                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED

                                                                                January 5, 2018

vs) No. 16-1138 (Berkeley County 15-F-47)                                       EDYTHE NASH GAISER, CLERK

                                                                                SUPREME COURT OF APPEALS

                                                                                    OF WEST VIRGINIA

Daniel Holler,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Daniel Holler, by counsel Christian J. Riddell, appeals the November 10, 2016,
order of the Circuit Court of Berkeley County that sentenced him to consecutive sentences of one
to five years in the penitentiary for his convictions of third-offense domestic battery and third-
offense domestic assault. The State of West Virginia, by counsel Robert L. Hogan, filed a
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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In February of 2015, petitioner was indicted on one count of kidnapping, one count of
third-offense domestic assault, and one count of third-offense domestic battery stemming from
an incident that occurred at his mother’s home on June 1, 2014, in Berkeley County, West
Virginia. The victim was petitioner’s fifty-four year old mother. Petitioner was thirty-one years
old. The evidence showed that because the victim requested that petitioner move out of her
residence, petitioner beat her about the head with his fists, choked her, and prevented her from
leaving her home

       Following a jury trial, petitioner was acquitted of the kidnapping charge but was
convicted of the crimes of third-offense domestic assault and third-offense domestic battery for
which he was given consecutive sentences of one to five years in the penitentiary. A re­
sentencing order was entered on November 11, 2016, for purposes of filing this appeal.

        In his first assignment of error, petitioner argues that the circuit court erred in admitting
certain photographs at trial. Petitioner contends that photographs taken by police of the victim’s
injuries were not disclosed to him until the night before trial and that the State’s failure to timely
disclose them was unreasonable and tantamount to a willful suppression of the evidence.


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        We find no error. A review of the record reveals that the photographs about which
petitioner complains were not taken by the police but, in fact, taken by the victim on the day
following the incident. The photographs, once received by the State on the night before trial,
were then immediately disclosed to petitioner.1 Over petitioner’s objection, the photographs were
admitted at trial. In contrast, petitioner did not object to the admission of photographs of the
victim’s injuries taken by police and timely disclosed to him prior to trial.2

        Generally, “[a] trial court’s evidentiary rulings . . . are subject to review under an abuse
of discretion standard.” State v. Trail, 236 W. Va. 167, 179, 778 S.E.2d 616, 628 (2015) (quoting
Syl. Pt. 4, in part, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998)). Furthermore,

       [w]here the State is unaware until the time of trial of material evidence which it
       would be required to disclose under a Rule 16 discovery request, the State may
       use the evidence at trial provided that: (1) the State discloses the information to
       the defense as soon as reasonably possible; and (2) the use of the evidence at trial
       would not unduly prejudice the defendant's preparation for trial.

Syllabus, State v. Hager, 176 W. Va. 313, 342 S.E.2d 281 (1986), overruled on other grounds by
State v. Woodson, 181 W. Va. 325, 382 S.E.2d 519 (1989). The record establishes that the State
disclosed the photographs taken by the victim as soon as reasonably possible. Further, petitioner
did not suggest below that he was in any way prejudiced by the use of the photographs at trial.
To the contrary, when the circuit court asked petitioner’s counsel what he would have done
differently if the photographs had been disclosed earlier, he replied, “Probably nothing, judge.”
The State represents, and petitioner does not dispute, that the photographs taken by the victim
were of the same injuries depicted in the photographs taken by the police but that they showed
the injuries “a little better.” Given these facts, we find that the circuit court did not abuse its
discretion in admitting the photographs at trial.

        Next, petitioner argues that the circuit court abused its discretion in admitting audio and
video evidence taken by a police cruiser “dash camera.” The recording was taken when an
unidentified female driver pulled in next to the police cruiser of Officer Eric Neely of the
Martinsburg Police Department to advise him that she had been flagged down by the victim after
the victim ran out of her home.3 At a pre-trial hearing, petitioner objected to the admission of the
video on the ground that the driver’s statements to the officer violated petitioner’s right to
confront his accusers and were “hearsay within hearsay because the woman is telling what was
told to her. And all she does is repeat what [the victim] allegedly told her.” At trial, however,
petitioner’s counsel expressly advised the circuit court that he had no objection to the admission
of this evidence. Our case law is clear that “‘[w]here objections were not shown to have been

       1
           Petitioner did not request a continuance.
       2
         Neither the photographs taken by the police nor by the victim were made a part of the
record on appeal.
       3
           Neither the video nor a transcript thereof was made a part of the record on appeal.


