         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               January 2014 Term
                                                                 FILED
                                                              June 5, 2014
                                  No. 13-0574                 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.

                               CARLOS ANGLE,
                           Defendant Below, Petitioner



                 Appeal from the Circuit Court of Marion County
                  Honorable Fred L. Fox, II, Senior Status Judge
                          Criminal Action No. 09-F-83

                          REVERSED AND REMANDED


                           Submitted: April 8, 2014
                             Filed: June 5, 2014



Robyn M. Danford, Esq.                             Patrick Morrisey, Esq.
Whiteman Burdette, PLLC                            Attorney General
Fairmont, West Virginia                            Scott E. Johnson, Esq.
Attorney for Petitioner                            Senior Assistant Attorney General
                                                   Laura Young, Esq.
                                                   Assistant Attorney General
                                                   Charleston, West Virginia
                                                   Attorneys for Respondent
                                        AND



                                     No. 13-0575



                             STATE OF WEST VIRGINIA,
                              Plaintiff Below, Respondent

                                          v.

                                  CARLOS ANGLE,
                              Defendant Below, Petitioner



                   Appeal from the Circuit Court of Marion County
                    Honorable Fred L. Fox, II, Senior Status Judge
                           Criminal Action No. 11-F-171

                                     VACATED


                              Submitted: April 8, 2014
                                 Filed: June 5, 2014



Eric K. Powell, Esq.                                 Patrick Morrisey, Esq.
Powell Law Office                                    Attorney General
Parkersburg, West Virginia                           Scott E. Johnson, Esq.
Attorney for Petitioner                              Senior Assistant Attorney General
                                                     Laura Young, Esq.
                                                     Assistant Attorney General
                                                     Charleston, West Virginia
                                                     Attorneys for Respondent


The Opinion of the Court was delivered PER CURIAM.
                               SYLLABUS BY THE COURT



              1.      “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.” Syl. Pt. 1, State v.

McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).



              2.      “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

                                                i
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, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d

516 (1994).



              3.      “Where improper evidence of a nonconstitutional nature is introduced

by the State in a criminal trial, the test to determine if the error is harmless is: (1) the

inadmissible evidence must be removed from the State’s case and a determination made as

to whether the remaining evidence is sufficient to convince impartial minds of the

defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be

insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support

the conviction, an analysis must then be made to determine whether the error had any

prejudicial effect on the jury.” Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55

(1979).



              4.      “A recidivist sentence under W.Va. Code § 61-11-19 (1943)

(Repl.Vol.2010) is automatically vacated whenever the underlying felony conviction is

vacated.” Syl. Pt. 3, Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013).

                                               ii
iii
Per Curiam:

              The petitioner and defendant below, Carlos Angle, appeals the April 17, 2013,

final order of the Circuit Court of Marion County sentencing him to imprisonment in the

penitentiary for life. The petitioner’s sentence resulted from two separate convictions. He

was first found guilty by a jury of sexual abuse in the first degree on July 28, 2011.

Following that conviction, the State filed a recidivist information1 against the petitioner that

resulted in a second jury conviction pursuant to West Virginia Code § 61-11-19 (2010)2 on


       1
        The State alleged that the petitioner had been previously convicted of the felony
offense of extortion and two counts of the felony offense of unlawful wounding in addition
to his conviction of first degree sexual abuse.
       2
        West Virginia Code § 61-11-19 provides, in pertinent part:

                      It shall be the duty of the prosecuting attorney when he
              has knowledge of former sentence or sentences to the
              penitentiary of any person convicted of an offense punishable by
              confinement in the penitentiary to give information thereof to
              the court immediately upon conviction and before sentence.
              Said court shall, before expiration of the term at which such
              person was convicted, cause such person or prisoner to be
              brought before it, and upon an information filed by the
              prosecuting attorney, setting forth the records of conviction and
              sentence, or convictions and sentences, as the case may be, and
              alleging the identity of the prisoner with the person named in
              each, shall require the prisoner to say whether he is the same
              person or not. If he says he is not, or remains silent, his plea, or
              the fact of his silence, shall be entered of record, and a jury shall
              be impanelled to inquire whether the prisoner is the same person
              mentioned in the several records. If the jury finds that he is not
              the same person, he shall be sentenced upon the charge of which
              he was convicted as provided by law; but if they find that he is
              the same, or after being duly cautioned if he acknowledged in
              open court that he is the same person, the court shall sentence

                                               1
January 30, 2013. The petitioner appealed each conviction separately,3 but this Court

consolidated the appeals for purposes of argument and decision by order entered February

11, 2014.



