                                  STATE OF WEST VIRGINIA
                                SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent
                                                                                      FILED
vs.) No. 17-0636 (Berkeley County, 16-F-50)                                       March 18, 2019
                                                                                     released at 3:00 p.m.
                                                                                 EDYTHE NASH GAISER, CLERK
Clairesse Felipe,                                                                SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

        Clairesse Felipe1 was sentenced to nine to forty-five years in the penitentiary on four felony
counts2 arising from her involvement in a deadly automobile crash in 2015. On appeal, Felipe
raises five assignments of error that she contends merit reversal of her conviction and retrial. The
State of West Virginia3 urges us to uphold Felipe’s conviction and sentence.

        Upon consideration of the standards of review, the briefs, the record presented, and oral
argument, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule
21 of the Rules of Appellate Procedure.

                                  I. Facts and Procedural History

        On the night of July 24, 2015, Clairesse Felipe (Felipe) drove Joeimarie Hoffman
(Hoffman), Ashley Jenkins (Jenkins) and Ashley Long (Long) to Stiletto’s, a nightclub in
Martinsburg, West Virginia, in Felipe’s vehicle. Early the next morning, the four returned to
Felipe’s car, with Long in the driver’s seat, Hoffman in the passenger’s seat, and Felipe and Jenkins
in the backseat. After leaving the club’s parking lot, Felipe and Long switched places, putting
Felipe in the driver’s seat, and Jenkins and Long in the backseat.4 Hoffman remained in the front
passenger seat.


       1
           Felipe is represented by counsel Phillip C. Isner, Esq., and David C. Fuellhart, Esq.
       2
         Felipe was also sentenced to two years and one hundred days in jail on four misdemeanor
convictions.
       3
          Patrick Morrissey, Esq., Attorney General, Robert L. Hogan, Esq., Assistant Attorney
General, and Shannon Kiser, Esq., Assistant Attorney General, represent the State of West
Virginia.
       4
         At trial, Felipe maintained that she was not the driving the vehicle when it crashed. On
appeal, Felipe does not challenge the sufficiency of the evidence. Even if she did raise such a
challenge, we would still view the evidence in the light most favorable to the prosecution because
                                                  1
       After Felipe sped away, she clipped the rear of another automobile and lost control of her
own. Felipe’s vehicle hit a telephone pole and a concrete wall, then rolled and flipped. Once the
automobile stopped, Felipe and a seriously-injured Hoffman escaped before the vehicle caught
fire. Long and Jenkins did not escape and died in the fire. A passing motorist stopped for Felipe
and Hoffman. Felipe asked the driver to take them to Frederick, Maryland, but the driver refused
and instead dropped them off at a nearby Sheetz convenience store. While at Sheetz, Felipe told
Hoffman to tell authorities that Hoffman, Jenkins, or Long—but not Felipe—was driving her
automobile.

         State Trooper M.W. Kennedy II (Trooper Kennedy) was on his way to the accident scene
when dispatch redirected him to Sheetz. He arrived there at 3:34 a.m. Police and paramedics were
already there, treating Hoffman in an ambulance. Felipe stood at the rear of the ambulance,
refusing medical treatment. Trooper Kennedy approached Felipe and asked her if she had been in
an accident. She confirmed that she thought she had been. He asked if she knew who had been
driving. Felipe said she did not know and that she could not remember anything else. Trooper
Kennedy told her to stay by the road or the ambulance. He then spoke briefly to Hoffman, who
stated that she had been in a vehicle accident and that Felipe was the driver. Hoffman was later
air-lifted for emergency treatment. Her injuries were consistent with those caused by a passenger-
side seat belt.

        A deputy authorized Felipe to go inside and freshen up in the Sheetz bathroom. When
Felipe did not return, it became apparent that she had fled. Trooper Kennedy returned to his cruiser
and went to a nearby 7-11 store, where a man waved him down. Trooper Kennedy found Felipe
inside the store. He arrested her for obstructing justice, cuffed her, and put her in his cruiser.
Felipe became belligerent. Trooper Kennedy’s cruiser did not have a cage in it, so he took Felipe
back to the accident scene and put her in the cruiser of his colleague, Trooper David Simerly
(Trooper Simerly), which had a cage. Once in Trooper Simerly’s cruiser, Felipe fell asleep.

