State of West Virginia v. Daniel M.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent FILED

November 19, 2018

vs.) No. 17-0714 (Berkeley County 17-F-42) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Daniel M.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Daniel M., by counsel Stephanie E. Scales-Sherrin, appeals the Circuit Court of

Berkeley County’s July 17, 2017, order sentencing him to one to five years of incarceration for

his conviction of child abuse resulting in injury and six months in the regional jail for his

conviction of domestic battery.1 The State of West Virginia, by counsel Gordon L. Mowen II,

filed a response in support of the circuit court’s order. On appeal, petitioner argues that the court

erred in (1) designating the victim as an unavailable witness and permitting the State to use, and

publish to the jury, a transcript of her testimony from a related domestic violence proceeding; (2)

prohibiting him from introducing evidence concerning plea negotiations; and (3) denying his

motion for a new trial. Lastly, petitioner alleges that the evidence was insufficient to support his

conviction.

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 circuit court’s order is appropriate under Rule 21

of the Rules of Appellate Procedure.

In February of 2017, petitioner was indicted on one count of child abuse resulting in

injury, one count of domestic battery, and one count of strangulation. These charges stemmed

from an incident in November of 2016 wherein petitioner was involved in a physical altercation

with his stepdaughter. According to evidence introduced at trial, in November of 2016, the

victim, R.F., was getting ready for swim practice. Petitioner and the victim’s mother were

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183

W.Va. 641, 398 S.E.2d 123 (1990).

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waiting for her to leave. At some point, petitioner confronted the victim and told her to “hurry

up.” Petitioner continued to verbally assault the victim and obstructed the victim’s path between

the bathroom and her bedroom. The victim indicated that during their physical altercation,

petitioner knocked her into a banister, put his hand on her chest to shove her into a wall,

slammed her to the floor, and restricted her breathing for between three and five seconds by

grabbing her neck. After the altercation, the victim and her mother reported the incident to law

enforcement and the victim underwent a medical examination.

In May of 2017, petitioner’s jury trial took place over three days. At trial, petitioner

presented a defense in which he alleged that the victim was the initial aggressor and he merely

restrained her during their altercation. Petitioner further alleged that “bringing the matter to trial

was the result of an overzealous prosecution” given that that victim and her mother expressed a

desire that the matter not be prosecuted. In support of this defense, petitioner introduced a letter

from the victim and her mother to the prosecuting attorney sent shortly before trial that indicated

that neither individual wished for petitioner to be prosecuted for these crimes.

The State first called the victim, who testified to her version of the physical altercation at

issue. However, when questioned about her prior testimony during a related proceeding to obtain

a domestic violence protective order (“DVPO”) against petitioner, the victim indicated that she

could not recall much of that prior testimony. In response to several questions, the victim

provided testimony that was inconsistent with the testimony she provided at the prior DVPO

proceeding. Consequently, the prosecutor relied on the victim’s prior testimony to refresh her

recollection several times. Eventually, the State moved for the circuit court to declare the victim

an unavailable witness under Rule 804 of the West Virginia Rules of Evidence and permit the

State to introduce the victim’s prior testimony into evidence. Ultimately, the circuit court

declined to designate the witness as unavailable and further declined to permit the introduction of

the prior statement into evidence. The circuit court did, however, permit the State “liberal use of

the prior statement” for purposes of impeachment, including permitting the State to project

portions of the transcript from the prior proceeding in the courtroom. Thereafter, the victim was

permitted to testify about the event itself and also provide further explanation regarding her prior

testimony at the DVPO proceeding.

In relation to the incident in question, the victim mostly confirmed her earlier testimony,

including that petitioner threw her to the floor “like a body slam” multiple times, resulting in her

head hitting a wall and the floor. She further testified that petitioner “chok[ed her] on the

ground” for between three and five seconds. According to the victim, she was unable to breathe

and “was trying to scream, [but] just couldn’t.” The victim also testified to injuries sustained

during this altercation, including bruising to her elbows, eye, and foot; a mark on her neck where

petitioner choked her; and multiple scratches to various parts of her body. According to the

victim, petitioner initiated the physical altercation when he shoved her. The victim also testified

to obtaining medical treatment for her injuries and confirmed that she told medical personnel that

she suffered discomfort when swallowing due to petitioner choking her.

