reversible error in

admitting Rule 404(b) evidence regarding the uncharged robbery for the purpose of showing

a common plan or scheme and identity because: (1) the circuit court admitted the evidence

solely on the State’s proffer; (2) Mr. Bruffey had not been charged with the second robbery

when the circuit court admitted the evidence; and (3) the evidence was highly prejudicial.

To the contrary, however, the State asserts that the evidence proffered at the pre-trial hearing

on the 404(b) evidence was sufficient for the circuit court to find it both admissible and

relevant.



              Specifically, it is well established that

                      [t]he standard of review for a trial court’s admission of
              evidence pursuant to Rule 404(b) involves a three-step
              analysis. First, we review for clear error the trial court’s factual
              determination that there is sufficient evidence to show the other
              acts occurred. Second, we review de novo whether the trial
              court correctly found the evidence was admissible for a
              legitimate purpose. Third we review for an abuse of discretion
              the trial court’s conclusion that the “other acts” evidence is more
              probative than prejudicial under Rule 403.

State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). Moreover, this

Court previously has recognized that its function on appeal

              is limited to the inquiry as to whether the trial court acted in a
              way that was so arbitrary and irrational that it can be said to

                                              11

             have abused its discretion. In reviewing the admission of Rule
             404(b) evidence, we review it in the light most favorable to the
             party offering the evidence, in this case the prosecution,
             maximizing its probative value and minimizing its prejudicial
             effect.

State v. Willett, 223 W. Va. 394, 397, 674 S.E.2d 602, 605 (2009) (per curiam).



             Generally,

                    [e]vidence of other crimes, wrongs, or acts is not
             admissible to prove the character of a person in order to show
             that he acted in conformity therewith. It may, however, be
             admissible for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan, knowledge, identity, or
             absence of mistake or accident. W. Va. R. Evid. 404(b).

Syl. pt. 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Rule 404(b)

of the West Virginia Rules of Evidence states as follows:

                    (b) Other crimes, wrongs, or acts. – Evidence of other
             crimes, wrongs, or acts is not admissible to prove the character
             of a person in order to show that he or she acted in conformity
             therewith. It may, however, be admissible for other purposes,
             such as proof of motive, opportunity, intent, preparation, plan,
             knowledge, identity, or absence of mistake or accident, provided
             that upon request by the accused, the prosecution in a criminal
             case shall provide reasonable notice in advance of trial, or
             during trial if the court excuses pretrial notice on good cause
             shown, of the general nature of any such evidence it intends to
             introduce at trial.



             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

                                           12

Evidence, is to determine its admissibility. Before admitting the evidence, the trial court

should conduct an in camera hearing.

                      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.

Syl. pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994). In conducting the

foregoing analysis, trial courts have been directed that,

                      [i]n the exercise of discretion to admit or exclude
              evidence of collateral crimes and charges, the overriding
              considerations for the trial court are to scrupulously protect the
              accused in his right to a fair trial while adequately preserving the
              right of the State to prove evidence which is relevant and legally
              connected with the charge for which the accused is being tried.

Syl. pt. 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974). In that regard, this

                                              13

Court has recognized that, “[a]s to the balancing under Rule 403, the trial court enjoys broad

discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial

court’s discretion will not be overturned absent a showing of clear abuse.” Syl. pt. 10, in

part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).



              In the instant case, there was sufficient evidence for the circuit court to find

that the second robbery occurred, that Mr. Bruffey was the perpetrator of the second robbery,

and that the two robberies were sufficiently similar to show a common plan or scheme and

identity. First, an FBI handwriting expert found the handwriting on the demand note used

in the second robbery to be Mr. Bruffey’s. Second, the two robberies involved the same bank

and occurred within a short period of time. Third, the robber in both crimes was an unarmed

white man with blue eyes who used clothing to cover his face and who told the teller not to

use dye packs or bait money. The State also alleged that there was substantial forensic

evidence linking petitioner to both crimes, including Mr. Bruffey’s DNA on the cigarette butt

found near the scene after the charged robbery. Further, the similarity and uniqueness of the

language used (verbally, in the first robbery, and written, in the second robbery) requesting

the money be spread out and no bait or dye packs be used; the FBI’s positive identification

of the defendant’s handwriting on the note used during the uncharged robbery; the similar

clothing; the references by the robber to needing money because of unemployment and the

conversations Mr. Bruffey had with the investigating officer; and two separate eye witnesses