              Upon consideration of the parties’ briefs and oral argument, as well as the

submitted records and pertinent authorities, we find merit to the petitioner’s contention that

the circuit court committed reversible error during his first trial by allowing the admission

of certain evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence.4




              him to such further confinement as is prescribed by section
              eighteen [§ 61-11-18] of this article on a second or third
              conviction as the case may be.
       3
        The petitioner was appointed counsel to appeal both of his convictions, but he
retained private counsel to assist with the appeal of his recidivist conviction, resulting in
separate appeals being filed with this Court.
       4
        Rule 404(b) of the West Virginia Rules of Evidence states:

                     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.


                                              2
Accordingly, for the reasons set forth below, we reverse the petitioner’s conviction of sexual

abuse in the first degree and vacate his recidivist conviction.



                         I. Factual and Procedural Background

              The petitioner’s conviction of sexual abuse in the first degree resulted from

events that occurred on October 30, 2008. At approximately 2:00 a.m. that day, the

petitioner and two other men went to the apartment of Kassandra Huffman and her boyfriend,

Larry Broadwater, in Fairmont, West Virginia. The petitioner was acquainted with Ms.

Huffman and her boyfriend because he had previously lived in the same neighborhood.

According to Ms. Huffman, the petitioner and the other men were drinking beer and were

already intoxicated.     Another friend of Ms. Huffman and Mr. Broadwater, Josh

Dieffenbauch, arrived a short time later. Thereafter, the two men who had arrived with the

petitioner left the apartment. At some point, Mr. Broadwater told the petitioner that he also

needed to leave. Mr. Broadwater indicated that he needed to go to bed because he was

scheduled to work that morning. The petitioner and Mr. Dieffenbauch left the apartment at

the same time.



              According to Mr. Dieffenbauch, before he parted ways with the petitioner, the

petitioner told him that he was going back to Ms. Huffman’s apartment to sleep on her couch.

Mr. Dieffenbauch then sent a text message to Ms. Huffman, telling her, “Don’t answer the

door. It’s Carlos.”

                                              3
              Ms. Huffman was asleep and did not hear Mr. Broadwater leave for work that

morning. At the petitioner’s trial, Ms. Huffman testified that when she woke up she realized

that someone was in her room. She then became aware that the petitioner was in her bed

with his shirt off, his pants around his knees and his penis between her legs. Ms. Huffman

testified that the petitioner had also pulled her underwear down around her knees. According

to Ms. Huffman, she leapt from the bed and ran into the bathroom saying, “Hey, man, what

are you going [sic]?” and “Get the f*** out of my house.” She locked herself in the

bathroom and did not come out until she heard the petitioner leave the apartment. She then

called Mr. Broadwater and 911.



              Sergeant William Pigott of the Fairmont Police Department responded to the

911 call. After speaking with Ms. Huffman, Sergeant Pigott located the petitioner and

interviewed him.5 The petitioner confirmed that he had been at Ms. Huffman’s apartment,

stating that Ms. Huffman and Mr. Broadwater wanted to obtain drugs from him. The

petitioner denied using or possessing drugs. He stated that Ms. Huffman had offered to have

sex with him if he would obtain drugs for her. The petitioner admitted leaving the apartment,

and then returning, stating he believed Ms. Huffman had offered to have sex with him even

though she understood that he did not trade, sell or use drugs.



       5
        Officer Pigott testified that at the time of the interview, the petitioner had a blood
alcohol level of .141 according to a preliminary breath test, but he did not otherwise exhibit
symptoms of intoxication.

