                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                     June 28, 2013
vs) No. 12-0571 (Mercer County 11-F-167)                                        RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Larry Butterworth,
Defendant Below, Petitioner
                                  MEMORANDUM DECISION

       Petitioner Larry Butterworth’s appeal, filed by counsel Phillip Scantlebury, arises from
the Circuit Court of Mercer County, wherein petitioner was convicted of the misdemeanor
offense of obtaining money by false pretenses. Following this conviction, petitioner was
sentenced to five years of probation in lieu of one year in jail by order entered on April 3, 2012.
The State, by counsel Scott E. Johnson, filed a response in favor of affirming petitioner’s
conviction.

       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.

       In January of 2012, petitioner was convicted, by jury, of the misdemeanor offense of
obtaining money by false pretenses. In April of 2012, the circuit court ordered petitioner to serve
five years of probation in lieu of his original sentence, which was a year in jail. Following this
sentence, petitioner filed this appeal.

         First, petitioner argues that the State failed to previously disclose two items it tendered as
evidence admitted at trial: (1) a letter from the alleged victim to petitioner that was dated
November 27, 2010; and (2) certain cell phone text messages between petitioner and the alleged
victim. Petitioner argues that because neither item was previously disclosed to petitioner before
trial, the State violated Rule 16 of the West Virginia Rules of Criminal Procedure. Petitioner
argues that, pursuant to State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988), the admission
of both pieces of evidence prejudiced petitioner’s case because it hampered his ability to prepare
and present an adequate cross-examination on these issues.

       We analyze evidentiary rulings under the following standard of review:

       The West Virginia Rules of Evidence . . . allocate significant discretion to the trial
       court in making evidentiary . . . rulings. Thus, rulings on the admission of
       evidence . . . are committed to the discretion of the trial court. Absent a few



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       exceptions, this Court will review evidentiary . . . rulings of the circuit court under
       an abuse of discretion standard.

State v. Swims, 212 W.Va. 263, 269-70, 569 S.E.2d 784, 790-91 (2002) (quoting Syl. Pt. 9 of
Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997)). Upon our
review, we find no abuse of discretion by the circuit court to warrant reversal. The record
indicates that petitioner argued that another letter that was dated November 26, 2010, was the
only one he received in discovery. The State explained that it planned to admit the November 27,
2010, letter, and not the November 26, 2010, letter. In response, petitioner asserted that he would
admit the November 26, 2010, letter, to which the State had no objection. This discussion
concluded with the circuit court inquiring, “So, is that all settled . . . [to your] satisfaction?” Both
parties responded in the affirmative and the trial proceeded. Accordingly, we find that petitioner
expressly waived his objection to the letter at issue here.

        We also find no abuse of discretion by the circuit court with regard to the admission of
certain cell phone text messages that were not previously disclosed. Generally,

       [A]ll courts agree that the rule [Rule 16 of the West Virginia Rules of Criminal
       Procedure] ‘gives the [trial] court broad discretion in deciding what should then
       be done . . . The threshold inquiry is to “take into account the reasons why
       disclosure was not made, the extent of the prejudice, if any, to the opposing party,
       the feasibility of rectifying that prejudice by a continuance [or recess if the trial
       has begun], and any other relevant circumstances.” Some courts have added that
       consideration should be given to “whether the prosecution acted in bad faith in
       violating the . . . discovery order.”

Johnson, 179 W.Va. at 625, 371 S.E.2d at 346 (internal citations omitted). Our review indicates
that, after petitioner objected to the admission of certain text messages during the State’s re­
direct examination of the victim, the circuit court held a recess for petitioner’s counsel to review
this evidence. After the recess, the trial proceeded without further objection to this evidence and
petitioner’s counsel chose not to re-cross-examine the victim. We therefore find that any
prejudice was rectified by petitioner’s opportunity to review the evidence during recess, and the
opportunity for petitioner to cross-examine the witness concerning this evidence.

        Second, petitioner argues that the circuit court erred in admitting Rule 404(b) evidence
without performing a proper analysis. Petitioner challenges the admissibility of State’s Exhibit
No. 24, which was a copy of the criminal complaint filed against petitioner for a 2005 charge of
obtaining money by false pretenses. This criminal complaint was ultimately resolved by
petitioner’s guilty plea. In reviewing this assignment of error, we bear in mind the following:

       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



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       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, 470 S.E.2d 613, 629 (1996).

        After conducting a hearing on the Rule 404(b) motion, the circuit court found that this
evidence was admissible. Although the circuit court did not provide an articulate analysis for
admitting the prior conviction, our review indicates that any error in this regard is harmless. The
State sought to admit petitioner’s prior conviction in order to prove petitioner’s intent and
common scheme or plan in the instant case. The prior conviction was not too remote in time to
the instant case, and the facts of that crime show that petitioner executed his actions similarly in
this case. Our review of the record reveals the relevance and apparent purposes for offering this
evidence under Rule 404(b) and, accordingly, any error in this regard is harmless error. See State
v. LaRock, 196 W.Va. at 312 n.28, 470 S.E.2d at 631 n.28. (“Although we believe the trial court
failed to articulate precisely the purpose of this evidence under Rule 404(b), this failure is subject
to harmless error analysis . . . . Our reading of the entire transcript reveals the relevance and
apparent purposes for offering this evidence under Rule 404(b).”) Furthermore, the circuit court
gave a limiting instruction to the jury concerning the limited purpose of this evidence.

       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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