State of West Virginia v. Kelly Marie Tusing

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

FILED

_____________________ June 14, 2022

released at 3:00 p.m.

No. 21-0115 EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

_____________________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,

v.

KELLY MARIE TUSING,

Defendant Below, Petitioner.

___________________________________________________________

Appeal from the Circuit Court of Preston County

The Honorable Steven L. Shaffer, Circuit Judge

Criminal No. 19-F-49

AFFIRMED, IN PART;

REVERSED, IN PART, AND REMANDED WITH DIRECTIONS

_________________________________________________________

Submitted: May 18, 2022

Filed: June 14, 2022

Jeremy B. Cooper, Esq. Patrick Morrisey, Esq.

Blackwater Law PLLC Attorney General

Aspinwall, Pennsylvania Katherine M. Smith, Esq.

Counsel for Petitioner Assistant Attorney General

Charleston, West Virginia

Counsel for Respondent

JUSTICE WOOTON delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “‘Where the issue on an appeal from the circuit court is clearly a question of

law or involving an interpretation of a statute, we apply a de novo standard of review.’

Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).”

Syl. Pt. 1, State v. McCartney, 228 W. Va. 315, 719 S.E.2d 785 (2011).

2. “‘W. Va. Const. art. VI, § 30, which requires that the object of an act of the

Legislature ‘shall be expressed in the title,’ serves two salutary purposes. First, it is

designed to give notice by way of the title of the contents of the act so that legislators and

other interested parties may be informed of its purpose. Second, it is designed to prevent

any attempt to surreptitiously insert in the body of the act matters foreign to its purpose

which, if known, might fail to gain the consent of the majority.’ Syl. pt. 1, State ex rel.

Walton v. Casey, 179 W. Va. 485, 370 S.E.2d 141 (1988).” Syl. Pt. 5, State ex rel. Marockie

v. Wagoner, 191 W. Va. 458, 446 S.E.2d 680 (1994).

3. “‘A cardinal rule of statutory construction is that significance and effect

must, if possible, be given to every section, clause, word or part of the statute.’ Syllabus

Point 3, Meadows v. Wal–Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).” Syl.

Pt. 2, T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564, 638 S.E.2d 167 (2006).

i

4. Following a defendant’s conviction on a charge of death of a child by parent,

custodian, or guardian by child abuse, West Virginia Code § 61-8D-2a(a)(2017), the

punishment authorized by West Virginia Code § 61-8D-2a(c) is an indeterminate sentence

of fifteen years to life.

5. “‘“The 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), overruled on other grounds by State ex rel. R.L. v.

Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).’ Syl. pt. 2, State v. Doonan, 220 W.Va. 8,

640 S.E.2d 71 (2006).” Syl. Pt. 12, State v. Rollins, 233 W. Va. 715, 760 S.E.2d 529 (2014).

6. “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

ii

are inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657,

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

iii

WOOTON, Justice:

In this case, the petitioner Kelly Marie Tusing (“the petitioner”) appeals from

her conviction in the Circuit Court of Preston County, West Virginia, on one count of death

of a child by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-2a(a)

(2017). 1 She raises five issues, two relating to the determinate sentence of one hundred

years imposed by the circuit court, two relating to the court’s evidentiary rulings, and one

relating to the sufficiency of the State’s evidence to prove malice and intent.

Following careful review of the parties’ written and oral arguments, the

appendix record, and the applicable law, we affirm the petitioner’s conviction, but reverse

the sentence imposed and remand the matter for resentencing, all as set forth infra.

I. Facts and Procedural Background

The facts of this case are tragic. In or about early 2018, the petitioner, who

was a friend of David L.,2 baby B.L.’s father, began babysitting the child on a fairly

1

West Virginia Code § 61-8D-2a(a) provides that

[i]f any parent, guardian or custodian maliciously and

intentionally inflicts upon a child under his or her care, custody

or control substantial physical pain, illness or any impairment

of physical condition by other than accidental means, thereby

causing the death of such child, then such parent, guardian or

custodian is guilty of a felony.