                                              4
              As a result of these events, the petitioner was indicted on one count of burglary

and one count of sexual assault in the second degree. Prior to the petitioner’s trial on these

charges, the State filed a notice of intent to use evidence pursuant to Rule 404(b) of the West

Virginia Rules of Evidence, seeking to present evidence that the petitioner had been

subsequently charged with sexual assault in the second degree, sexual abuse in the first

degree and conspiracy to commit a felony. These offenses were allegedly committed by the

petitioner in June 2009, while he was at a party in the neighborhood where Ms. Huffman

lived. The alleged victims were a female adult and a female juvenile. Following a hearing

on the matter, the trial court ruled that the evidence would be admissible at trial.



              At trial, the State’s primary witness was Ms. Huffman. In addition, the State

presented the 404(b) evidence through the testimony of Officer Pigott who told the jury that

he had investigated allegations that the petitioner had sexually assaulted and/or abused a

female adult and a juvenile at a party in June 2009. Officer Pigott testified that he had

interviewed the petitioner with regard to these allegations and that the petitioner had stated

that any sexual contact he had with the adult victim had been consensual. While Officer

Pigott testified that there was also a juvenile victim, he never explained the basis for the

allegation.



              After the State presented its case, the petitioner moved for a judgment of

acquittal. The court denied the motion with regard to the burglary charge, but granted, in

                                              5
part, the motion with regard to the charge of sexual assault in the second degree, finding that

the jury could only consider the lesser included offense of first degree sexual abuse as the

State had failed to present evidence to establish the greater offense.6 Following deliberations,

the jury acquitted the petitioner of the burglary charge but found him guilty of sexual abuse

in the first degree.



               Thereafter, the State filed a recidivist information against the petitioner and

obtained a jury conviction on January 30, 2013. At the petitioner’s sentencing hearing on

March 19, 2013, the court ordered that he be confined in the penitentiary for life pursuant to

West Virginia Code § 61-11-18(c) (2010).7 The final order was entered on April 17, 2013,

and these appeals followed.


       6
         Pursuant to West Virginia Code § 61-8B-4(a)(1) (2010), a person is guilty of sexual
assault in the second degree when “[s]uch person engages in sexual intercourse or sexual
intrusion with another person without the person’s consent, and the lack of consent results
from forcible compulsion.” Under West Virginia Code § 61-8B-7(a)(1) (2010), sexual abuse
in the first degree occurs when a “person subjects another person to sexual contact without
their consent, and the lack of consent results from forcible compulsion.” At trial, Ms.
Hoffman testified that when she woke up, she felt the petitioner’s penis between her legs.
During cross-examination she stated, “Well, I didn’t get raped. He didn’t penetrate my
vagina, in my vagina.”
       7
        West Virginia Code § 61-11-18(c) states:

                      “When it is determined, as provided in section nineteen
               [§61-11-19] of this article, that such person shall have been
               twice before convicted in the United States of a crime
               punishable by confinement in a penitentiary, the person shall be
               sentenced to be confined in the state correctional facility for
               life.”

                                               6
                                   II. Standard of Review

               The only assignment of error necessary for us to consider in these consolidated

appeals concerns the circuit court’s admission of evidence at the petitioner’s first trial

pursuant to Rule 404(b). This Court has explained 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, 310-311, 470 S.E.2d 613, 629-30 (1996). With these

standards in mind, we consider the parties’ arguments.




                                       III. Discussion

               The petitioner contends that the circuit court failed to make the requisite

findings necessary for a determination that the evidence offered by the State at his first trial

was admissible pursuant to Rule 404(b). This Court set forth the prerequisites for admission

of evidence under Rule 404(b) in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994),

holding that

                      [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

                                               7
              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.

193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 1. In addition, this Court instructed in

McGinnis that

                      [w]here 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.

193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 2.




