                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA,
                                                  FILED
Plaintiff Below, Respondent                                             May 16, 2013

                                                                        released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK
vs.) No. 11-1384 (Mercer County 09-F-154-OA)                          SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA

ALAN C.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION

               The petitioner herein and defendant below, Alan C.1 (hereinafter “the
petitioner”), was convicted by a jury on two counts of wanton endangerment; one count of
domestic battery; and three counts of child abuse by a parent, guardian, or custodian resulting
in bodily injury. The petitioner was re-sentenced for purposes of appeal by order dated
August 26, 2011, by the Circuit Court of Mercer County. Before this Court, the petitioner
argues that the lower court erred in allowing evidence of prior bad acts to be introduced into
his trial. Based upon the parties’ written briefs and oral arguments, the appendix record
designated for our consideration, and the pertinent authorities, we determine that the circuit
court committed no prejudicial error and is, hereby, affirmed. This Court further finds that
this case presents no new or significant questions of law; therefore, it will be disposed of
through a memorandum decision as contemplated under Rule 21 of the Revised Rules of
Appellate Procedure.

               On June 6, 2009, a grand jury indicted the petitioner on the following charges:
three counts of domestic battery; three counts of child abuse resulting in serious bodily
injury; three counts of wanton endangerment; one count of child neglect resulting in bodily
injury; and one count of a felon in possession of a firearm. Leading up to the trial, on



               1
                 “We follow our past practice in . . . cases which involve sensitive facts and do
not utilize the last names of the parties.” State ex rel. West Virginia Dep’t of Human Servs.
v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations omitted).
See also State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1
(1990) (“Consistent with our practice in cases involving sensitive matters, we use the
victim’s initials. Since, in this case, the victim . . . [is] related to the [petitioner], we have
referred to the [petitioner] by his last name initial.” (citations omitted)).
January 19, 2010, the State provided notice2 that it intended to use evidence of prior bad acts
pursuant to W. Va. Rules of Evidence, Rule 404(b). The proposed evidence related to earlier
acts committed by the petitioner over a span of seven years against his prior family members,
which included a misdemeanor conviction for domestic battery.3 A McGinnis4 hearing was
held March 12, 2010, wherein the State produced three witnesses: the petitioner’s ex-wife
and his two stepchildren. At the hearing, the State argued that the prior bad acts evidence
was offered
              to show the motive and intent and plan of the [petitioner] to use
              mental, emotional, and physical abuse to totally dominate and
              control his [prior] family. . . . and the State’s position is that[ the
              petitioner’s desire to dominate and control his family is] the
              reasoning behind the extreme emotional, physical, and mental
              abuse suffered by the victims in this [present] case.
The petitioner’s counsel argued that the evidence did not show motive, intent, or a plan, and,
that it was more prejudicial than probative. Further, the petitioner’s counsel argued that the
time frame of events that occurred between 1991 and 1995 was too far removed to be
probative.

              Thereafter, on March 24, 2010, the circuit court ruled that the State’s intended
bad act evidence would be admissible at trial for the sole purpose of showing the petitioner’s
common plan to establish domination and control of his family. The trial court found by a
preponderance of the evidence that the acts occurred and that the Petitioner committed them.

              2
                The State provided a previous notice of intent to use other prior bad act
evidence of additional, uncharged, acts that the petitioner had committed against the current
victims under principles of res gestae. After a hearing and further research, the trial court
ruled that the res gestae evidence presented by the victims of the current charged offenses
was so “inextricably intertwined” with the indicted offenses that it was admissible without
analysis pursuant to Rule 404(b). See State v. Dennis, 216 W. Va. 331, 607 S.E.2d 437
(2004). The introduction of the uncharged abusive acts against the current victims from 2004
to 2008 was “to provide the jury with a complete story of what the victims endured.” The
petitioner did not contest the trial court’s ruling on the res gestae evidence and the issue is
not before this Court for review.
              3
               The conviction resulted from a severe spanking of a child, to which the
petitioner pled guilty. As a result of this incident, the petitioner’s ex-wife ended the
relationship and took her children with her to a domestic violence shelter.
              4
                  See State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), discussed
infra.