2

Because this case involves minors and sensitive matters, we follow our

longstanding practice of using initials to refer to the children and the parties. See, e.g., W.

1

frequent basis. On Thursday, November 8, 2018, at approximately 11:00 p.m., when B.L.

was twelve months old,3 she was brought to the petitioner’s home to spend the night; in

this regard, evidence in the appendix record suggests that the baby’s parents had a

tumultuous relationship and the petitioner was often asked to babysit when they were

involved in prolonged fighting. B.L. remained in the petitioner’s care through Saturday,

November 10, 2018. Critically, the petitioner subsequently admitted that from the period

of time between 11:00 a.m. and 2:03 p.m. on November 10 – other than a fifteen-to-twenty-

minute visit from unidentified “church people” – she was alone in her home with her two

children and B.L. At 2:03 p.m. the petitioner called Robin P., B.L.’s paternal grandmother,

and told her that B.L. had fallen off a bed and was not breathing. When Robin P. and her

husband arrived minutes later, B.L. was on the floor; according to Robin P., the baby was

not breathing, her skin was purple, and her eyes “were rolled in the back of her head.”

Robin P.’s husband called 9-1-1, and immediately after an Emergency Medical Technician

(“EMT”) arrived and visually assessed the baby, he “yelled out the door to call life-

flight[.]”

At West Virginia University Children’s Hospital in Morgantown, West

Virginia, B.L. was admitted in a comatose state and was put on a ventilator to help her

breathe. One of her treating physicians, Dr. Melvin Wright, testified that the baby’s brain

Va. R. App. P. 40(e); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d

123, 127 n.1 (1990).

3

The child was born in October of 2017.

2

was swollen, subdural bleeding was present, and that she had “multiple hemorrhaging in

both eyes in all layers of the retina.” Despite heroic measures taken to relieve the pressure

on B.L.’s brain,4 ultimately B.L.’s parents made the decision to remove her from life

support due to her extensive brain injuries and anticipated life-long vegetative state. 5

During the period of B.L.’s hospitalization, a police investigation commenced

led by Trooper Levi Hall with the West Virginia State Police, who interviewed the

petitioner on November 11, 2018; November 19, 2018; and January 11, 2019. During these

interviews the petitioner confirmed that she was “alone in the house with the kids” during

the operative time frame, and that B.L. began “[g]asping, [had a] dazed look, [was] foaming

4

Physicians performed an external ventricular drain (“EVD”) and hemicraniotomies

of the right and left sides of B.L.’s skull. According to the appendix record, an EVD is a

procedure in which a hole is drilled in the skull and a tube is threaded into the hole,

“through the brain and . . . into the ventricles.” A hemicraniotomy is a procedure in which

a surgeon “take[s] out a large circle of bone [from the skull] and that frees up space for the

brain to continue to expand.”

5

One of the baby’s treating physicians testified that B.L. suffered a

catastrophic brain injury, which should she survive, it would

be very likely that she will be rendered profoundly disabled

with lifelong disabilities manifested [as] an inability to breathe

by herself, she would need to be on a ventilator to have a

tracheostomy tube inserted in her throat and be hooked up to a

ventilator all the time. She will be blind. She will not be able

to see and interact with her environment. She wouldn’t

probably – very likely she wouldn’t be able to smile to her

parents or recognize her parents. She would never walk, never

talk. She would be, essentially, confined all her life in a long-

term care facility on technology.

3

at the mouth, [and] appeared to be having a seizure, twitching.” The petitioner also

admitted that she had deleted messages found on her phone from November 10, 2018,

which, together with the fact that “[t]he doctors had already told [Trooper Hall] that [the

baby’s condition] wasn’t from a fall,” eventually led the officer to exclude everyone other

than the petitioner from the criminal inquiry:

From the doctor[s’] opinions and their timeline. They all said

that [B.L. would have collapsed immediately upon receiving

that injury. The fact that it wasn’t from a fall, and from [the

petitioner’s] timeline, she puts herself at the house alone with

[B.L.] for several hours. Everyone else in this case agrees with

that, there’s no dispute on the timeline. [The petitioner] was

with that child for several hours alone.

