        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                              September 2017 Term

                                _______________                        FILED

                                                                 September 13, 2017

                                  No. 16-0666
                           released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK

                                _______________                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA


                         STATE OF WEST VIRGINIA,

                          Plaintiff Below, Respondent


                                       v.

                        MICHAEL L. BLICKENSTAFF,

                          Defendant Below, Petitioner


      ____________________________________________________________

                Appeal from the Circuit Court of Jefferson County

                    The Honorable David H. Sanders, Judge

                          Criminal Action No. 15-F-91


                                    AFFIRMED


      ____________________________________________________________

                          Submitted: September 6, 2017

                            Filed: September 13, 2017


Dana F. Eddy, Esq.                          Robert L. Hogan, Esq.
Director Public Defender Services           Deputy Attorney General
Scott E. Johnson, Esq.                      Charleston, West Virginia
Public Defender Services
Appellate Advocacy Division                 Brandon C. H. Sims, Esq.
Charleston, West Virginia                   Assistant Prosecutor
Counsel for the Petitioner                  Jefferson County Prosecuting Attorney
                                            Charles Town, West Virginia
                                            Counsel for the Respondent


JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



              1.      “An objection to a circuit court ruling that admits evidence must be

timely made and must state the specific ground of the objection, if the specific ground is

not apparent from the context.” Syl. Pt. 3, Perrine v. E.I. du Pont de Nemours & Co.,

225 W.Va. 482, 694 S.E.2d 815 (2010).

              2.      “To preserve an issue for appellate review, a party must articulate it

with such sufficient distinctiveness to alert a circuit court to the nature of the claimed

defect.” Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162

(1996).

              3.      “Failure to make timely and proper objection to remarks of counsel

made in the presence of the jury, during the trial of a case, constitutes a waiver of the

right to raise the question thereafter either in the trial court or in the appellate court.” Syl.

Pt. 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).

              4.      “It 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.” Syl. Pt. 3, State v. LaRock, 196 W.Va.

294, 470 S.E.2d 613 (1996).




                                                i
Justice Ketchum:


              The Defendant, Michael Blickenstaff, was indicted for kidnapping his ex-

girlfriend, Nicole M., after he allegedly drove her around for five hours at knifepoint.

Nicole M. did not physically resist the kidnapping.

              The State argued at trial that Nicole M. did not physically resist because she

feared Mr. Blickenstaff after he subjected her to domestic violence during their previous

relationship. It presented expert witness testimony that domestic violence victims are

often more compliant with their abusers out of fear. The State also introduced into

evidence Mr. Blickenstaff’s previous conviction for second-degree domestic assault

against Nicole M. At the end of his trial, Mr. Blickenstaff was convicted of kidnapping

and sentenced to life without parole.

              Mr. Blickenstaff argues that the trial court abused its discretion in the

following two ways: (1) it allowed the State’s expert witness to offer improper testimony;

and (2) it caused undue prejudice to his defense by admitting his previous conviction into

evidence. We find that Mr. Blickenstaff failed to timely and specifically object to the

expert witness’s testimony, and therefore, he waived this issue for appellate review. In

addition, we find no abuse of discretion in the circuit court’s admission of his previous

conviction. Therefore, we affirm Mr. Blickenstaff’s conviction and sentencing.




                                             1

                                   I.

                  FACTUAL AND PROCEDURAL BACKGROUND


              On the morning of August 25, 2014, Nicole M. was driving her four-year­

old daughter, E.M.,1 to daycare in their hometown of Smithburg, Maryland.                    Mr.

Blickenstaff, who was in town to visit E.M. (also his daughter), rode in the car’s front-

passenger seat. The car needed gas, and Nicole M. pulled into the gas station where the

alleged kidnapping began.

              Nicole M. testified that after the car stopped, Mr. Blickenstaff flashed his

knife at her. He said, “not to do anything stupid, that it was going to be the worst day of

[her] life, to get into the passenger seat, and he was taking over from here.” Nicole M.

did what Mr. Blickenstaff told her to do without putting up any physical resistance or

calling for help. E.M. was still in the car.