        Trooper Simerly took Felipe to the Berkeley Medical Center for medical clearance and a
forensic blood draw. Upon arrival, Trooper Simerly woke Felipe, who then began asking him
what was happening at the crash scene and how her friends were. Trooper Simerly watched as
Felipe correctly answered hospital staff’s orientation questions about the time, her location, and
the identity of the president of the United States. Based on the results of the forensic blood draw,
Felipe’s blood alcohol content was .17.

       While at Berkeley Medical Center, Felipe also made statements to Trooper Simerly that
led him to believe she was “feeling guilty,” so, at 5:49 a.m., he read Felipe her Miranda5 rights.
She indicated that she understood those rights, then waived them. Trooper Simerly also read Felipe
the West Virginia Implied Consent statement, which she signed. She then made a series of
statements and admissions, including that: (1) she should not have been driving; (2) she originally
had a designated driver, but that person was too drunk to drive; (3) her friends had made her drive;


it prevailed at the jury trial, below. See Syl. Pt. 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d
163 (1995). Therefore, we present the facts in the light most favorable to the State.
       5
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                 2
(4) at the time of the crash, Jenkins and Long were in the vehicle’s rear seat and Hoffman was in
the passenger seat; (5) “[she] wasn’t about to drive all the way to Frederick under the influence,
that’s why [she] got a reservation at the Hamptons. [She] was just going to drive there and [her]
friends were going to take [her] car from there,”6 (6) she was drunk; (7) she could finish an entire
fifth of liquor by herself; and (8) she had a prior DUI from Washington, D.C.

        Trooper Simerly took Felipe to the Eastern Regional Jail. On the way there, Felipe stated
that she wished her friends had not told her that they wanted to go to Denny’s because she was “a
hoe for food.” If she had not been so hungry, she stated, she would not have been speeding.

        In February 2016, Felipe was indicted on two counts of felony DUI resulting in death,
stemming from the deaths of Long and Jenkins; felony DUI resulting in serious bodily injury,
stemming from the injuries sustained by Hoffman; felony leaving the scene of an accident resulting
in death; leaving the scene of an accident with property damage; reckless driving, obstructing an
officer; and fleeing law enforcement by means other than a vehicle.

        Felipe filed several motions in limine. First, she moved to suppress the statements she
made to Trooper Simerly on the morning of July 25, 2015 because she claimed she was too
intoxicated to have made a knowing and voluntary waiver of her Miranda rights. Second, she
moved to exclude the videotaped deposition of Trooper Kennedy, arguing that she had been unable
to cross-examine him regarding several documents that the State had not given to her counsel
before the deposition. The circuit court denied Felipe’s motion to suppress her July 25, 2015
statements and to exclude Trooper Kennedy’s videotaped deposition.7 The circuit court did
exclude, however, and without objection from the State, a recorded statement Trooper Kennedy
took from Felipe on July 26, 2015 in the Eastern Regional Jail. Felipe had already been arraigned
and requested counsel when Trooper Kennedy took the statement, but he did not know that at the
time. All agreed that Felipe’s statement could not be used in the State’s case-in-chief. Finally, the
parties stipulated that Felipe’s prior criminal record was not admissible at trial.

        Trial began on March 21, 2017. During opening statements, Felipe’s counsel described
her to the jury as “a 34-year-old woman; she has a daughter; she’s from a good family. [Felipe]
does not have a perfect background, okay, or a perfect record.” Felipe’s counsel also told the jury
that they would “hear an audio interview that Trooper Kennedy had with [Felipe the] day after the
crash when she was incarcerated.” At a sidebar, the circuit court asked the State if it wished to
move for a mistrial, but the State declined. Trial proceeded, with the State offering testimony from
Hoffman and Trooper Simerly, among others, and Trooper Kennedy’s previously-recorded
deposition.




       6
           Felipe also asked Trooper Simerly how she might cancel that hotel reservation.
       7
        Trooper Kennedy was unable to appear for trial due to military service. West Virginia
Rule of Criminal Procedure 15 permits testimony via deposition in exceptional circumstances.
Felipe does not challenge that Trooper Kennedy’s military service presents a justifying
circumstance.