Eventually, on March 5, 2019, the petitioner was indicted on one count of

death of a child by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-

2a(a). On October 5, 2020, the case proceeded to trial, with the State calling nine witnesses

and the defense calling three witnesses. In light of the petitioner’s admission to the police

that she was alone in the house with the baby during the critical three-hour window of time,

the key issue in the trial was whether B.L.’s catastrophic brain injuries were sustained on

November 10, 2018, when the child was in the petitioner’s care, or two to fourteen days

earlier, as the petitioner’s expert opined. In this regard, the State called three medical

experts: Dr. Melvin Wright and Dr. Claudiu Faraon, who treated B.L. at WVU Hospital’s

Pediatric Intensive Care Unit, and Dr. Allen Mock, the Chief Medical Examiner of West

Virginia. Dr. Wright testified that B.L. was admitted to the Unit in a comatose state and

was hooked up to a ventilator to help her breathe. The baby’s brain was swollen and

4

subdural bleeding was present; additionally, she had “hemorrhaging in both eyes in all

layers of the retina.” Dr. Wright testified unequivocally that in his opinion, B.L.’s injuries

could not have been caused from a fall from a bed and indeed, could not have been

sustained “from anything other than abusive head trauma.” Dr. Faraon stated that B.L.’s

injuries were “highly, highly indicative of nonaccidental injury to the brain, nonaccidental

trauma or inflicted brain injury.” He further testified that the injuries could not have been

sustained accidentally, and that within minutes of sustaining the injuries, the baby would

“become sleepy or lethargic, unable to wake up . . . [a]nd then she would progress to

become unresponsive and to become comatose.” Dr. Mock testified that B.L.’s injuries, all

of which were observed on autopsy, were the result of “multiple blunt force injuries of the

head.” He agreed with the testimony of Drs. Wright and Faraon that the injuries were not

caused by a fall from a bed, classifying the cause of B.L.’s death as homicide.

In contrast, the petitioner’s expert, Dr. David Myerberg, testified that the CT

scans taken soon after B.L.’s admission to the hospital showed the existence of a previous

injury that would have occurred two to fourteen days prior to November 10: “if you look

on the outside of that subdural hemorrhage, you see another line that is really fluid, and

that doesn’t happen in an acute subdural hemorrhage.” 6 Dr. Myerberg further opined that

the baby’s fall from the bed – reported by the petitioner as an accident that occurred when

6

Dr. Myerberg testified that the treating physicians had, for reasons unexplained,

ignored the findings of the hospital’s radiologist with respect to clear indications of prior

injury shown on the scans.

5

she was out of the room – would be sufficient to trigger the sequelae of that earlier injury.

Finally, in contrast to the testimony of the treating physicians that B.L.’s retinal

hemorrhaging was yet another indication of multiple blunt force trauma to her head,

whether by blows or shaking, Dr. Myerberg concluded that B.L.’s retinal hemorrhaging

was not indicative of the force of the trauma to her head but rather was most likely the

result of the pressure from her brain injury; “if you have pressure in the brain, it’s going to

move everything out of the way.”

On October 9, 2020, the jury returned a verdict of guilty, and by order entered

on January 7, 2021, the circuit court sentenced the petitioner to a determinate term of 100

years in prison. 7 This appeal followed.

II. Standard of Review

The petitioner raises five issues for this Court’s review on appeal, although only

four are addressed in this opinion.8 Because the assigned errors have different standards of

review, the applicable standard is set forth in the discussion of each issue.

7

Although the record of the sentencing hearing clearly shows that both the

prosecutor and defense counsel believed the sentence prescribed by West Virginia Code §

61-8D-2a(c) to be an indeterminate sentence of fifteen years to life, the State now argues

that the circuit court’s imposition of a determinate sentence was appropriate. See text infra.