              Mr. Blickenstaff drove Nicole M. and E.M. around Maryland, West

Virginia, and Virginia for five hours.         When they crossed into West Virginia, Mr.

Blickenstaff threw Nicole M.’s cell phone out the car window and threatened to stab her.

He also told her he was going to carve his initials into her forehead, and when she

tearfully stated that she did not care what kind of lettering he used, he responded: “I like

it that you left it to the artist.” Fortunately, Mr. Blickenstaff did not carve his initials into

Nicole M.’s forehead. However, before leaving West Virginia, he punched her in the

              1
               Because E.M. is a child, we follow our practice under West Virginia Rule
of Appellate Procedure 40(e) and use her initials to refer to her. Because Nicole M. and
E.M. have the same last name, we refer to Nicole M. by her last-name initial. State v.
Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).


                                                2

mouth so forcefully that her tooth broke through her upper lip, and he cut her throat with

his knife, leaving visible marks. Finally, they left West Virginia for Maryland. He did

not physically harm E.M., who was in the car during this time.

              Mr. Blickenstaff, Nicole M., and E.M. arrived at Nicole M.’s apartment that

afternoon. Nicole M. reported her kidnapping the following day when her boss, who saw

the bruises from Mr. Blickenstaff’s punch and the knife-mark on her throat, persuaded

her to do so. By the time Nicole M. reported her kidnapping, Mr. Blickenstaff had

absconded from her apartment with E.M. The authorities conducted a search and found

E.M. with Mr. Blickenstaff at a Pennsylvania motel.          The authorities immediately

returned her to Nicole M.

              Mr. Blickenstaff was tried and convicted in Maryland on one count of false

imprisonment, and in West Virginia, he stood trial on one count of kidnapping. In his

kidnapping trial, the State addressed Nicole M.’s failure to physically resist by presenting

expert testimony from Katherine Spriggs, a program manager from Shenandoah

Women’s Center who works full-time with domestic violence victims. Ms. Spriggs

testified that victims of domestic violence are often more compliant with their abusers out

of fear, not consent. The State also introduced into evidence Mr. Blickenstaff’s previous

conviction for second-degree domestic assault against Nicole M.

              Before his trial, Mr. Blickenstaff filed a motion to exclude Ms. Spriggs’s

testimony. He claimed that her testimony as a whole would be irrelevant and unduly

prejudicial, but he provided no explanation as to why. In a separate motion, he also

objected to the introduction of his previous conviction into evidence. After a pretrial

                                             3

hearing on his motions, the trial court overruled Mr. Blickenstaff’s objections. Mr.

Blickenstaff did not object to Ms. Spriggs’s testimony at trial.

              At the end of his trial, Mr. Blickenstaff was convicted on his kidnapping

charge and sentenced to life without parole.        He now appeals his conviction and

sentencing.


                                        II.

                                STANDARD OF REVIEW



              We are asked to determine whether the trial court erred in the following two

ways: (1) permitting an expert witness to offer improper testimony; and (2) admitting Mr.

Blickenstaff’s previous conviction into evidence, thereby causing undue prejudice to his

defense. The standard of review for both assigned errors is abuse of discretion. As to the

expert witness’s testimony, we have provided: “The decision to admit or reject expert

evidence is committed to the sound discretion of a trial court, and the court’s

determinations are reviewable only for abuse of discretion.”2 Likewise, “we review for

an abuse of discretion the trial court’s conclusion that the ‘other acts’ evidence is more

probative than prejudicial under [West Virginia Rule of Evidence] 403.”3




              2
                  State v. LaRock¸ 196 W.Va. 294, 306, 470 S.E.2d 613, 625 (1996).
              3
                  LaRock, 196 W.Va. at 310-11, 470 S.E.2d at 629-30.


                                             4

                                          III.

                                       ANALYSIS


              Mr. Blickenstaff argues that his conviction and sentencing should be

reversed for the following two reasons: (1) the trial court permitted Katherine Spriggs, an

expert witness for the State, to offer improper testimony; and (2) it unduly prejudiced his

defense by admitting his previous conviction into evidence. Because Mr. Blickenstaff

did not raise a timely and specific objection to Ms. Spriggs’s testimony, we find that he

waived this issue for appellate review. Furthermore, we find no abuse of discretion in the

admission of his previous conviction. Therefore, we affirm Mr. Blickenstaff’s conviction

and sentencing.

