                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                FILED
                                                                                June 28, 2013
Plaintiff Below, Respondent                                                RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA
vs.) No. 12-0954 (Marion County 10-F-168)

James William Allport,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

        Petitioner’s appeal, filed by counsel George Stanton III, arises from the Circuit Court of
Marion County, wherein he was sentenced by order dated July 5, 2012, to a term of incarceration
of one to five years following his conviction of possession of a controlled substance with intent
to deliver. The State of West Virginia, by counsel Scott Johnson, has filed its response.

       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 briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On October 12, 2010, petitioner was indicted on one count of possession of a controlled
substance with intent to deliver. On January 4, 2012, the circuit court held a pretrial hearing to
address petitioner’s motion in limine objecting to the introduction of witness testimony regarding
previous instances of drug purchases. Following a brief hearing on whether the testimony was
intrinsic evidence or character evidence pursuant to Rule 404(b) of the West Virginia Rules of
Evidence, the circuit court granted a joint continuance of the trial and set a Rule 404(b) hearing.

         Following a Rule 404(b) hearing, the circuit court denied petitioner’s motion in limine
regarding the State’s testimony by order entered on February 15, 2012. The circuit court held
that the testimony was relevant to prove petitioner’s intent to deliver and that the present case
was distinguishable from State v. Taylor, 215 W.Va. 74, 593 S.E.2d 645 (2004). Additionally,
the circuit court held that the nature of the offense necessitated the introduction of the evidence,
indicated a pattern of conduct throughout the occupancy of the apartment, and was not so far
removed from the time of the arrest that it would overly prejudice the jury. Following a two-day
trial, petitioner was found guilty of possession with intent to deliver a controlled substance and
sentenced to a term of incarceration of one to five years. Petitioner’s sentence was suspended and
he was placed on probation for three years.


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       On appeal, petitioner argues that the State failed to properly notify petitioner of its intent
to use Rule 404(b) evidence; that the testimony of Mr. George, petitioner’s roommate, was more
broad than the circuit court’s Rule 404(b) order; that the circuit court failed to rule whether the
evidence’s probative value was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or potential to mislead the jury; and that the circuit court failed to
consider undue delay, waste of time, or needless presentation of cumulative evidence.

       We have articulated the following standard of review for an appeal of a trial court’s
admission of 404(b) evidence:

       The 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 [of the West Virginia Rules of
       Evidence].

State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). In State v. McGinnis,
193 W.Va. 147, 455 S.E.2d 516 (1994), we explained that this Court will “review the trial
court’s decision to admit evidence pursuant to Rule 404(b) under an abuse of discretion
standard.” McGinnis, 193 W.Va. at 159, 455 S.E.2d at 528. We further stated in McGinnis:

       Our 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 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.

Id. While the record clearly reflects that the State did not notify petitioner of its intent to
introduce Rule 404(b) evidence, the circuit court, without objection, granted a joint continuance
of the trial and held a proper McGinnis hearing. Thus, any procedural violation that may have
excluded the evidence was cured by the joint continuance. Additionally, a review of the record
shows that Mr. George’s trial testimony was substantially similar to the testimony he gave during
the Rule 404(b) hearing. Furthermore, a review of the record shows that the evidence was
admissible to show petitioner’s intent and that the circuit court gave a limiting instruction after
each witness testified. Finally, the circuit court did not abuse its discretion in finding that the
nature of the offense necessitates the introduction of the evidence. “[H]istorical evidence of
uncharged prior acts which is inextricable intertwined with the charged crime is admissible over
a Rule 403 objection.” LaRock, 196 W.Va. at 313, 470 S.E.2d at 632 (1996). Thus, when viewed
in the light most favorable to the State, we find that the circuit court did not err in admitting
testimony of petitioner’s prior drug deals because the evidence was admissible for a legitimate
purpose under Rule 404(b), and not offered to show petitioner’s criminal disposition.

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       For the foregoing reasons, we affirm.


                                                     Affirmed.


ISSUED: June 28, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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