8

See text infra. Given our conclusion herein that the petitioner’s determinate

sentence was illegal, her challenge to the proportionality of that sentence is moot.

6

III. Discussion

The first issue raised by the petitioner is the legality of her sentence;

specifically, she challenges the circuit court’s ruling that West Virginia Code § 61-8D-

2a(c) permits the imposition of a determinate sentence within a range of fifteen years to

life. Our standard of review here is well established: “‘[w]here the issue on an appeal from

the circuit court is clearly a question of law or involving an interpretation of a statute, we

apply a de novo standard of review.’ Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194

W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 1, State v. McCartney, 228 W. Va. 315, 719

S.E.2d 785 (2011).

As previously set forth, the petitioner was convicted of one count of death of

a child by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-2a(a), 9 for

which the penalty is set forth in West Virginia Code § 61-8D-2a(c):

Any person convicted of a felony described in subsection (a)

or (b) of this section shall be imprisoned in a state correctional

facility for a period of fifteen years to life. A person imprisoned

pursuant to the provisions of this section is not eligible for

parole prior to having served a minimum of fifteen years of his

or her sentence.

We begin with a brief overview of the statutory history. The current version of West

Virginia Code § 61-8D-2(a)(c) was codified following passage of the Enrolled Committee

Substitute for Senate Bill 288 on April 7, 2017:

9

See supra note 1.

7

AN ACT to amend the Code of West Virginia, 1931, as

amended, by adding thereto a new section, designated § 61-

8D-1a; and to amend and reenact § 61-8D-2a of said code, all

relating to naming the law10 and increasing the penalty for

death of a child by a parent, guardian, custodian or other person

by child abuse to an indeterminate term of fifteen years to life.

(Footnote and emphasis added). This clear expression of the object of the Bill, set forth in

its title,11 was faithful to the command of article VI, section 30 of the West Virginia

Constitution. 12

10

West Virginia Code § 61-8D-1a states in its entirety that “[t]he amendments made

to this article during the 2017 legislative session shall be known as Emmaleigh’s law.”

11

The State characterizes this language not as the title of the Bill but rather as a

“preamble,” relying on State ex rel. Lorenzetti v. Sanders, 235 W. Va. 353, 360, 774 S.E.2d

19, 26 (2015), which in turn relied on Slack v. Jacob, 8 W.Va. 612, 628 (1875) for the

proposition that “it is chiefly from the main body the purview of the act, that the will of the

Legislature is to be learned; when this is clear and express, the preamble will not avail to

contradict it.” Slack, 8 W. Va. at 613, Syl. Pt. 7, in part (emphasis added). Our research

indicates that these cases are outliers in our jurisprudence insofar as they adopt this

terminology and base their holdings on its use. However, we need not determine the

continuing vitality of Lorenzetti and Slack because in the instant case the so-called

preamble does not contradict the statutory language of West Virginia Code § 61-8D-2a(c)

but rather is wholly consistent with it.

Article VI, section 30 of the West Virginia Constitution, Acts to Embrace But

12

One Object – Time of Effect, provides in its entirety that

[n]o act hereafter passed, shall embrace more than one

object, and that shall be expressed in the title. But if any object

shall be embraced in an act which is not so expressed, the act

shall be void only as to so much thereof, as shall not be so

expressed, and no law shall be revived, or amended, by

reference to the title only; but the law revived, or the section

amended, shall be inserted at large, in the new act. And no act

of the legislature, except such as may be passed at the first

session under this Constitution, shall take effect until the vote

of two thirds of the members elected to each house, taken by

yeas and nays, otherwise direct.

8

W. Va. Const. art. VI, § 30, which requires that the object of

an act of the Legislature ‘shall be expressed in the title,’ serves

two salutary purposes. First, it is designed to give notice by

way of the title of the contents of the act so that legislators and

other interested parties may be informed of its purpose.