                                                 3
        Felipe testified on her own behalf. On cross-examination, she denied driving the vehicle
when it crashed. While cross-examining Felipe, the State moved to admit portions of Felipe’s July
26, 2015 recorded statement for impeachment purposes. Felipe’s counsel objected that the
statement was beyond the scope of direct examination, but the circuit court granted the State’s
motion. The circuit court did not caution the jury that those portions of Felipe’s statement were
not admissible as evidence of guilt, only as impeachment. But, neither Felipe’s counsel nor the
State requested that instruction. Later, during deliberations, the jury asked whether the audio
recording was submitted into evidence, and the circuit court responded that the jury could not have
the recording, and that it would have to recall the evidence.

        The jury returned a guilty verdict on all eight counts. The circuit court conducted a
sentencing hearing in May of 2017 and entered an order in June sentencing Felipe as follows:
Count One, Felony DUI Resulting in Death, 3–15 years, $1,000 fine; Count Two, Felony DUI
Resulting in Death, 3–15 years, $1,000 fine; Count Three, Felony DUI Resulting in Serious Bodily
Injury, 2–10 years, $1,000 fine; Felony Leaving the Scene of an Accident Resulting in Death, 1–
5 years; Leaving the Scene of an Accident with Property Damage, 10 days in jail; Reckless
Driving, 90 days in jail; Obstructing an Officer, 1 year in jail; Fleeing a Law Enforcement Officer
By Means Other Than Vehicle, 1 year in jail. The circuit court ordered that Felipe serve all
sentences consecutively and that she pay $24,637.34 in restitution. Felipe now appeals from that
sentencing order.

                                          II. Analysis

       Felipe poses five assignments of error. First, she argues that the circuit court erred by
admitting the statements she made to Trooper Simerly at Berkeley Medical Center because she
was too intoxicated to waive her Miranda rights voluntarily. Second, she argues that the circuit
court erred when it did not give the jury a limiting instruction after admitting her previously-
excluded recorded statement for impeachment purposes. Third, she argues that the circuit court
erred by admitting Trooper Kennedy’s video deposition when Felipe did not have an opportunity
to cross-examine him regarding certain evidence. Fourth, she argues that the circuit court
committed plain error when it did not declare a mistrial after Felipe’s counsel referenced her
“record” during his opening statement. Finally, Felipe argues that the circuit court committed
plain error by not declaring a mistrial after Felipe’s counsel mentioned during his opening
statement that the jury would hear Felipe’s audio statement, which the circuit court had already
excluded from evidence.

A. Assignments of Error One and Three

       Before trial, the circuit court denied Felipe’s motions to suppress incriminating statements
she made to Trooper Simerly the morning following the crash and Trooper Kennedy’s video
deposition. Felipe now challenges those rulings in her first and third assigned errors.

       (1) Assignment of Error One

       Felipe argues that the circuit court erred by denying her motion to suppress incriminating
statements she made to Trooper Simerly while at the medical center and en route to the Eastern
Regional Jail. Felipe contends that she was too intoxicated at the time to have voluntarily waived

                                                4
her Miranda rights. The State responds that the circuit court correctly concluded that, based on
the totality of the circumstances, Felipe was not so intoxicated that her waiver was involuntary.

         We have held that “[w]hether an extrajudicial inculpatory statement is voluntary or the
result of coercive police activity is a legal question to be determined from a review of the totality
of the circumstances.”8 As to intoxication, we have held that “[a] claim of intoxication may bear
upon the voluntariness of a defendant’s confession, but, unless the degree of intoxication is such
that it is obvious that the defendant lacked the capacity to voluntarily and intelligently waive his
rights, the confession will not be rendered inadmissible.”9

        When reviewing a circuit court’s suppression decision, we apply a multi-layered standard
of review.