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made in the trial court, and the matters concerned were not jurisdictional in character, such
objections will not be considered on appeal.’ Syl. pt. 1, State Road Commission v. Ferguson, 148
W.Va. 742, 137 S.E.2d 206 (1964).” Syl. Pt. 1, State v. Simons, 201 W. Va. 235, 496 S.E.2d 185
(1997). See Honaker v. Mahon, 210 W. Va. 53, 60, 552 S.E.2d 788, 795 (2001) (stating the
general rule that “a party’s failure to object waives any right to appeal an issue.”). Thus,
petitioner’s argument that the admission of this evidence violated hearsay rules and his right to
confront his accusers is waived and will not be considered in this appeal.4

       In his next assignment of error, petitioner argues that the circuit court erred in allowing
the admission of evidence that violated West Virginia Rule of Evidence 404(b).5 The State filed
a notice of intent to use 404(b) evidence consisting of testimony by the victim regarding the
numerous times she was physically and verbally abused by petitioner over the course of many
years. At the subsequent McGinnis hearing,6 the State indicated that the purpose of introducing


        4
          Petitioner also argues that the circuit court further erred in admitting a certain portion of
the video depicting his arrest by police because the audio intermittently cut out. In fact, however,
this portion of the video was neither offered nor admitted at trial. Thus, petitioner’s argument
that the circuit court erred in admitting this evidence is without merit.
        5
            West Virginia Rule of Evidence 404(b) provides:

        (1) Prohibited Uses. Evidence 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 the character.
        (2) Permitted Uses; Notice Required. This evidence may be admissible for
        another purpose, such as proving motive, opportunity, intent, preparation, plan,
        knowledge, identity, absence of mistake, or lack of accident. Any party seeking
        the admission of evidence pursuant to this subsection must:
        (A) provide reasonable notice of the general nature and the specific and precise
        purpose for which the evidence is being offered by the party at trial; and
        (B) do so before trial--or during trial if the court, for good cause, excuses lack of
        pretrial notice.
        6
         In syllabus points one and two of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516
(1994), this Court held:

                 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.

(continued . . .)
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such evidence was to show that “this incident was not some sort of mistake or just [that] he
temporarily lost his mind for a minute or a heat of passion type of thing. . . . [that] this is not a
mistake. It was done on purpose. . . . It will also show this wasn’t an accident.” Petitioner
objected to the introduction of this evidence, arguing that it shows neither motive nor intent but
only that petitioner is a “bad man” and acted in conformity with his past pattern of behavior,
which are prohibited under Rule 404(b). At the conclusion of the McGinnis hearing, the circuit
court determined the evidence to be relevant and admissible, particularly with regard to the
kidnapping charge, which, the court observed, requires the State “to convince a jury that there
was an effort to terrorize or exact a concession from [the victim].” Regarding the domestic
assault charge, the court determined the evidence to be relevant as to motive and intent, as the
assault charge requires that “a person is supposed to be in a reasonable apprehension of a violent
injury.” The court found that the victim’s “reasonable apprehension is informed by [the] prior
acts” of violence. Counsel for petitioner thereafter requested that the evidence of past abuse be
limited to incidents occurring after the family moved to West Virginia in 1999, when petitioner
was seventeen years old.7

        Immediately following the victim’s trial testimony, the circuit court gave a limiting
instruction, cautioning jurors that the evidence of petitioner’s “prior acts is not admitted to prove
the defendant’s guilt as to the present charge. . . . [but] may only be considered by you for the
purpose of establishing the defendant’s motive, intent, or plan as it relates to each of these


                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.
       7
          We note that the State indicated that this evidence would also show a pattern of
behavior and would “show almost motive in a way[,]” purposes that are prohibited by Rule
404(b). However, given that the State also identified purposes that are clearly permitted under
the rule and that the circuit court specifically determined the evidence to be relevant to prove
such purposes, we find that there is no error in this regard.