Second, it is designed to prevent any attempt to surreptitiously

insert in the body of the act matters foreign to its purpose

which, if known, might fail to gain the consent of the majority.

Syl. pt. 1, State ex rel. Walton v. Casey, 179 W. Va. 485, 370

S.E.2d 141 (1988).

Syl. Pt. 5, State ex rel. Marockie v. Wagoner, 191 W. Va. 458, 446 S.E.2d 680 (1994); see

also Syl. Pt. 6, in part, McCoy v. VanKirk, 201 W. Va. 718, 722, 500 S.E.2d 534, 538

(1997) (“A title must, at a minimum, furnish a ‘pointer’ to the challenged provision in the

act. The test to be applied is whether the title imparts enough information to one interested

in the subject matter to provoke a reading of the act.”) (citing Syl. Pt. 2, in part, Walton v.

Casey, 179 W. Va. at 485, 370 S.E.2d at 141).

Of particular relevance to this appeal, the prior version of section 61-8D-2a(c)

provided that

Any person convicted of a felony described in subsection (a)

or (b) of this section shall be punished by a definite term of

imprisonment in the penitentiary which is not less than ten nor

more than forty years. A person imprisoned pursuant to the

provisions of this section is not eligible for parole prior to

having served a minimum of ten years of his or her sentence or

the minimum period required by the provisions of section

thirteen, article twelve, chapter sixty-two of this code,

whichever is greater.

(Emphasis added). Both parties to this appeal agree that the prior version of the statute

established a determinate sentence. Further, the parties agree that the intent of the 2017

9

amendment was to increase the punishment for a violation of West Virginia Code § 61-

8D-2a(a), death of a child by parent, custodian, or guardian by child abuse, by ensuring

that any individual found guilty of the offense would be required to serve at least fifteen

years before becoming eligible for parole consideration, rather than ten years as was the

case with the predecessor statute. This is where the parties’ agreement ends. The issue

below, and the issue here on appeal, is whether the 2017 amendment established a

determinate or an indeterminate sentence.

At the petitioner’s sentencing, although both the State and the defense

proceeded on the apparent belief that the statutory sentence is an indeterminate term of

fifteen years to life, the circuit court found that “that statute is a determinate statute that

gives the Court the parameter to pronounce sentence on Ms. Tusing.” The basis for the

court’s decision was its observation that the “code section does not state not less than 15

years or more than life[,]” a linguistic construction often seen in statutes establishing

indeterminate sentences. The State now contends that the circuit court was correct, and

doubles down on the court’s rationale by asserting that the language “not less than x, nor

more than y” is “the characteristic indeterminate sentence language.” (Emphasis added).

We disagree with this analysis for two primary reasons.

First, the circuit court was simply incorrect in its assumption that “not less

than . . . or more than” is the sine qua non of an indeterminate sentence. To the contrary,

Chapter 61 of the Code contains a number of statutes which use the construction in

10

sentences that are expressly designated as determinate. For example, in West Virginia Code

§ 61-3C-14b(b) (2020), the Legislature set forth the following punishment for soliciting a

minor via computer and traveling to engage the minor in prohibited sexual activity:

“imprison[ment] in a state correctional facility for a determinate sentence of not less than

five nor more than thirty years[.]”; see also West Virginia Code § 61-7-12 (2020) (one

convicted of wanton endangerment with a firearm “shall be confined in the penitentiary for

a definite term of years of not less than one year nor more than five years[.]”); West

Virginia Code § 61-8B-5(b) (2020) (one convicted of sexual assault in the third degree

“shall be imprisoned in a state correctional facility for a definite term of years of not less

than one year nor more than five years[.]”); West Virginia Code § 61-2-3 (2020) (one

convicted of second degree murder “shall be punished by a definite term of imprisonment

in the penitentiary which is not less than ten nor more than forty years.”); West Virginia

Code § 61-2-4 (2020) (one convicted of voluntary manslaughter “shall be punished by a

definite term of imprisonment in the penitentiary which is not less than three nor more than

fifteen years.”). Indeed, in the predecessor statute to West Virginia Code § 61-8D-2a(c) –

which both parties agree was a determinate sentence – the punishment prescribed was a

