                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                        April 13, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0640 (Monongalia County 13-F-281)                                      OF WEST VIRGINIA


Leroy Danser,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Leroy Danser, by counsel David Anderson, appeals the Circuit Court of
Monongalia County’s May 12, 2014, order sentencing him to a term of one to ten years in prison
for his conviction of one count of grand larceny. The State, by counsel Derek Knopp, filed a
response in support of the circuit court’s order. On appeal, petitioner alleges that the circuit court
erred in excluding evidence that was discovered on the last day of trial.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule
21 of the Rules of Appellate Procedure.

       In September of 2013, a Monongalia County Grand Jury indicted petitioner on one count
of grand larceny. Following a three-day jury trial, petitioner was convicted of one count of grand
larceny for stealing a swing set in violation of West Virginia Code § 61-3-13(a). The circuit court
sentenced petitioner to one to ten years in prison for one count of grand larceny.

        On appeal, petitioner argues that the circuit court erred in excluding a photograph on the
last day of his trial, which petitioner contends depicts him and his father assembling a similar play
set several days before the alleged crime occurred. Petitioner argues that the photograph “raised a
reasonable inference” of his guilt and that the circuit court further erred in denying a witness from
authenticating the photograph. Rule 403 of the West Virginia Rules of Evidence provides that
“[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”1 We review a trial court’s evidentiary

       1
        We note that the West Virginia Rules of Evidence were amended effective September 2,
2014. All references to Rule 403 in this memorandum decision will be based on the rule as it
existed during the pendency of this case.
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rulings and application of the Rules of Evidence under an abuse of discretion standard. Syl. Pt. 4,
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). The record in this case is devoid of
any proof that the probative value of this evidence, if any, was outweighed by its prejudicial
effect. We find no abuse of discretion.

       For the foregoing reasons, we affirm.
                                                                                         Affirmed.

ISSUED: April 13, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis
Justice Menis E. Ketchum




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