                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                        May 24, 2013
vs) No. 12-0440 (Nicholas County 11-F-48)                                          RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Franklin Overbaugh,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Duane C. Rosenlieb Jr., arises from the Circuit Court of
Nicholas County, wherein he was sentenced to a determinate term of incarceration of forty years
following his jury conviction of second degree murder by order entered on March 1, 2012. The
State, by counsel Laura Young, has filed its response, to which petitioner has filed a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In May of 2011, petitioner was indicted, along with James Walker, for the first degree
murder of Brian K. Darby. Testimony was introduced at trial that the victim had physically
assaulted petitioner on at least two prior occasions, and that the victim had also physically
assaulted other people who lived at the residence where the victim was later killed. Prior to trial,
co-defendant Walker pled guilty, pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43
(1987), to one count of voluntary manslaughter, one count of solicitation to commit voluntary
manslaughter, and one count of conspiracy to commit voluntary manslaughter. In a statement to
police, petitioner admitted to shooting the victim in the leg with a shotgun. The State alleged that
the victim had been lured to the home on the day of the shooting so that petitioner could kill him.
Following trial, the jury returned a guilty verdict on one count of second degree murder, for
which petitioner was sentenced as noted above.

        On appeal, petitioner alleges that the circuit court erred in preventing him from
introducing character evidence concerning his military training, in admitting irrelevant evidence
concerning his conduct, and in permitting prosecutorial misconduct through arguing facts not in
evidence. In support, petitioner argues that he attempted to introduce evidence that prior military
training taught him to aim for “center mass” in order to kill someone. Petitioner sought to
introduce this evidence to show that he did not intend to kill the victim when he shot him in the
leg. However, petitioner argues that the circuit court sustained the State’s objection to the
introduction of such evidence and, in doing so, prevented petitioner from putting his own

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pertinent character trait at issue. Further, petitioner argues that the circuit court erred in admitting
irrelevant testimony concerning specific incidents to rebut petitioner’s character. According to
petitioner, after the circuit court ruled that he put his character at issue, it then improperly allowed
the State to rebut his character evidence with testimony from a different witness regarding the
petitioner and Carrie Bush kissing in the back of a police car. Lastly, petitioner argues that the
circuit court erred in allowing the prosecuting attorney to argue facts not in evidence relating to
letters supposedly written by petitioner to Carrie Bush. According to petitioner, the prosecutor
used these letters to bolster the State’s theory that petitioner killed Mr. Darby because of his love
for Ms. Bush, but the letters were never admitted into evidence, nor was any evidence ever
introduced to support the prosecutor’s assertions that petitioner and Ms. Bush were in any sort of
relationship. Further, petitioner argues that the State did not notify him of its intention to rely on
the letters despite his request for any evidence being admitted pursuant to Rule 404(b) of the West
Virginia Rules of Evidence.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). First, the Court finds no error in the circuit court’s rulings
related to petitioner’s direct examination and the introduction of testimony concerning his
military training. The record shows that petitioner’s counsel questioned him extensively as to his
military background, training, and experience. Further, the trial transcript contains at least six
pages of petitioner’s testimony on this subject prior to the State’s objection for relevance. At that
time, the circuit court instructed petitioner’s counsel to ask questions directly related to the
defense’s theory that petitioner’s training caused him to shoot the victim in the leg in order to
simply wound, as opposed to kill, him. We have previously held that

       “[t]he action of a trial court in admitting or excluding evidence in the exercise of
       its discretion will not be disturbed by the appellate court unless it appears that such
       action amounts to an abuse of discretion.” Syllabus Point 10, State v. Huffman, 141
       W.Va. 55, 87 S.E.2d 541 (1955).

Syl. Pt. 6, State v. Rash, 226 W.Va. 35, 697 S.E.2d 71 (2010). It is clear that the circuit court
sought only to limit the petitioner in introducing irrelevant evidence concerning his general
military background and did not prevent petitioner from testifying as to any training that
supported the theory that petitioner sought to wound the victim. For these reasons, we find no
error in regard to this issue.

        Second, the Court finds no error in regard to the introduction of evidence related to
petitioner’s conduct with Ms. Bush. This is not evidence of petitioner’s character, as he
incorrectly argues. The evidence spoke directly to the State’s theory that petitioner had romantic
feelings for Ms. Bush and that petitioner was motivated to kill the victim, at least in part, because
of this romantic interest. As such, it was not error to allow a witness to testify to having seen
petitioner kissing Ms. Bush in the back of a law enforcement vehicle following Mr. Darby’s
murder.


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         Finally, the Court finds no error in regard to the prosecutor referencing certain letters
throughout the trial below. The record shows that petitioner did not object to the State’s reliance
on these letters at any point during the trial. We have previously held that “‘[o]ur general rule is
that nonjurisdictional trial error not raised in the trial court will not be addressed on appeal.’
Syllabus Point 9, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).” Syl. Pt. 4, State v.
Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987). As such, petitioner has waived any alleged defect
in this regard.

         Further, these letters do not constitute character evidence, as petitioner argues, and they
are clearly not evidence of the type contemplated by Rule 404(b). That rule governs the
prohibition against evidence of other crimes, wrongs, or acts introduced to prove a person’s
character to show that he or she acted in conformity therewith. The letters of which petitioner
complains were appropriately utilized to cross-examine witnesses, including petitioner, in regard
to the petitioner’s motivation to commit the crime in question and did not have to be introduced
into evidence in order for the prosecutor to refer to their contents to impeach those witnesses.
Despite petitioner’s allegation that the letters were not authenticated and lacked foundation,
petitioner himself testified that he “[didn’t] deny writing Carrie letters.” Additionally, the two
individuals that were party to the correspondence testified directly to the contents thereof, thereby
putting those portions testified to into evidence and allowing the prosecutor to rely on that
evidence to support the State’s theory of the case. To the extent petitioner would contest
admissibility on hearsay grounds, the Court finds that none of petitioner’s statements from the
letters constitute hearsay because they are admissions by a party-opponent under Rule 801(d)(2)
of the West Virginia Rules of Evidence.

        Lastly, the Court notes that petitioner asserted in his reply brief, for the first time, an
assignment of error related to the circuit court’s denial of his motion for a mistrial and refusal to
give a curative jury instruction after a witness allegedly provided false testimony about a
concession he received from the State. Because petitioner failed to raise this issue in his brief as
either an assignment of error or as an argument, as required by Rule 10 of the Rules of Appellate
Procedure, the Court declines to address the same herein.

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: May 24, 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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