                 [W]e first review a circuit court’s findings of fact when ruling on a
                 motion to suppress evidence under the clearly erroneous standard.
                 Second, we review de novo questions of law and the circuit court’s
                 ultimate conclusion as to the constitutionality of the law
                 enforcement action. Under the clearly erroneous standard, a circuit
                 court’s decision ordinarily will be affirmed unless it is unsupported
                 by substantial evidence; based on an erroneous interpretation of
                 applicable law; or, in light of the entire record, this Court is left with
                 a firm and definite conviction that a mistake has been made. When
                 we review the denial of a motion to suppress, we consider the
                 evidence in the light most favorable to the prosecution.[10]

       We find substantial evidence in the record to support the circuit court’s ruling that Felipe
was not so intoxicated that her Miranda waiver was involuntary. In considering the circumstances
surrounding Felipe’s waiver, the circuit court expressly recognized Felipe’s decision to flee from
the accident scene and her later decision to flee from Trooper Kennedy at Sheetz. It also
acknowledged that Felipe rested in Trooper Simerly’s car on the way from the accident scene to
the medical center, a trip that lasted approximately fifteen to thirty minutes. And, the circuit court
recognized that Felipe was cognizant of her situation and surroundings when questioned by
medical center staff.

       Additionally, the circuit court heard Trooper Kennedy’s testimony at the suppression
hearing that, even at Sheetz, Felipe “seemed aware of herself and the general time and what was
going on around her.” While Trooper Kennedy acknowledged that Felipe “was definitely
intoxicated,” he also testified that “[s]he wasn’t completely bewildered,” that she conversed with
paramedics and “seemed very much aware of where she was and what was going on.”


       8
           Syl. Pt. 2, State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995).
       9
           Syl. Pt. 1, State v. Hall, 174 W. Va. 599, 328 S.E.2d 206 (1985).
       10
         State v. Lilly, 194 W. Va. 595, 600, 461 S.E.2d 101, 106 (1995) (internal citations and
notes omitted); see also State v. Farley, 192 W. Va. 247, 252–53, 452 S.E.2d 50, 55 (1994).

                                                     5
        Felipe argues that her .17 blood-alcohol level necessarily means that any waiver cannot
have been voluntarily made, but offers no authority supporting such a bright-line rule. Regardless,
in light of Felipe’s flight from the crash scene and Sheetz, responsiveness, and orientation
following the crash, we see no error in the circuit court’s conclusion that the totality of the
circumstances demonstrated Felipe’s capacity to voluntarily waive her Miranda rights,
notwithstanding her intoxication.11

       (2) Assignment of Error Three

        Felipe argues that the circuit court’s decision to permit the jury to view Trooper Kennedy’s
videotaped deposition violated her right of meaningful cross-examination12 and West Virginia
Rule of Evidence 403 because information regarding Hoffman’s injuries and criminal record and
the forensic report of Felipe’s blood alcohol level were not disclosed by the State until after the
deposition took place. The State responds that Felipe’s counsel fully deposed Trooper Kennedy
in Felipe’s presence. The State further argues that, even though information pertaining to
Hoffman’s injuries and criminal record and the forensic report was disclosed after Trooper
Kennedy’s deposition, Felipe was not denied of the opportunity for meaningful cross-
examination.13

       We review the circuit court’s decision to admit Trooper Kennedy’s deposition testimony
for abuse of discretion, although we review de novo the legal analysis underlying the decision.14

       We find no abuse of discretion in the circuit court’s denial of Felipe’s motion to exclude
Trooper Kennedy’s video deposition from evidence. First, Felipe’s counsel, Mr. Lambert, did
cross-examine Trooper Kennedy regarding the forensic report during his deposition for
approximately two minutes.

      Second, we agree with the State that cross-examining Trooper Kennedy regarding
Hoffman’s injuries and criminal record could not have proved meaningful. As the State observes,
Trooper Kennedy is not a medical professional and he did not provide medical treatment to
Hoffman. On the other hand, Hoffman testified at trial regarding her injuries and specifically

       11
          See State v. Depew, No. 13-1214, 2014 WL 5546062, *2 (W. Va. Nov. 3, 2014) (“The
circuit court recognized that just because an individual has used marijuana does not mean they are
intoxicated or incapable of giving a statement.”); State v. Moore, 193 W. Va. 642, 648, 457 S.E.2d
801, 807 (1995) (affirming circuit court’s denial of suppression motion where defendant,
“[d]espite mild retardation and intoxication . . . still had the presence of mind to give the officer
who initially detained him on the scene a fictitious name”); and State v. Hall, 174 W. Va. 599,
600, 328 S.E.2d 206, 208 (1985) (affirming circuit court’s denial of suppression motion where
arresting officers indicated that defendant “appeared rational and coherent” when they arrived at
crime scene).
       12
            See Syl. Pt. 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006).
       13
            See Syl. Pt. 1, State v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).
       14
            Guthrie, 194 W. Va. at 680, 461 S.E.2d at 186 (citations omitted).