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The lower court also found that the acts were to be admitted for a legitimate purpose: to
prove the petitioner’s common plan to commit the alleged crimes in the present case. Finally,
the trial court determined that the probative value of the evidence was not substantially
outweighed by any prejudicial effect. With specific regard to the legitimate purpose, the
lower court stated:
               the Court FINDS that all of the charges are interconnected in
               that they are all premised upon the alleged systematic abuse
               from the [petitioner]. In essence, the [petitioner’s] alleged
               conduct in the prior case and the [petitioner’s] alleged conduct
               in the current case indicates a common pattern/plan of abuse in
               which the [petitioner’s] intentions can be inferred for purposes
               of control and domination.

                       Therefore, the Court FINDS that the prior criminal plea
               to Domestic Battery, and the bad acts allegedly committed by
               the [petitioner] are relevant evidence in that the testimonies from
               [the prior family] regarding the [petitioner’s] common plan for
               abuse based upon their experiences/direct knowledge have a
               tendency to make the [petitioner’s] overall plan in his personal
               relationships generally (including the one at issue in this case),
               as well as his intent to commit the crimes for which he is
               charged more probable. Accordingly, the Court FINDS and
               CONCLUDES that the State articulated a specific and relevant
               purpose for the admission of the 404(b) evidence that does not
               involve the prohibited inference from character to conduct.

                  The petitioner’s trial began March 30, 2010. During the trial, the circuit court
allowed evidence pertaining to the petitioner’s prior family relations, and the petitioner’s
conduct towards those persons from 1992 to 1997. This conduct concerned neither the
persons nor the criminal charges at issue in the trial. Moreover, evidence was introduced
regarding alleged abusive conduct that occurred from 2004 to 2008 by the petitioner towards
the persons involved in the current trial. While these actions were made against the same
victims of the charged acts at issue in the trial, this conduct had not resulted in any criminal
charges. The circuit court permitted this evidence to show that the petitioner acted with a
common plan and, accordingly, provided a limiting instruction to the jury. The petitioner’s
ex-wife and former stepchildren, who were not the victims of the conduct being considered
at trial, testified about their past relationships with the petitioner and the nature of his abuse
towards them.

               On April 2, 2010, the jury found the petitioner guilty of two counts of wanton

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endangerment; one count of domestic battery; and three counts of child abuse by a parent,
guardian, or custodian resulting in bodily injury.5 The petitioner filed a motion for a new
trial based on the circuit court admitting the 404(b) evidence at trial, which was denied by
the circuit court. Following his convictions, the circuit court entered an order sentencing the
petitioner to a total term of three to twenty-five years in prison. The circuit court re­
sentenced the petitioner by order entered August 26, 2011, to allow time to perfect this
appeal.

             It is well-established that
                     [t]he 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. State v. LaRock, 196
             W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996).
Moreover, this Court previously has recognized that its 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. State v. Willett, 223 W. Va. 394, 397, 674 S.E.2d 602,
             605 (2009) (per curiam).
With these directives in mind, we proceed to consider the parties’ arguments.

               On appeal, the sole issue for this Court’s consideration is whether the trial court
erred in admitting 404(b) evidence from the petitioner’s former wife and stepchildren. The
petitioner argues that the State’s evidence did not qualify as a common plan. He contends
that the prior bad acts were part of a separate set of circumstances distinct in time, people,


               5
              The jury acquitted the petitioner on two counts of domestic battery; one count
of child neglect resulting in injury; and one count of brandishing a firearm, which had
replaced a dismissed wanton endangerment charge. The charge of felon in possession of a
firearm was severed and tried separately, and is not at issue in this appeal.