“definite term of imprisonment in the penitentiary which is not less than ten nor more than

forty years.” Second, in any event no amount of linguistic gymnastics can overcome the

clear and unambiguous intent expressed by the Legislature in the 2017 enactment of section

61-8D-1a and reenactment and amendment of section 61-8D-2a. Such intent was clearly

expressed in the title to the Bill, see text supra, and then again in the Legislature’s 2017

11

Bill Summary, 13 which described the Committee Substitute for Senate Bill 288 as a “bill

increas[ing] the penalty for child abuse causing death from a determinate sentence of 10-

40 years to an indeterminate sentence of 15 years to life.” (Emphasis added). In short,

where there is no ambiguity in the Bill’s title, in the statutory language, or in the legislative

description thereof, there is no room for the type of linguistic exegesis employed by the

circuit court.

The State further argues that the circuit court’s decision should be affirmed

on any of several alternate grounds. First, the State contends that section 61-8D-2a(c)

clearly and unambiguously establishes a determinate sentence of fifteen years to life, and

therefore what the State persists in calling the “preamble” cannot be considered. In that

regard,

[w]hen this Court’s resolution of an issue requires us to pass

upon the meaning of a statute or rule, “[w]e look first to the

statute’s language. If the text, given its plain meaning, answers

the interpretive question, the language must prevail and further

inquiry is foreclosed.” Appalachian Power Co. v. State Tax

Dep’t of West Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424,

438 (1995). See also Foster Found. v. Gainer, 228 W. Va. 99,

110, 717 S.E.2d 883, 894 (2011) (“Statutes whose language is

plain must be applied as written.”); Syl. pt. 2, State v. Epperly,

135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision

[that] is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will

be given full force and effect.”).

13

https://www.wvlegislature.gov/legisdocs/committee/senate/judiciary/jud_summaries_2017.pdf.

12

Brickstreet Mut. Ins. Co. v. Zurich Am. Ins. Co., 240 W. Va. 414, 423, 813 S.E.2d 67, 76

(2018). The problem with this argument is that the State’s factual premise is fatally flawed

in multiple respects. First, as we have previously explained, see supra note 11, the language

that the State would have this Court ignore is not a “preamble”; rather, it is the title of the

Bill. Second, it is difficult to imagine a circumstance in which this Court would find that a

statute is clearly and unambiguously something other than what the Legislature has clearly

and unambiguously described it to be: “an indeterminate sentence of 15 years to life.”

Third, the State overlooks the fact that while the predecessor statute expressly stated that

the penalty (then ten-to-forty years) was “definite” (a word used interchangeably with

determinate throughout the criminal penalty provisions of the Code), the amended statute

does not. In short, regardless of the State’s desire to read the word “definite” or

“determinate” into West Virginia Code § 61-8D-2a(c), it is simply not there. See Banker v.

Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (“It is not for this Court

arbitrarily to read into [a statute or administrative rule] that which it does not say. Just as

courts are not to eliminate through judicial interpretation words that were purposely

included, we are obliged not to add to statutes [and administrative rules] something the

Legislature purposely omitted.”) (emphasis added and citations omitted).

Next, the State argues that the second sentence of section 61-8D-2a(c), which

states that “[a] person imprisoned pursuant to the provisions of this section is not eligible

for parole prior to having served a minimum of fifteen years of his or her sentence[,]” is

wholly superfluous if the sentence of “fifteen years to life” is indeterminate. This follows,

13

the State contends, because an individual serving an indeterminate sentence of fifteen years

to life will always have to serve the minimum term, fifteen years, before becoming eligible

for parole. See id. § 62-12-13(b)(1)(A) (“Any inmate of a state correctional institution is

eligible for parole if he or she . . . [h]as served the minimum term of his or her indeterminate

sentence or has served one fourth of his or her definite term sentence, as the case may

be[.]”). Thus, the State concludes, because “[i]t is not presumed that the Legislature

intended any part of a statute to be without meaning,” Jackson v. Monitor Coal & Coke

Co., 98 W. Va. 58, 63, 126 S.E. 492, 494 (1925), this Court must, in effect, presume the

opposite: that the inclusion of the second sentence in the statute conclusively shows that

the statutory sentence is determinate.