                                                  6
testified that some of them were caused by a passenger-side seatbelt. On cross-examination,
Felipe’s counsel questioned Hoffman about her “seatbelt injury.” We simply do not see how
questioning Trooper Kennedy on this issue could have yielded more meaningful testimony.

        Likewise, Felipe does not explain how the availability of Hoffman’s criminal record would
have affected her cross-examination of Trooper Kennedy. Again, Hoffman testified at trial, so if
that record had any utility, it would have been useful with Hoffman and not with Trooper Kennedy.
For those reasons, we find that the circuit court did not abuse its discretion by denying Felipe’s
motion to exclude Trooper Kennedy’s videotaped deposition.

B. Assignments of Error Two, Four, and Five

        Because Felipe’s trial counsel either made the alleged error or did not make timely
objections below, Felipe’s second, fourth, and fifth assigned errors are reviewable only for plain
error.15 “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.”16 “To be ‘plain,’ an error must be ‘clear’ or ‘obvious.’”17

       (1) Assignment of Error Two

        We turn first to Felipe’s second assigned error, the circuit court’s failure to give the jury a
limiting instruction after admitting for impeachment purposes portions of Felipe’s previously-
excluded, July 26, 2015 recorded statement. In State v. Goodmon, we held that:

                          [w]here a person who has been accused of committing a
                  crime makes a voluntary statement that is inadmissible as evidence
                  in the State’s case in chief because the statement was made after the
                  accused had requested a lawyer, the statement may be admissible
                  solely for impeachment purposes when the accused takes the stand
                  at his trial and offers testimony contradicting the prior voluntary
                  statement knowing that such prior voluntary statement is
                  inadmissible as evidence in the State’s case in chief.[18]

        Felipe acknowledges that, under Goodmon, her recorded statement was admissible for
impeachment purposes. She argues, however, that the lack of a jury instruction is plain error
meriting reversal. We disagree. Rule 105 of the West Virginia Rules of Evidence (“Limiting
Evidence That Is Not Admissible Against Other Parties or for Other Purposes”) states: “If the
court admits evidence that is admissible against a party or for a purpose—but not against another
party or for another purpose—the court, on timely request, must restrict the evidence to its proper

       15
            See Syl. Pt. 7, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
       16
            Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
       17
            Id. at Syl. Pt. 8, in part.
       18
            Syl. Pt. 4, State v. Goodmon, 170 W. Va. 123, 290 S.E.2d 260 (1981).

                                                   7
scope and instruct the jury accordingly.”19 Here, Felipe’s counsel did not make a “timely request”
to the circuit court to instruct the jury on the limited purpose for which Felipe’s recorded statement
was admitted. Accordingly, the plain error doctrine is not triggered, here, as the circuit court did
not err under Rule 105.

        Moreover, even if the circuit court did err, the error was not plain. Felipe cites Oregon v.
Hass20, Harris v. New York21, and Goodmon22 for the proposition that a limiting instruction is
required when otherwise inadmissible statements are admitted for impeachment purposes. In each
of those cases, the appellate court observed that the trial court issued a limiting instruction
following the introduction of the otherwise inadmissible statements. But, the courts did not
explicitly instruct future trial courts to do the same. And, in Haas, defense counsel specifically
requested the trial court to instruct the jury that the defendant’s prior statement should not be
considered evidence of his guilt. Thus, counsel in that case properly preserved the issue for full
review on direct appeal, which is not the case here.23

        Felipe also cites the following language from our 1990 decision, State v. Collins,24 to
support her contention that the circuit court erred plainly: “Moreover, it is apparent from McGee
that the trial court has an obligation to instruct the jury that the impeaching testimony may only be
considered as bearing on the witness’s credibility and not as substantive evidence.” That quoted
language from Collins, however, arose in the wholly different context of the admission of a
witness’s prior inconsistent statement for impeachment purposes and the Court did not elevate it
to a syllabus point. In sum, Felipe’s second assigned error does not merit reversal under the plain
error doctrine.