The victim’s mother also testified at trial and recalled that the victim was screaming

when she exited the home after the altercation, describing the victim as “hysterical” at that time.

According to the mother, the victim indicated that petitioner attacked her and told her that her

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head hurt and her throat was sore as a result of the physical altercation. The mother also testified

to reporting the incident to the police and taking the victim to obtain medical treatment.

The State also presented the testimony of Betty Fisher, who was qualified as an expert

forensic nurse examiner. Ms. Fisher examined the victim shortly after the incident and testified

that the victim reported that she was in a fight with petitioner during which he threw her to the

floor and “held [her] down to the floor by her neck[,]” among other acts. Ms. Fisher testified that

the victim reported pain in her right lateral chest, joint and neck pain, pain in her left foot,

tenderness on her right ribs, and difficulty seeing and hearing. According to Ms. Fisher, the

victim also reported difficulty swallowing as a result of the physical altercation. After examining

the victim, Ms. Fisher determined that she suffered an abrasion on her right side, a bruise to her

left eye, a bruise on her left ankle, and an abrasion on her right wrist. According to Ms. Fisher,

these injuries were consistent with the physical altercation described by the victim. Additionally,

the State introduced photographs of these injuries during Ms. Fisher’s testimony.

Petitioner testified to his version of the physical altercation. According to petitioner, the

victim initiated physical contact by running into him. He then “went after her verbally. . . .” After

the victim attempted to walk past him, petitioner indicated that he “put [his] hand on her chest

and just stopped her against the wall.” After telling the victim that he “should just beat [her] ass

right now[,]” petitioner then put his hand back on her chest and “put her against the wall.”

According to petitioner, the victim then sunk her fingernails into his chest and slapped his face,

at which point he grabbed both her wrists and “more forcefully put her against the wall. . . .”

Petitioner claimed the victim then bit him on the chest and lunged at him, at which point he “let

her momentum and weight” take them both to the ground. Once on the ground, petitioner

indicated that he kept the victim pinned so that she could not attack him further. This included

his “hand going to her neck” so that the victim could not bite him again. Upon releasing the

victim, petitioner claimed that she “started clawing at [his] chest again and [his] arms.” This

caused petitioner to take the victim back to the floor. After more struggling on the floor,

petitioner eventually let the victim up, at which point he testified that she grabbed her bag and

ran downstairs. Although petitioner claimed to have been injured during this altercation, he

testified that no one saw those injuries. Ultimately, the jury convicted petitioner of child abuse

resulting in injury and domestic battery. The jury acquitted petitioner of strangulation.

In July of 2017, the circuit court held a sentencing hearing during which it imposed a

sentence of one to five years of incarceration and a $100 fine for petitioner’s conviction of child

abuse resulting in injury and six months in the regional jail for petitioner’s conviction of

domestic battery, said sentences to be served consecutively. However, the circuit court

suspended these sentences in favor of three years of supervised probation. The circuit court also

imposed a period of five years of supervised release and informed petitioner that he was required

to register as a child abuser for a period of ten years.

In August of 2017, petitioner filed a motion for a new trial. In support of his motion,

petitioner alleged that he obtained newly discovered evidence that supported his theory of

overzealous prosecution. Specifically, he alleged that during jury deliberations, the victim’s

mother was terminated from her employment with the Berkeley County Prosecuting Attorney’s

Office “in retaliation for her unwillingness to testify in a negative manner” toward petitioner at

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trial. The circuit court denied the motion, in part, upon petitioner’s failure to provide supporting

affidavits, as required by law. It is from the circuit court’s sentencing order that petitioner

appeals.

This Court has previously established the following standard of review:

“In reviewing challenges to the findings and conclusions of the circuit

court, we apply a two-prong deferential standard of review. We review the final

order and the ultimate disposition under an abuse of discretion standard, and we

review the circuit court’s underlying factual findings under a clearly erroneous

standard. Questions of law are subject to a de novo review.” Syl. Pt. 2, State v.