We decline to take this giant leap of logic. We have held that “‘[a] cardinal

rule of statutory construction is that significance and effect must, if possible, be given to

every section, clause, word or part of the statute.’ Syllabus Point 3, Meadows v. Wal–Mart

Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).” Syl. Pt. 2, T. Weston, Inc. v. Mineral

Cnty., 219 W. Va. 564, 638 S.E.2d 167 (2006). In the case at bar, the second sentence of

section 61-8D-2a(c) indeed has significance: it explains both the legislative intent to

increase the punishment and also how the new indeterminate sentence will have that effect:

pursuant to the indeterminate sentence a defendant will have to serve at least fifteen years

before being eligible for parole, whereas a defendant sentenced under the old statute to the

maximum determinate forty-year sentence would be eligible for parole in ten years. In this

regard, it is noteworthy that the second sentence of the statute mirrors a similar provision

14

contained in the predecessor statute, making the intent of the Legislature obvious: by

deleting the word “definite” and increasing the minimum time served before an individual

becomes eligible for parole consideration, the Legislature puts everyone on notice that the

crime will henceforth carry a heavier penalty than it did before.

Finally, the State argues that the sentence imposed by the circuit court should

be affirmed as a definite (determinate) term imposed pursuant to West Virginia Code § 61-

11-16, which provides, in relevant part, that

[e]very sentence to the penitentiary of a person convicted of a

felony for which the maximum penalty prescribed by law is

less than life imprisonment . . . shall be a general sentence of

imprisonment in the penitentiary. In imposing this sentence,

the judge may, however, designate a definite term, which

designation may be considered by the Board of Probation and

Parole [Division of Corrections] as the opinion of the judge

under the facts and circumstances then appearing of the

appropriate term recommended by him to be served by the

person sentenced.

We reject the State’s suggestion, raised for the first time at oral argument, that section 61-

11-16 somehow allows a circuit judge to override a statutory indeterminate sentence and

substitute a determinate sentence. We specifically held to the contrary in Cohn v. Ketchum,

123 W. Va. 534, 17 S.E.2d 43 (1941), writing that “[u]nder the indeterminate sentence law,

the trial court in imposing sentence is only empowered to impose a general sentence of

imprisonment in the penitentiary as provided by law for the offense involved[.]” Id. at 534,

17 S.E.2d at 43, Syl. Pt. 4, in part. We further held that “the inclusion in [the] court’s order

. . . that defendant should be incarcerated for the term of one year, was without effect and

15

conferred no rights on defendant to be released from imprisonment after one year.” Id.

(emphasis added). We acknowledge, however, that the statute allows a court to add a

suggestion to its sentencing order as to the length of time an offender should serve, in the

court’s opinion, before being granted parole 14 – a recommendation that is not binding, as

parole eligibility is determined by statute, W. Va. Code § 62-12-13(b)(1)(A), and “[t]he

final determination regarding the release of inmates from penal institutions . . . shall remain

within the exclusive jurisdiction of the board of probation and parole[,]” W. Va. Code §

62-13-2(b) (2020). 15 See Hamrick v. Boles, 229 F. Supp. 570, 571 (N.D.W. Va. 1964)

(“The indeterminate sentence statute (Code Chapter 61, Article 11, Section 16; Michie’s

Code, Section 6128), which is applicable to the amended robbery statute, makes provision

for recommendations of a definite term by the sentencing judge, but those

recommendations are not binding upon the Board of Pardon and Parole, which, alone, has

jurisdiction to determine the period of confinement under the indeterminate sentence.”). In

summary, we find that West Virginia Code § 61-11-16 does not alter the circuit court’s

14

For example, in State v. Bennett, 172 W. Va. 123, 304 S.E.2d 28 (1983), the circuit

court recommended that the defendant serve three years of his one-to-five-year sentence.