                                              14

describing the same uniquely-colored car at both robberies was all evidence that was proper

to show a common plan or scheme and identity. In this regard, the circuit court found “by

a preponderance of the evidence that the second robbery occurred and that [Mr. Bruffey]

committed the second robbery due to the similarity between the two crimes, the FBI’s

handwriting analysis, and the language in the demand note regarding dye packs and bait

money.”



              This Court has affirmed the entry of “other crimes” evidence where the crimes

were near in time and of a similar character. See State v. Bunda, 187 W. Va. 389, 395, 419

S.E.2d 457, 463 (1992) (per curiam); State v. Johnson, 105 W. Va. 598, 143 S.E. 352, 353

(1928). Therefore, in light of the McGinnis standard, the circuit court did not act in an

arbitrary manner and did not abuse its discretion in concluding that the substantial probative

value of the 404(b) evidence outweighed any prejudicial effect.



              As a final note regarding the 404(b) evidence, at the hearing on the matter, the

trial court relied upon the evidence proffered by the State in its written notice of 404(b)

evidence. The defense did not object to this procedure. Before this Court, however, Mr.

Bruffey proposes that the State was required to discuss its evidence in specific terms at the

McGinnis hearing, relying upon this Court’s admonition in State v. Dolin:

              [T]he trial court [held] an in camera hearing prior to trial to
              consider the admissibility of the collateral crime evidence.

                                             15

              However, at the hearing, the specific collateral . . . offenses the
              State planned to present at trial and the possible applicable
              exceptions were simply discussed in general terms. The in
              camera hearing is rendered meaningless if a trial court is not
              informed specifically of the details surrounding each collateral
              offense and is not informed of which exception is applicable. A
              trial court needs such information so that it can examine the
              similarities and differences between the collateral offenses and
              the present offense and can apply the balancing test to determine
              whether the probative value outweighs the prejudicial effect of
              such evidence.

176 W. Va. 688, 693-94, 347 S.E.2d 208, 214 (1986), overruled on other grounds. However,

Dolin further explains that the purpose of a 404(b) hearing is to allow a trial court to consider

“the similarities and differences between the collateral offenses and the present offenses [so

it] can supply the balancing test to determine whether the probative value outweighs the

prejudicial effect of such evidence.” Id.,176 W. Va. at 694, 347 S.E.2d at 214. In the instant

case, the trial court accomplished that purpose as demonstrated by its resulting order which

reviewed at length the similarities between the charged and the uncharged offenses and

determined that the probative value of the 404(b) evidence outweighed any prejudicial effect.

Mr. Bruffey simply has not pointed to a single instance of “clear error” in the circuit court’s

findings and conclusions to warrant reversal of his conviction on this ground.



                   C. Testimonial Statements from Non-Trial Witness

              Mr. Bruffey’s third assignment of error contends that the lower court

improperly allowed trial testimony to be elicited without the witness being called at trial.


                                               16

Specifically, during trial, the prosecution asked Sergeant Droppleman how he had identified

Mr. Bruffey’s car. The Sergeant replied: “I want to be careful about what I say-but after the

second robbery, there had been another witness come forward and said that, that [Mr.

Bruffey’s purple] vehicle was near the scene.” The defense objected. The Court overruled

the objection and said, “Go ahead Sergeant Droppleman. You said another witness had given

you some information.” Sergeant Droppleman then testified that a witness said that he saw

a purple car parked near the bank two days before the second robbery.