Hinchman, 214 W.Va. 624, 591 S.E.2d 182 (2003).

Syl. Pt. 1, State v. Seen, 235 W.Va. 174, 772 S.E.2d 359 (2015).

First, petitioner alleges that the circuit court erred in designating the victim as an

unavailable witness under Rule 804 of the West Virginia Rules of Evidence and in allowing the

State to read from, and publish to the jury, her testimony from the prior DVPO proceeding. As a

preliminary matter, we note that petitioner’s assignment of error misstates the record below, as

there is no indication that the circuit court ever designated the victim as an unavailable witness.

The record shows that although the State moved to have the witness designated as unavailable,

the circuit court specifically indicated that it was “not going to say yay or nay on the

unavailability/804/confrontation” issue.2 Given that the majority of petitioner’s argument on

appeal is predicated on his assertion that the circuit court erred in its application of Rule 804 in

designating the witness as unavailable, it is clear that he is entitled to no relief upon any of these

grounds.

2

In support of his assignment of error, petitioner cites to additional statements from the

circuit court to argue that the circuit court designated the witness as unavailable. According to

petitioner, the circuit court indicated that it was “going to make a decision as to [the victim’s]

unavailability for purposes of 804. . . .” Relying solely on this language, petitioner concludes that

the circuit court granted the State’s motion and designated the witness as unavailable. We

disagree. Instead, this language simply indicates only that the circuit court intended to make a

ruling on the issue; however, at no point in the remainder of the transcript does the circuit court

ever explicitly indicate that it has designated the witness as unavailable. This language could

equally have indicated that the circuit court intended to rule against the State. Indeed, the record

supports a finding that the circuit court did not designate the witness as unavailable, given that it

explicitly ruled that the victim “needs to be on the stand to explain herself” in relation to her

prior testimony at the DVPO proceeding. Further, the circuit court ruled that “of course [the

victim is] going to be subject to cross[-]examination.” Finally, the circuit court ruled that it

would permit the State to “demonstrate that the version [of her testimony] that she gave prior [to

trial] is not consistent with what . . . you’re getting today[,]” indicating that the prior testimony

was used for impeachment purposes. In short, petitioner has simply failed to cite to any portion

of the record wherein the circuit court designated the witness as unavailable.

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Further, petitioner concedes that the victim’s prior testimony “could have been properly

introduced by the State for impeachment purposes[,]” although he alleges that “the transcript

would not be admissible” in the same manner as he alleges it was introduced at trial.3 Indeed, we

have held that “Rule 607 of the West Virginia Rules of Evidence allows a party, including the

one who called the witness, to impeach a witness by a prior inconsistent statement.” Syl. Pt. 3,

State v. Collins, 186 W.Va. 1, 409 S.E.2d 181 (1990). However, petitioner’s argument again

misstates the record, as the portions of the transcript the State relied upon to impeach the witness

were not admitted into evidence. Instead, the State simply read from the victim’s prior testimony

for purposes of impeaching her testimony at trial. To the extent that petitioner argues that

publishing those portions of the transcript to the jury during the witness’s testimony was

improper, we find no error given that they were not admitted into evidence and the jury was free

to hear the statements by way of impeachment. “A trial court’s evidentiary rulings, as well as its

application of the West Virginia Rules of Evidence, are subject to review under an abuse of

discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

Based on the foregoing, we find that petitioner is entitled to no relief.

Next, petitioner argues that the evidence introduced at trial was insufficient to support his

conviction for child abuse resulting in injury because the element of bodily injury was not

satisfied.4 Under West Virginia Code § 61-8D-3(a), “[i]f any parent, guardian or custodian shall

abuse a child and by such abuse cause such child bodily injury as such term is defined in section

one, article eight-b of this chapter, then such parent, guardian or custodian shall be guilty of a

felony. . . .” According to West Virginia Code § 61-8B-1(9), “‘[b]odily injury’ means substantial

physical pain, illness or any impairment of physical condition.” On appeal, petitioner argues that

the evidence presented below does not meet the statutory definition of “bodily injury” required to

convict him of this crime. We disagree.