                                              8
              As set forth above, our review begins with an analysis of whether the trial court

committed clear error in determining that there was sufficient evidence to show that the other

acts occurred. There were two separate pieces of evidence offered by the State pursuant to

Rule 404(b): (1) that the petitioner sexually assaulted another adult female and (2) that the

petitioner sexually abused a juvenile.8 Although the offenses allegedly occurred on the same

night, and although the petitioner was charged for both offenses in the same indictment, each

piece of evidence should have been considered separately to determine whether there was

sufficient evidence that the petitioner committed each act. As noted, these other alleged acts

occurred subsequent to the alleged offenses in this case. Thus, while the petitioner had been

indicted, he had not been convicted of these other acts at the time of his trial in the case at

bar.



              Upon review of the record, we are unable to locate any instance where the trial

court made a finding that the alleged other acts were committed by the petitioner. The 404(b)

hearing was held on July 26, 2011. At the end of the hearing, the trial court simply made a

conclusory statement, declaring, “The Court will allow the admission of the evidence. I think

it’s proper 404b evidence.” The trial court then instructed the State to prepare limiting




       8
        The petitioner was also charged with conspiracy in connection with these other
alleged offenses. Apparently, the adult victim reported that she had been sexually assaulted
by at least two men. The fact that the petitioner was also charged with conspiracy was not
submitted to the jury.

                                              9
instructions to be given at trial regarding the 404(b) evidence and to also prepare an order

reflecting the court’s ruling. No order was ever entered.9



              Even if we were to assume that the trial court implicitly found that the

petitioner committed the other alleged acts by ruling that the evidence was admissible, the

testimony presented at the 404(b) hearing did not support such a finding. The 404(b)

evidence was presented through the testimony of Officer Pigott. He testified that in June

2009, a female adult and a female juvenile each alleged that they had been sexually abused

and/or assaulted at a party in the same neighborhood where Ms. Huffman resided. Officer

Pigott stated that the petitioner and another male were named as persons of interest; that he

had interviewed the petitioner concerning the allegations; and that the petitioner had

maintained that any sexual contact he had with the adult female was consensual. Officer

Pigott further testified that the petitioner denied having sexual intercourse or any interaction

with the alleged juvenile victim and that “he didn’t press the issue further” during the

interview of the petitioner. Thus, the trial court was not presented with any specific evidence

with regard to the allegations made by the juvenile victim. Given these facts, we see no basis

for the trial court to have found by a preponderance of the evidence that the petitioner

committed these other acts.




       9
       The State acknowledges in its brief that no written order was entered following the
404(b) hearing.

                                              10
              While this Court recently found that evidence of a subsequent uncharged

offense was admissible pursuant to Rule 404(b) in State v. Bruffey, 231 W.Va. 502, 745

S.E.2d 540 (2013), the facts of that case are substantially different from the case at bar. In

Bruffey, the defendant was charged with a bank robbery, and the State introduced evidence

at his trial of a subsequent robbery the defendant was suspected of committing; no charges

had been filed against the defendant with respect to the second robbery. We found no error

in the admission of the evidence regarding the second uncharged bank robbery for the

purpose of showing a common plan, scheme and identity because there was substantial

forensic evidence linking the defendant to both crimes. Id. at —, 745 S.E.2d at 549. In this

case sub judice, however, there was not sufficient evidence for the trial court to have

concluded that the petitioner committed the subsequent alleged offenses. The State merely

put forth evidence that the petitioner had been accused of committing additional sexual

offenses, acknowledging that he denied the accusations.



              In addition to failing to make the requisite finding that the alleged other acts

were committed by the petitioner, the trial court erred in concluding that the evidence was

presented for a legitimate purpose. At the 404(b) hearing, the State indicated that it was

offering the evidence to show the petitioner’s lustful disposition toward Ms. Huffman, as

well as intent, motive and absence of mistake. At trial, the court instructed the jury as

follows:



                                             11
              This evidence was admitted for the limited purpose of
              explaining whether the defendant had motive, explain an
              absence of mistake in [sic] apparent mode of operation, whether
              the defendant exhibited the lustful disposition toward the alleged
              victim, as well as in this instance, for which the defendant is on
              trial.