                              A. Expert Witness Testimony

              Mr. Blickenstaff’s first argument pertains to the State’s expert witness, Ms.

Spriggs, who testified that victims of domestic violence, such as Nicole M., are often

more compliant with their abusers out of fear, not consent. On appeal, he complains that:

(a) she briefly discussed the lethality index – that is, a set of factors used by law

enforcement to determine whether a relationship may end in the abuser killing his/her

victim; and (b) she bolstered Nicole M.’s credibility.

              By contrast, the State argues that Mr. Blickenstaff failed to raise a timely

and specific objection in the trial court to Ms. Spriggs’s testimony, and therefore, he

waived his assigned errors regarding her testimony for appellate review. As we have

noted: “Our cases consistently have demonstrated that, in general, the law ministers to the

vigilant, not to those who sleep on their rights. . . . When a litigant deems himself or


                                             5

herself aggrieved . . . he or she ordinarily must object then and there or forfeit any right to

complain at a later time.”4

               Mr. Blickenstaff did not object to Ms. Spriggs’s testimony during his trial.

However, before trial, he filed a motion to exclude her testimony as a whole on the

grounds of relevancy and undue prejudice. He provided no explanation as to why her

testimony would be irrelevant or unduly prejudicial. In addition, after his trial, Mr.

Blickenstaff filed a motion for a new trial and a separate motion for a judgment of

acquittal partly based on Ms. Spriggs’s alleged bolstering of Nicole M.’s credibility. His

posttrial motions did not mention Ms. Spriggs’s brief discussion on the lethality index.

               Under West Virginia Rule of Evidence 103(a): “A party may claim error in

a ruling to admit . . . evidence only if . . . (1) . . . a party, on the record: (A) timely objects

or moves to strike; and (B) states the specific ground, unless it was apparent from the

context.”5 Likewise, we have held: “An objection to a circuit court ruling that admits

evidence must be timely made and must state the specific ground of the objection, if the

specific ground is not apparent from the context.”6 This rule is in place so that trial

courts have a fair opportunity to address legal errors before or as they arise, thereby




               4
                   LaRock, 196 W.Va. at 316, 470 S.E.2d. at 635.

               5
                   Emphasis added.

               6
              Syl. Pt. 3, Perrine v. E.I. du Pont de Nemours & Co., 225 W.Va. 482, 694

S.E.2d 815 (2010) (emphasis added).


                                                6

obviating the need for an appeal.7 Of course, this objective is more achievable when the

aggrieved party provides the trial court with timely and full disclosure of the reason(s) he

or she is objecting.8

              Generally, objections are waived if they are raised too late for the trial court

to address the alleged error, which is why we held that: “Failure to make timely and

proper objection to remarks of counsel made in the presence of the jury, during the trial

of a case, constitutes a waiver of the right to raise the question thereafter either in the trial

court or in the appellate court.”9 In the same vein, as to specificity, we have held: “To

preserve an issue for appellate review, a party must articulate it with such sufficient

distinctiveness to alert a circuit court to the nature of the claimed defect.”10 Indeed:

“Trial courts should not have to guess the nature of claimed defects. . . . [and] this Court




              7
                Louis J. Palmer, Robin J. Davis, & Franklin D. Cleckley, 1 Handbook on
EVIDENCE for West Virginia Lawyers §103.0[2][h] at 65(6th ed. 2015) (“The rationale
behind Rule 103 is to require full disclosure of the reasons why . . . an objection is being
pressed in the trial court, so that the trial judge is given a fair chance at an informed
ruling and the opponent has a meaningful opportunity to obviate any legal impediment
raised to the matters they present.”).
              8
                  Id.
              9
              Syl. Pt. 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945)
(emphasis added).
              10
               Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d
162 (1996) (emphasis added).