We have previously held as follows:

3

Petitioner similarly concedes that the transcript could have been used to refresh the

witness’s recollection under Rule 612 of the West Virginia Rules of Evidence, which governs the

use of a writing to refresh a witness’s memory. According to petitioner, that rule addresses “an

adverse party[’s]” options when using a writing to refresh a witness’s memory. He further argues

that the victim was the State’s witness and, thus, the State was required to first designate her as

an adverse witness. We note, however, that petitioner did not object to the State’s use of the prior

testimony for purposes of refreshing the witness’s recollection. Prior to the State’s motion to

declare the witness unavailable, the State engaged in multiple instances of refreshing the victim’s

recollection. At no point during this exchange did petitioner object on the grounds that the State

failed to first have the witness declared adversarial. “‘Our general rule is that nonjurisdictional

questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme

Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v.

W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009). Accordingly,

we decline to address this issue on appeal.

4

On appeal, petitioner does not argue that the evidence was insufficient to support his

conviction for domestic battery. Accordingly, that conviction is not at issue.

5

“A criminal defendant challenging the sufficiency of the evidence to

support a conviction takes on a heavy burden. An appellate court must review all

the evidence, whether direct or circumstantial, in the light most favorable to the

prosecution and must credit all inferences and credibility assessments that the jury

might have drawn in favor of the prosecution. The evidence need not be

inconsistent with every conclusion save that of guilt so long as the jury can find

guilt beyond a reasonable doubt. Credibility determinations are for a jury and not

an appellate court. Finally, a jury verdict should be set aside only when the record

contains no evidence, regardless of how it is weighed, from which the jury could

find guilt beyond a reasonable doubt. To the extent that our prior cases are

inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.

657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. Seen, 235 W.Va. 174, 772 S.E.2d 359 (2015). Here, viewing the evidence in a

light most favorable to the prosecution, it is clear that sufficient evidence existed to support

petitioner’s conviction for child abuse resulting in injury. On appeal, petitioner simply asserts

that any injuries the victim suffered, such as scrapes, bruises, and soreness, were minor and “do

not rise to the level of substantial physical pain, illness, or any impairment of physical condition”

sufficient to support his conviction. Petitioner’s argument, however, misstates the record and

discounts the jury’s conclusion that the victim suffered bodily injury as a result of petitioner’s

attack.

While it is true that the victim testified that she did not experience any “substantial

physical pain from [her] injuries” and that none of her injuries were extreme, the jury also heard

evidence from Ms. Fisher, the nurse who examined the victim shortly after the attack. According

to Ms. Fisher, the victim reported a number of injuries, including a bruise to her left eye, pain in

her right lateral chest, joint and neck pain, and difficulty seeing and hearing immediately after

the attack. Moreover, the victim testified that petitioner held her by her neck for approximately

three seconds such that she was unable to breath and with enough force to leave a thumbprint on

her neck. Ms. Fisher corroborated this fact and indicated that the victim told her that, on a scale

of one to ten, the force petitioner applied to her neck was equivalent to an eight. As such, it is

clear that the jury was presented with sufficient evidence upon which to find that the victim

suffered bodily injury. Accordingly, we find petitioner is entitled to no relief in this regard.

Next, petitioner argues that the circuit court abused its discretion in prohibiting him from

presenting evidence about an alleged threat by the State made during plea negotiations.

According to petitioner, at the preliminary hearing the State indicated that if petitioner did not

accept a proposed plea agreement to enter a pretrial diversion program then it would seek an

indictment on the felony offense of strangulation. At trial, petitioner sought to introduce

evidence in support of this alleged threat to support his defense that the charges against him were

the result not of his guilt but of overzealous prosecution. The circuit court, however, ruled that

this evidence should be excluded under Rule 403 of the Rules of Evidence. We agree.