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charges of kidnapping, domestic battery, and domestic assault.” The court further instructed that
the evidence

       may not be considered for other matters such as character or propensity to commit
       the crimes charged. . . . you may consider the evidence insofar as it tells us what
       [the victim] and the defendant were thinking the night that these events all took
       place but not to prove that the defendant is a bad person or that he has bad
       character or that he did the things he’s accused of on June 1st because he did
       something similar in the past.

        On appeal, petitioner argues that the admission of the victim’s testimony regarding past
incidents of petitioner’s verbal and physical abuse was prejudicial to his defense and admitted in
error, in violation of Rule 404(b), and that, without such evidence, he would not have been
convicted of the crimes charged.

       In syllabus point three of State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996), this
Court held that

       [i]t is presumed a defendant is protected from undue prejudice if the following
       requirements are met: (1) the prosecution offered the evidence for a proper
       purpose; (2) the evidence was relevant; (3) the trial court made 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; and (4) the trial court gave a limiting instruction.

        It is clear that the LaRock requirements were met in this case. The State offered the
victim’s testimony of petitioner’s past abuse to show absence of mistake. Further, the evidence
was clearly relevant to prove the elements of the crimes for which he was being tried. The circuit
court determined that the evidence was more probative than prejudicial, ensuring that evidence
of violent incidents occurring when petitioner was a child not be introduced and also finding that
the victim’s reaction to the assault at issue was informed by the past violence. Finally, the court
gave a limiting instruction immediately after the victim testified. We, thus, find that petitioner
was protected from undue prejudice and that the evidence was properly admitted under Rule
404(b).

        In his final assignment of error, petitioner argues that the evidence was insufficient to
support his convictions. Petitioner argues simply that the testimony of the victim and Officer
Neely that petitioner fled the scene as Neely approached him was inconsistent with the video
from the officer’s “dash camera” that showed petitioner calmly walking towards the officer’s
cruiser. Petitioner contends that the video proves that the testimony of both Neely and the victim
was false and that their credibility should have had minimal value. As a result, petitioner argues,
the evidence was insufficient to convict.

       We find no error. The Court’s review of a challenge to the sufficiency of the evidence
presented at trial was set forth in syllabus point one of State v. Guthrie, 194 W. Va. 657, 461
S.E.2d 163 (1995):

                                                5

        The function of an appellate court when reviewing the sufficiency of the evidence
        to support a criminal conviction is to examine the evidence admitted at trial to
        determine whether such evidence, if believed, is sufficient to convince a
        reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
        relevant inquiry is whether, after viewing the evidence in the light most favorable
        to the prosecution, any rational trier of fact could have found the essential
        elements of the crime proved beyond a reasonable doubt.

Furthermore,

        [a] criminal defendant challenging the sufficiency of the evidence to support a
        conviction takes on a heavy burden. An appellate court must review all the
        evidence, whether direct or circumstantial, in the light most favorable to the
        prosecution and must credit all inferences and credibility assessments that the jury
        might have drawn in favor of the prosecution. The evidence need not be
        inconsistent with every conclusion save that of guilt so long as the jury can find
        guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
        an appellate court. Finally, a jury verdict should be set aside only when the record
        contains no evidence, regardless of how it is weighed, from which the jury could
        find guilt beyond a reasonable doubt. To the extent that our prior cases are
        inconsistent, they are expressly overruled.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3.

        In this case, petitioner failed to include in the record on appeal a copy of the video that he
claims contradicts the testimony of the victim and Officer Neely. Therefore, it is impossible for
this Court to evaluate petitioner’s argument in this regard. In any event, it is clear that the jury
considered the testimony of these witnesses and determined they were credible. Viewing the
evidence in the light most favorable to the State, as we are required to do, we conclude that
petitioner has failed to carry the heavy burden of establishing that the evidence was insufficient
to support his convictions.

        For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

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

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