              We have recognized that,

                      [p]ursuant to Crawford v. Washington, 541 U.S. 36, 124
              S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Confrontation Clause
              contained within the Sixth Amendment to the United States
              Constitution and Section 14 of Article III of the West Virginia
              Constitution bars the admission of a testimonial statement by a
              witness who does not appear at trial, unless the witness is
              unavailable to testify and the accused had a prior opportunity to
              cross-examine the witness.

Syl. pt. 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006).



              Mr. Bruffey argues that the witness’s statement to the Sergeant was testimonial

because (1) the Sergeant was gathering information from the witness as part of his underlying

investigation, (2) there was no ongoing emergency when the statement was made, and (3) the

reason for taking the statement was to establish or prove past events potentially relevant to

later criminal prosecution. Mr. Bruffey avers that the Sergeant’s testimony regarding the

                                             17

testimonial statement violated his Sixth Amendment right to confront witnesses against him

because the witness did not testify at trial, and, thus, he did not have an opportunity to

cross-examine the witness about the statement. However, even assuming that Mr. Bruffey’s

contention is true, we find the introduction of such evidence to be harmless.



              We have stated that violation of a constitutional right constitutes reversible

error unless that error is harmless beyond a reasonable doubt. Mechling, 219 W. Va. at 371,

633 S.E.2d at 316. Further, “[i]n a criminal case, the burden is upon the beneficiary of a

constitutional error to prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Syl. pt. 3, State v. Frazier, 229 W. Va. 724, 735 S.E.2d

727 (2012). See also Syl. pt. 4, State v. Jenkins, 195 W. Va. 620, 466 S.E.2d 471 (1995)

(“Errors involving deprivation of constitutional rights will be regarded as harmless only if

there is no reasonable possibility that the violation contributed to the conviction.” Syl. pt.

20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974)).



              A review of the record reveals that the statements from the non-trial witness

were not introduced to inculpate Mr. Bruffey. Rather, they were introduced to explain how

the Sergeant came to identify Mr. Bruffey as a potential suspect and how the Sergeant located

Mr. Bruffey. Second, Mr. Bruffey never denied owning the purple car. Third, there was no

Crawford or Mechling violation because the non-trial statements were not testimonial


                                             18

statements directed at establishing the facts of a past crime, but simply part of the res gestae

of the Sergeant’s investigation. Assuming, arguendo, that the statements were testimonial,

they addressed an ancillary and uncontested fact, and, in light of all of the evidence against

Mr. Bruffey, could not have made any difference in the jury’s verdict. Lastly, another

witness placed Mr. Bruffey’s purple car at the scene of the first robbery, which evidence was

not objected to by Mr. Bruffey. Accordingly, we find that the circuit court did not err in this

regard.



                          D. Probable Cause for Search Warrant

              Finally, Mr. Bruffey argues that the affidavit upon which the issuance of the

search warrant was based was insufficient to form probable cause. This Court has

recognized:

                      “To constitute probable cause for the issuance of a search
              warrant, the affiant must set forth facts indicating the existence
              of criminal activities which would justify a search and further,
              if there is an unnamed informant, sufficient facts must be set
              forth demonstrating that the information obtained from the
              unnamed informant is reliable.” Syllabus point 1, State v. Stone,
              165 W. Va. 266, 268 S.E.2d 50 (1980).

Syl. pt. 1, State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982).



              The affidavit attached to Sergeant Droppleman’s search warrant complaint

relied heavily on the following: (1) a witness saw a purple car parked near the bank two days


                                              19

before the second robbery; (2) Mr. Bruffey became nervous when the Sergeant questioned

him about the robberies; and (3) a witness saw an unidentifiable man in a parking lot on the

morning of the first robbery. Mr. Bruffey argues that the affidavit contained merely

conclusory speculations. Our review of the affidavit, however, shows that Mr. Bruffey

mischaracterizes Sergeant Droppleman’s affidavit. It is detailed and sets forth ample

grounds that establish probable cause. As such, it properly supported the issuance of the

search warrant and does not constitute reversible error in this case.



                                             IV.


                                      CONCLUSION


              Based on the foregoing, the circuit court’s January 18, 2012, order, is affirmed.



                                                                                    Affirmed.




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