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and place. Further, the petitioner sets forth that the prejudicial effect of this evidence
outweighed any probative value. In response, the State argues that the circuit court was
correct in finding the 404(b) evidence admissible. In support of its assertions, the State
points out that the lower court found that the prior acts occurred, that they were committed
by petitioner, and that there was a relevant legitimate purpose for admitting them to show the
petitioner’s common plan to commit the alleged acts against his present family. Moreover,
as urged by the State, the probative value of the evidence was not substantially outweighed
by the prejudicial effect. Evidence of the petitioner’s past relationships showed his common
plan to dominate and control his family through physical, mental, and emotional abuse.

                Rule 404(b) of the West Virginia Rules of Evidence states as follows:
                       (b) Other crimes, wrongs, or acts. – Evidence of other
                crimes, wrongs, or acts is not admissible to prove the character
                of a person in order to show that he or she acted in conformity
                therewith. It may, however, be admissible for other purposes,
                such as proof of motive, opportunity, intent, preparation, plan,
                knowledge, identity, or absence of mistake or accident, provided
                that upon request by the accused, the prosecution in a criminal
                case shall provide reasonable notice in advance of trial, or
                during trial if the court excuses pretrial notice on good cause
                shown, of the general nature of any such evidence it intends to
                introduce at trial.
Specifically,
                        [w]hen 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. . . .
Syl. pt. 1, in part, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).

             Further, a trial court’s role when considering the admissibility of evidence
under Rule 404(b),
             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

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               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.
Syl. pt. 2, McGinnis, id. In that regard, this Court has recognized previously that, “[a]s to the
balancing under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing
test is essentially a matter of trial conduct, and the trial court’s discretion will not be
overturned absent a showing of clear abuse.” Syl. pt. 10, in part, State v. Derr, 192 W. Va.
165, 451 S.E.2d 731 (1994).

               Rule 403’s balancing test provides, in pertinent part, that the proffered
evidence be reviewed for its remoteness and similarity to the charged crime. Thus, the time
frame of the 404(b) evidence is relevant. The abuse of the former family occurred from
roughly 1992 through 1997. The previous domestic battery conviction happened in 1998.
The crimes underlying the current conviction took place from 2004 through 2008, with the
trial occurring in 2010. Importantly,
                      [w]hether evidence offered is too remote to be admissible
               upon the trial of a case is for the trial court to decide in the
               exercise of a sound discretion; and its action in excluding or
               admitting the evidence will not be disturbed by the appellate
               court unless it appears that such action amounts to an abuse of
               discretion.
Syl. pt. 5, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). Moreover, “[a]s a
general rule remoteness goes to the weight to be accorded the evidence by the jury, rather
than to admissibility.” Syl. pt. 6, State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533 (1982).

              In the petitioner’s case, the State presented a specific and legitimate purpose
for introducing 404(b) evidence: the petitioner’s past relationships showed his common plan
to dominate and control his family through physical, mental, and emotional abuse. Indeed,
the lower court found that the “alleged conduct in the prior case and the [petitioner’s] alleged
conduct in the current case indicates a common pattern/plan of abuse in which the

                                               6

[petitioner’s] intentions can be inferred for purposes of control and domination.” The trial
court found by a preponderance of the evidence that the acts occurred and that the petitioner
committed them. Finally, the trial court determined that the probative value of the evidence
was not substantially outweighed by any prejudicial effect. Thus, the lower court determined
that the State’s intended bad act evidence would be admissible at trial for the sole purpose
of showing the petitioner’s common plan to establish domination and control of his family.
Finally, a limiting instruction was read to the jury prior to the testimony of the first 404(b)
witness, and it was repeated during the general charge to the jury. Because the timing of the
previous conduct with the former family was not too remote in time, the State’s evidence was
admissible for the limited purpose of showing the petitioner’s common plan of abusing his
family to control and dominate them.

             For the foregoing reasons, we affirm the lower court’s August 26, 2011,
sentencing order and its concomitant decisions.

                                                                                    Affirmed.

ISSUED: May 16, 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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