                                               7

should not have to examine with a fine tooth comb the lines of trial transcripts to discern

the true meaning of objections made at trial.”11

              With these principles in mind, we first address Mr. Blickenstaff’s pretrial

motion to exclude Ms. Spriggs’s testimony. He claimed in this motion that Ms. Spriggs’s

testimony, as a whole, would be irrelevant and unduly prejudicial, but he provided no

explanation as to why. At a hearing on his motion, he merely stated that: “[Ms. Spriggs

has] never spoken to either the Defendant or the victim. She’s just going to speak in

generalities. She has no idea of what – she’s a fact witness. She has nothing factual to

add of value.” Unsurprisingly then, the trial court’s pretrial ruling on Mr. Blickenstaff’s

motion addressed the broad grounds he raised in his motion, not the specific grounds he

now raises before this Court (her discussion on the lethality index and alleged bolstering

of Nicole M.’s credibility). In addition, Mr. Blickenstaff raised no objection to Ms.

Spriggs’s testimony at trial.

              On this record, we find that Mr. Blickenstaff’s pretrial motion did not alert

the trial court to the specific nature of his claimed defect, which did not afford the trial

court a fair opportunity to address his claimed legal errors. Therefore, it did not meet

Rule 103’s specificity requirement.

              Next, we examine Mr. Blickenstaff’s contention that it was error to allow

Ms. Spriggs to bolster Nicole M.’s credibility. He did not raise this issue until after his

trial – when it was too late for the trial court to address the alleged error. Therefore, his

              11
                   State v. Ladd, 210 W.Va. 413, 428-29, 557 S.E.2d 820, 835-36 (2001).


                                              8

posttrial objection to Ms. Spriggs bolstering Nicole M.’s credibility did not meet Rule

103’s timeliness requirement.

              Mr. Blickenstaff was required under West Virginia Rule of Evidence

103(a) to raise a timely and specific objection to Ms. Spriggs’s testimony. Because he

failed to do so, we find that he waived this issue for appellate review.12

                      B.     Mr. Blickenstaff’s Previous Conviction

              Mr. Blickenstaff also argues that the trial court erred by admitting his

previous conviction for domestic assault against Nicole M. into evidence. West Virginia

Rule of Evidence 404(b)13 states, in part:

                     (b) Crimes, Wrongs, or Other Acts.

                     (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.



              12
                 In addition to asserting the trial court erred by allowing Ms. Spriggs to
testify on the lethality index and bolster Nicole M.’s credibilty, Mr. Blickenstaff also
asserted that the trial court erred by allowing Ms. Spriggs to testify as to the effect of
domestic violence on victims. We disagree. Ms. Spriggs’s testimony on Nicole M.’s
state of mind during her kidnapping, as influenced by Mr. Blickenstaff’s previous
domestic violence against her, is relevant to whether she consented to her kidnapping.
              13
              Shortly after the alleged kidnapping, on September 2, 2014, Rule 404(b)
was amended in ways that do not affect this appeal’s outcome.


                                              9

Furthermore, we have held: “W.Va. R. Evid. 404(b) is an ‘inclusive rule’ in which all

relevant evidence involving other crimes or acts is admitted at trial unless the sole

purpose for the admission is to show criminal disposition.”14

              Before trial, the State filed a “Notice of Intent to Present Evidence Under

Rule 404(b),” revealing that it intended to use Mr. Blickenstaff’s previous domestic

assault conviction to show that Nicole M. failed to physically resist her kidnapping out of

fear, not consent.     In other words, the State sought to introduce Mr. Blickenstaff’s

previous conviction to establish that Nicole M. was kidnapped against her will.

              Mr. Blickenstaff asserts the trial court unduly prejudiced his defense by

admitting his previous conviction. To this point, we have held:

                     It 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.15

We find that all the aforementioned requirements were met; therefore, Mr. Blickenstaff’s

argument that the trial court erred by admitting his previous conviction is unpersuasive.

              First, Mr. Blickenstaff’s previous conviction was admitted for a proper

purpose, and it was relevant for that purpose. We have held: “Where the lack of consent

              14
                   State v. Edward Charles L., 183 W.Va. 641, 647, 398 S.E.2d 123, 129
(1990).
              15
                   Syl. Pt. 3, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).


