                                                                            FILED
No. 15-0537 – State v. Gary A.                                        September 23, 2016
                                                                             released at 3:00 p.m.
LOUGHRY, Justice, concurring:                                              RORY L. PERRY, II CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA




               I fully concur in the majority’s opinion and write separately to emphasize an

important point: Rule 404(b) testimony establishing lustful disposition toward children is

not rendered inadmissible solely by alleged remoteness. The Rule 404(b) testimony of

Amanda R. and Sabrina R. was clearly admissible in the instant case even though it pertained

to events occurring many years before the petitioner molested L.M. This evidence went

squarely to the issue of the petitioner’s lustful disposition toward children, and the jury was

free to consider the remoteness in time and accord the evidence whatever weight it deemed

appropriate.



               In the instant case, 404(b) witnesses Amanda R. and Sabrina R. testified about

incidents of sexual misconduct that the petitioner inflicted upon them when they were young

girls. Amanda R. recounted that when she was between seven and ten years old, the

petitioner would “tickle” her in the pelvic area. She also recalled how, at a sleepover, she

awoke to find the petitioner’s hand on her pelvic area outside of her pants. Sabrina R.

testified that the petitioner molested her beginning when she was four or five years old and

continuing until she was ten or eleven years old, and that his conduct included touching her

genitalia with both his hands and his genitalia. Notably, Amanda R. and Sabrina R. were


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approximately the same age as the young female victim herein, L.M., when the misconduct

occurred, and the conduct they described is similar to the sexual touching described by L.M.

Moreover, they, like L.M., were related to the petitioner and in a position of trust to the

petitioner when the misconduct occurred. The petitioner even conceded that he committed

some acts of sexual misconduct against Sabrina R.



              The circuit court correctly concluded that this evidence showed the petitioner’s

lustful disposition toward children and was thus admissible pursuant to West Virginia law:

                      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.

Syl. Pt. 2, in part, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). In

adopting the lustful disposition exception to Rule 404(b), the Court recognized that children

often have greater difficulty than adults in establishing the precise dates and details of

incidents of sexual abuse, and that a full disposition of the facts forming the context of the

crime presents a fairer opportunity for the jury to assess witness credibility. Id. at 650-51,

398 S.E.2d at 132-33.




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              The petitioner argues that the conduct reported by Amanda R. and Sabrina R.

should have been excluded from the trial on the basis that it was not “reasonably close” in

time to the events described by L.M., as that phrase is used in Edward Charles L.

Recognizing first the considerable gatekeeping discretion afforded the circuit court in

determining whether an incident is “reasonably close,” I reject the notion that this holding

serves to supplant our wealth of case law on the issue of remoteness as relates to 404(b)

evidence. This Court has made abundantly clear that the admissibility of 404(b) evidence

is not nullified by the fact that the occurrences were remote in time. Rather, “‘[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).” Syl. Pt.

5, State v. Winebarger, 217 W.Va. 117, 617 S.E.2d 467 (2005). This general rule applies to

404(b) evidence in child sexual assault cases:

                      More recently, this Court has recognized that the
              probative value of other bad act evidence is not completely
              nullified by the fact that various sexual assaults occurred remote
              in time from one another. In State v. McIntosh, 207 W.Va. 561,
              534 S.E.2d 757 (2000), this Court held that evidence of prior
              sexual incidents involving a defendant teacher and his female
              students was admissible, although the sexual assaults occurred
              within four, seven and thirteen years of each other. In coming
              to this conclusion in McIntosh, we recognized that “the decision
              on remoteness as precluding the admissibility of evidence is
              generally for the trial court to determine in the exercise of its
              sound discretion.” Id. (quoting State v. Gwinn, 169 W.Va. 456,
              472, 288 S.E.2d 533, 542 (1982)). We also relied upon our prior
              holding in Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410
              (1945), wherein we stated:


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                     An abuse of discretion is more likely to result
                     from excluding, rather than admitting, evidence
                     that is relevant but which is remote in point of
                     time, place and circumstances, and that the better
                     practice is to admit whatever matters are relevant
                     and leave the question of their weight to the jury,
                     unless the court can clearly see that they are too
                     remote to be material.

              Id. at 311-12, 36 S.E.2d at 416.

                      It is well understood that “[a]s a general rule remoteness
              goes to the weight to be accorded the evidence by the jury,
              rather than to admissibility.” State v. Gwinn, 169 W.Va. at 457,
              288 S.E.2d at 535. “The admissibility of evidence concerning
              prior bad acts under rule 404(2) must be determined upon the
              facts of each case; no exact limitation of time can be fixed as to
              when prior acts are too remote to be admissible.” McIntosh, 207
              W.Va. at 572, 534 S.E.2d at 768 (quoting State v. Burdette, 259
              Neb. 679, 697, 611 N.W.2d 615 (2000)). Furthermore, “[w]hile
              remoteness in time may weaken the probative value of evidence,
              such remoteness does not, in and of itself, necessarily justify
              exclusion of the evidence.” Id. at 573, 534 S.E.2d at 769.
              Several courts have made similar holdings.

State v. Rash, 226 W.Va. 35, 45-46, 697 S.E.2d 71, 81-82 (2010) (footnote omitted); see also

State v. Parsons, 214 W.Va. 342, 350, 589 S.E.2d 226, 234 (2003) (finding that

approximately twenty years was not too remote for 404(b) evidence in child sexual assault

trial).



              In the case at bar, the circuit court properly determined that the overwhelming

similarities between the 404(b) testimony and L.M.’s allegations rendered the 404(b)

evidence admissible and that, in accordance with the general rule articulated above, the jury

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was permitted to accord whatever weight it deemed appropriate to the lapse in time between

events. Moreover, the defendant was afforded substantial safeguards by the circuit court

through its careful adherence to the procedures required by State v. McGinnis, including:

holding an in camera hearing; determining by a preponderance of the evidence that the

events occurred and were committed by the petitioner; finding that the evidence was relevant

and not unfairly prejudicial; and giving cautionary instructions to the jury. See, Syl. Pt. 2,

State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994) (specifying procedures for

admission of Rule 404(b) evidence).



              We review a circuit court’s admission of 404(b) evidence for an abuse of

discretion. “‘As the control of the scope, latitude and method of introduction of evidence of

collateral crimes and charges is vested in the trial court, motions to introduce and motions

and objections for exclusion of such evidence are addressed to the sound discretion of the

court.’ Syl. Pt. 14, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).” Winebarger,

217 W.Va. at 119, 617 S.E.2d at 469, syl. pt. 3. Based upon the foregoing, I agree with the

majority’s conclusion that the circuit court properly admitted the 404(b) evidence on the issue

of the petitioner’s lustful disposition toward children and seek to reiterate our clear precedent

holding that remoteness will not, alone, serve to render 404(b) evidence inadmissible.



              Accordingly, I respectfully concur.


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