At the outset, we decline to adopt petitioner’s interpretation of the alleged statement by

the State during plea negotiations in this case. Assuming that petitioner is correct that the State

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did indicate that it would seek additional charges if a plea agreement was not reached, we note

that it is routine for prosecuting attorneys to engage in such negotiations. Indeed, the very basis

of plea negotiations is that a criminal defendant agrees to forego trial in exchange for the State’s

promise to reduce or even dismiss certain charges. State v. Palmer, 206 W.Va. 306, 310, 524

S.E.2d 661, 665 (1999) (addressing the requirement that the State fulfill a plea agreement when a

defendant’s plea is induced upon a promise). While petitioner characterizes the alleged statement

as a threat, it is clear that this was more accurately a promise to not seek an indictment on the

additional charge of strangulation should petitioner enter into a plea agreement. As such, we

decline to accept petitioner’s characterization that the State threatened him during the negotiation

process by indicating that additional charges could be sought if a plea deal was not reached.

Moreover, we agree with the circuit court that petitioner’s attempt to introduce evidence

of the plea negotiations would have resulted in unnecessary confusion of the issues at trial.

According to Rule 403, “[t]he court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: . . . confusing the issues,

misleading the jury. . . .” Simply put, the introduction of this evidence would have unnecessarily

confused the issues at trial, given that the prosecution’s decision to pursue an additional charge

of strangulation does not speak to any essential element of that crime or otherwise provide

petitioner a defense to the charge. While petitioner argues that his theory of defense at trial was

that “the charges against him were the product of an overreaching prosecution[,]” this theory has

nothing to do with the sufficiency of the evidence against him. As such, we find that the circuit

court did not err in excluding this evidence.

Finally, petitioner argues that the circuit court erred in denying his motion for a new trial.

According to petitioner, he obtained new evidence that, during jury deliberations, the victim’s

mother was terminated from her employment with the Berkeley County Prosecuting Attorney’s

office. According to petitioner, the victim’s mother “would [have] testif[ied] that she believes

she was terminated from employment due to not testifying favorabl[y] for the prosecution at

trial.” On appeal, petitioner argues that this evidence would have further supported his defense

that “the matter was pursued by an overreaching prosecution. . . .” As such, he asserts that it was

error for the circuit court to deny his motion for a new trial.5 We disagree.

We have previously held as follows:

“A new trial will not be granted on the ground of newly[]discovered

evidence unless the case comes within the following rules: (1) The evidence must

appear to have been discovered since the trial, and, from the affidavit of the new

5

In his motion for a new trial, petitioner additionally alleged that the victim “changed her

story” and indicated at sentencing that she “didn’t tell the whole truth” about the physical

altercation at issue. Petitioner also reiterated his assertion that the prosecution pressured the

victim and her mother into testifying against him. However, on appeal to this Court, petitioner

takes issue only with the circuit court’s ruling in regard to his allegation that the victim’s

mother’s firing constituted newly discovered evidence. As such, we will address the circuit

court’s ruling in regard to this lone issue on appeal.

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witness, what such evidence will be, or its absence satisfactorily explained. (2) It

must appear from facts stated in his affidavit that plaintiff was diligent in

ascertaining and securing his evidence, and that the new evidence is such that due

diligence would not have secured it before the verdict. (3) Such evidence must be

new and material, and not merely cumulative; and cumulative evidence is

additional evidence of the same kind to the same point. (4) The evidence must be

such as ought to produce an opposite result at a second trial on the merits. (5) And

the new trial will generally be refused when the sole object of the new evidence is

to discredit or impeach a witness on the opposite side.” Syllabus Point 1, Halstead

v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

Syl., State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979). As the circuit court noted below,

petitioner failed to provide any affidavits in support of his motion as required. We agree with the

circuit court that petitioner’s failure to include any supporting affidavits required denial of his

motion for a new trial. In short, petitioner simply alleged, without any evidence in support, that

the victim’s mother was terminated from her employment and would testify that it was a result of

her refusal to cooperate with the prosecution in petitioner’s criminal trial. As such, petitioner was

unable to satisfy the elements necessary to obtain a new trial based on newly discovered

evidence, and we find no error in the circuit court’s denial of the motion.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sitting by temporary assignment

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