                                              10

is an element of the crime, we have recognized that evidence of a defendant’s prior

violent behavior or incidents of bodily harm toward the victim or others of which the

victim is aware may be admissible to show that her actions were not consensual, but were

induced by fear.” 16 Lack of consent is an element of kidnapping, so Mr. Blickenstaff’s

previous domestic violence against Nicole M. may be admitted to show that her actions

during her kidnapping were induced by fear, not consent. Furthermore, it is undisputed

that the trial court issued a limiting instruction to the jury when Mr. Blickenstaff’s

previous conviction was admitted into evidence, and the limiting instruction was repeated

in the trial court’s general charge to the jury at the conclusion of the evidence.

              What remains then, is whether the trial court made an on-the-record

determination that the previous conviction’s probative value was not substantially

outweighed by its potential for unfair prejudice. As to this factor, we have stated: “The

balancing of probative value against unfair prejudice is weighed in favor of

admissibility[.] . . . This Court reviews disputed evidence in the light most favorable to its

proponent, maximizing its probative value and minimizing its prejudicial effects.”17

              Mr. Blickenstaff argues that the trial court erred in its on-the-record

determination because evidence of his previous conviction was not necessary. That is, in

light of Nicole M.’s testimony that Mr. Blickenstaff pulled a knife on her when he



              16
                   State v. Hanna, 180 W.Va. 598, 607, 378 S.E.2d 640, 649 (1989).
              17
                   LaRock, 196 W.Va. at 312, 470 S.E.2d at 631.


                                             11

kidnapped her, his previous instance of domestic violence was not needed to establish

that she was in fear at that time.

                 We disagree with Mr. Blickenstaff’s argument.        Evidence of previous

misconduct is not made inadmissible merely because alternative evidence is available.18

In a similar case, State v. Rollins,19 which involved a defendant’s trial for murdering his

wife, the defendant claimed that his wife’s death was an accident.            To rebut the

defendant’s claim, the State introduced evidence that the defendant had physically abused

his wife on previous occasions.20 When the defendant, on appeal, asserted that evidence

of his previous domestic abuse was not necessary in light of a witness’s testimony that he

confessed to killing his wife, we found no abuse of discretion.21 We adopted the circuit

court’s reasoning that: “With respect to other forms of proof, . . . it appears that there is

other evidence to show that [Mrs.] Rollins’s death was not accidental, but the evidence of

prior abuse is the best proof of the nature of the relationship between the Defendant and

[his wife].”22



                 18
                See Old Chief v. U.S., 519 U.S. 172, 183 n.7 (1997) (Evidence of
previous misconduct is not unduly prejudicial merely because there was “some
alternative means of proof that the prosecution in its broad discretion chose not to rely
on.”).
                 19
                      233 W.Va. 715, 760 S.E.2d 529 (2014).
                 20
                      Rollins, 233 W.Va. at 737, 760 S.E.2d at 551.
                 21
                      Id., 233 W.Va. at 738, 760 S.E.2d at 552.
                 22
                      Id., 233 W.Va. at 737, 760 S.E.2d at 551.


                                                 12

              We find no meaningful distinction between this case and Rollins. Mr.

Blickenstaff disputed that he took Nicole M. against her will, an issue which would have

been dispositive in his kidnapping trial had he prevailed. And because he attacked the

credibility of Nicole M.’s testimony, alternative forms of proof became more necessary

for the State to prove her lack of consent. Likewise, his previous conviction was the best

proof of Nicole M.’s state of mind during her kidnapping. We find no abuse of discretion

in the trial court’s admission of Mr. Blickenstaff’s previous conviction for second-degree

domestic assault in his kidnapping trial.


                                         IV.

                                     CONCLUSION



              We find no reversible error in the trial court’s handling of the State’s expert

witness or in its admission of Mr. Blickenstaff’s previous conviction into evidence.

Therefore, we affirm Mr. Blickenstaff’s conviction and sentencing.

                                                                                  Affirmed.




                                             13