       19
            W. Va. R. of Evid. 105 (emphasis added).
       20
           420 U.S. 714, 717 (1975) (“The trial court, at the request of the defense, then advised
the jury that the portion of Officer Osterholme’s testimony describing the statement made by Hass
to him ‘may not be used by you as proof of the Defendant’s guilt . . . but you may consider that
testimony only as it bears on the (credibility) of the Defendant as a witness when he testified on
the witness stand.’”).
       21
           401 U.S. 222, 223 (1971) (“The trial judge instructed the jury that the statements
attributed to petitioner by the prosecution could be considered only in passing on petitioner’s
credibility and not as evidence of guilt.”).
       22
            170 W. Va. at 123, 290 S.E.2d at 260.
       23
         See Haas, 420 U.S. at 717. It is not apparent from the opinions in Harris or Goodmon
whether defense counsel requested a limiting instruction regarding the use of the defendant’s
previously excluded statements for impeachment, only.
       24
           State v. Collins, 186 W. Va. 1, 18, 409 S.E.2d 181, 189 (1990) (citing Syl., State v.
McGee, 160 W. Va. 1, 230 S.E.2d 832 (1976) (recognizing where defendant’s credibility is
impeached by evidence of prior criminal conviction, trial court must use a balancing test and
instruct jury sua sponte that evidence is solely for impeachment purposes)).

                                                    8
       (2) Assignment of Error Four

        Felipe’s fourth assignment of error is also subject to plain error review. During opening
statements, Felipe’s counsel said, “[Felipe] does not have a perfect background, okay, or a perfect
record.” Felipe argues that this reference violates the circuit court’s ruling that Felipe’s criminal
history was inadmissible and West Virginia Rule of Evidence 404(b)(1).25 The State responds that
any reference to Felipe’s criminal records was a “passing remark” that does not amount to error,
did not prejudice Felipe, and did not alter the outcome of the trial.

        Felipe’s counsel’s remark was vague and broad. He did not use the word “criminal.”
Rather, he told the jury that she did not have a “perfect background” or a “perfect record.” Neither
of those phrases necessarily communicated to the jury that Felipe’s background or record was
imperfect because of prior criminal acts. We agree with the State that Felipe’s counsel’s remarks
were meant to humanize his client, and to acknowledge that she may be less than perfect,26 which
are both common goals for a defense counsel’s opening statement. Again, given the vagueness of
the reference to Felipe’s “record,” to the extent counsel erred, it was not plain, and so does not
merit reversal of Felipe’s conviction.

       (3) Assignment of Error Five

       Plain error review also applies to Felipe’s fifth assignment of error. During opening
statements, Felipe’s counsel told the jury that they would hear “an audio interview that Trooper
Kennedy had with [Felipe] the day after the crash when she was incarcerated.” Defense counsel
did not offer any description of the content of that statement. Rather, he merely referenced its
existence. The audio interview was, as of the time of opening statements, inadmissible.

         Trial counsel’s statement, however, cannot be an error because Felipe ultimately chose to
testify on her own behalf, a choice that opened the door under Goodmon27 for the State to introduce
Felipe’s otherwise-inadmissible recorded statement for impeachment purposes. So, while Felipe’s
recorded statement was inadmissible when trial counsel briefly referenced it during opening
statements, it was admissible for impeachment later in the trial by virtue of Felipe’s own testimony.

        For the reasons discussed above, we affirm the June 26, 2017 sentencing order of the
Circuit Court of Berkeley County.

                                                                                          Affirmed.



       25
         Rule 404(b)(1) states: “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.”
       26
           We also agree with the State that “some defense counsel might wield [this] tool more
artfully than Felipe’s trial counsel did in this instance.”
       27
            Syl. Pt. 4, Goodmon, 170 W. Va. at 123, 290 S.E.2d at 260.

                                                 9
ISSUED: March 18, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




                                    10