              As noted by the petitioner, it is well-established that “[i]t is impermissible for

collateral sexual offenses to be admitted into evidence solely to show a defendant’s improper

or lustful disposition toward his victim.” Syl. Pt. 7, State v. Dolin, 176 W.Va. 688, 347

S.E.2d 208 (1986). While this holding was modified by this Court in State v. Edward

Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), to allow such evidence where the victim

is a child, the decision was not modified with respect to adult victims.10



              Recognizing that the 404(b) evidence should not have been admitted to show

the petitioner’s lustful disposition toward the victim, the State argues that we should extend



       10
        Syllabus point two of State v. Edward Charles L. states:

                      Collateral acts or crimes may be introduced in cases
              involving child sexual assault or sexual abuse victims to show
              the perpetrator had a lustful disposition towards the victim, a
              lustful disposition towards children generally, or a lustful
              disposition to specific other children provided such evidence
              relates to incidents reasonably close in time to the incident(s)
              giving rise to the indictment. To the extent that this conflicts
              with our decision in State v. Dolin, 176 W.Va. 688, 347 S.E.2d
              208 (1986), it is overruled.

183 W.Va. at 643, 398 S.E.2d at 125.

                                             12
our ruling in Edward Charles L. to adults, pointing out that such a ruling would be consistent

with federal law.11 We decline to do so, however, because as we explained in Dolin:

                     To recognize a sexual propensity exception in addition to
              the numerous exceptions to the collateral crime rule would
              provide a convenient path to damage a defendant’s character and
              would sweep additional sexual offenses into evidence which
              would obviously prejudice and confuse a jury in its
              consideration of the crime charged in the indictment. What
              renders the reasoning of those courts which have adopted a
              sexual propensity exception so anomalous is their failure to
              acknowledge that sexual crime cases are by their very nature
              likely to be highly offensive to the average jury. Thus, the
              ability to further prejudice the jury by admitting additional
              collateral sexual offenses is even more apparent.

                     Bearing on this problem is the fact that the guilt of a
              defendant in a sexual offense case can be based solely on the
              uncorroborated testimony of the victim. We held in Syllabus
              Point 5 of State v. Beck, 167 W.Va. 830, 286 S.E.2d 234, 31
              A.L.R.4th 103 (1981), that the uncorroborated testimony of the
              victim in a sexual offense case is sufficient to uphold a
              conviction, unless the testimony is inherently incredible. See
              also Syllabus Point 4, State v. Green, 163 W.Va. 681, 260
              S.E.2d 257 (1979); State v. Golden, 90 W.Va. 496, 111 S.E.
              320 (1922). For this reason, courts should be particularly wary
              of collateral sexual offense evidence and should be cautious in
              admitting such evidence.

176 W.Va. at 695, 347 S.E.2d at 215. Accordingly, we find that the trial court erred by

admitting the 404(b) evidence for the purpose of establishing the petitioner’s lustful

disposition toward Ms. Huffman.




       11
        See Fed. R. Evid. 413.

                                             13
              We further find that the trial court erred when it admitted the evidence to show

motive, absence of mistake, and mode of operation because the State failed to establish how

the evidence related to these specific purposes. In that regard, the State never attempted to

explain how evidence of subsequent criminal charges could establish a motive to commit the

offenses charged in the case at bar, which allegedly occurred nine months earlier. Other than

the obvious impermissible inference that one who committed a later sexual assault would

have probably been motivated to commit the earlier one, the State provided no evidence to

suggest how sexual offenses allegedly committed nine months later related to motive to

commit these offenses.



              With regard to the purpose of absence of mistake, the State again failed to give

any explanation as to what mistake, precisely, it wished to dispute. The petitioner never

offered any type of defense that might have been construed as a “mistake.” The petitioner

did not testify at trial, nor did he present any other witnesses. During closing argument, his

counsel asserted that Ms. Huffman’s “story” was simply not credible.



              Finally, it appears that the State attempted to utilize the 404(b) evidence for the

purpose of showing that the petitioner had a mode of operation. We have stated that “if the

[other act] evidence is offered to show intent, knowledge, or modus operandi, a showing of

similarity is usually necessary to demonstrate its probative value.” McGinnis, 193 W.Va. at

156, 455 S.E.2d at 525. The State was unable to make such a showing because the alleged

                                              14
sexual offenses occurred under vastly different circumstances. The evidence at trial indicated

that Ms. Huffman was sober when the alleged offense occurred. She was home alone, and

the petitioner allegedly broke into her home and attempted to sexually assault her while she

slept. The victims of the subsequent alleged offenses were admittedly intoxicated. Further,

the alleged offenses were committed during a party. The only similarity between the alleged

offenses was that they occurred in the same neighborhood. Given these circumstances, the

circuit court erred in finding that the evidence was admissible to establish a mode of

operation.



              The final step of our review concerns the trial court’s evaluation of the

evidence under Rule 403 of the West Virginia Rules of Evidence, which provides that

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” We have stated that when a trial court evaluates the admissibility of evidence

pursuant to Rule 404(b), “[t]he balancing necessary under Rule 403 must affirmatively

appear on the record.” McGinnis, 193 W.Va. at 156, 455 S.E.2d at 525. As previously

discussed, the trial court simply concluded at the end of the McGinnis hearing that the

evidence would be admissible under Rule 404(b). It is clear that no balancing test was ever

conducted.



                                             15
               Given all the above, we find that the trial court failed to conduct a thorough

analysis of the 404(b) evidence at issue as required by McGinnis, and erred in admitting at

trial the testimony concerning subsequent sexual offenses allegedly committed by the

petitioner. The State acknowledges that trial court failed to perform the Rule 403 balancing

test but argues that the admission of the 404(b) evidence was harmless error. We disagree.



               This Court has held:

                       Where improper evidence of a nonconstitutional nature
               is introduced by the State in a criminal trial, the test to determine
               if the error is harmless is: (1) the inadmissible evidence must be
               removed from the State’s case and a determination made as to
               whether the remaining evidence is sufficient to convince
               impartial minds of the defendant’s guilt beyond a reasonable
               doubt; (2) if the remaining evidence is found to be insufficient,
               the error is not harmless; (3) if the remaining evidence is
               sufficient to support the conviction, an analysis must then be
               made to determine whether the error had any prejudicial effect
               on the jury.

Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). In McGinnis, we observed

“that Rule 404(b) determinations are among the most frequently appealed of all evidentiary

rulings and the erroneous admission of evidence of other acts is one of the largest causes of

reversal of criminal convictions.” 193 W.Va. at 153, 455 S.E.2d at 522. We further

recognized that “where a trial court erroneously admits Rule 404(b) evidence, prejudicial

error is likely to result.” Id.




                                                16
              Because the State’s case rested solely upon the claims of Ms. Huffman and

because the evidence of the other alleged bad acts by the petitioner improperly bolstered her

testimony, we conclude that its admission had an unfairly prejudicial effect on the jury. The

likelihood of a conviction in this instance, without the introduction of other sexual offenses

allegedly committed by the petitioner, one of which was against a child, was considerably

less. Thus, we find that the improper admission of the 404(b) evidence was not harmless

error. Consequently, the petitioner’s conviction of sexual abuse in the first degree must be

reversed.



              Because we have reversed the petitioner’s sexual abuse conviction, we must

vacate his recidivist conviction. As this Court explained in syllabus point 3 of Holcomb v.

Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013), “A recidivist sentence under W.Va. Code

§ 61-11-19 (1943) (Repl.Vol.2010) is automatically vacated whenever the underlying felony

conviction is vacated.”



                                      IV. Conclusion

              For the reasons set forth above, the petitioner’s conviction of first degree

sexual abuse is reversed, and the case is remanded to the circuit court for a new trial and

further proceedings consistent with this opinion. The petitioner’s recidivist conviction is

vacated.

                                                     No. 13-0574 - Reversed and remanded.

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     No. 13-0575 - Vacated.




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