Assuming the accrual of good time by the defendant, the defendant would have discharged

his sentence in 2 ½ years; thus, it would have been impossible for the board of probation

and parole to follow the court’s recommendation even if it were otherwise inclined to do

so. Nonetheless, we found no error in the court’s recommendation, inasmuch as the board

has the authority to follow or ignore any such recommendation.

15

Although the Legislature has “transferred the administration of the board of

probation and parole to the department of military affairs and public safety,” W. Va. Code

§ 62-13-7 (2022), the decision-making function of the board with respect to an inmate’s

release on parole remains intact.

16

duty to impose an indeterminate sentence and, on remand, we direct the court to impose

such an indeterminate sentence as statutorily required. However, we leave it to the circuit

court, as envisioned by West Virginia Code § 61-11-16, to make any non-binding

recommendations that it may, in its discretion, deem appropriate as to the minimum period

of confinement the petitioner should serve before parole is granted.

We are sympathetic to the circuit court’s conclusion, after having listened to

all of the facts and evidence at trial and reviewed all of the facts and evidence compiled for

purposes of sentencing – including evidence that, to the court, signified the petitioner’s

lack of remorse and attempt to shift the blame – that this was a heinous crime that called

for a very severe punishment, one that would extend the petitioner’s parole eligibility date

well beyond fifteen years. Nonetheless, punishment for the crime of which the petitioner

stands convicted cannot extend beyond that clearly and unambiguously established by the

Legislature in West Virginia Code § 61-8D-2a(c): an indeterminate sentence of fifteen

years to life. So that there can be no confusion in the future, we now hold that following a

defendant’s conviction on a charge of death of a child by parent, custodian, or guardian by

child abuse, West Virginia Code § 61-8D-2a(a)(2017), the punishment authorized by West

Virginia Code § 61-8D-2a(c) is an indeterminate sentence of fifteen years to life.

Accordingly, we reverse the petitioner’s sentence and remand this case for imposition of

an indeterminate sentence of fifteen years to life, in conformity with the statute.

17

Next, the petitioner challenges two evidentiary rulings made by the circuit

court, the first admitting photographs which the petitioner claims to be “gruesome,” and

the second refusing to admit a letter opinion prepared by a defense medical expert who did

not testify at trial. With respect to our review of both of these rulings, we have 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), overruled on

other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435,

452 S.E.2d 893 (1994).’ Syl. pt. 2, State v. Doonan, 220 W.Va.

8, 640 S.E.2d 71 (2006).”

Syl. Pt. 12, State v. Rollins, 233 W. Va. 715, 760 S.E.2d 529 (2014). We turn now to these

assignments of error.

First, the petitioner contends that the circuit court erred by admitting so-called

“gruesome photographs,” including autopsy photographs, without considering the

prejudicial impact of the evidence. In this regard, 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 one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.”

18

In an in limine motion filed prior to trial, the State filed a motion to admit

thirteen photographs, including autopsy photographs, at trial. Those photographs, twelve

of which are included in the appendix record, 16 were described as follows:

1. B.L. in hospital on November 11, 2018, after receiving emergency surgery,

showing medical intervention;

2. B.L. in hospital on November 11, 2018, showing bruise above eye;

3. B.L. in hospital on November 11, 2018, after receiving emergency surgery,

showing medical intervention;

4. Condition of B.L. following death on November 18, 2018;

5. Condition of B.L. following death on November 18, 2018;

6. Autopsy photograph showing scapular hemorrhages;

7. Autopsy photograph showing scapular hemorrhages;

8. Autopsy photograph showing superficial bruising on B.L.’s head;

9. Photograph excluded as duplicative, see supra note 16;

10. Autopsy photograph showing subscalpular hemorrhage, subdural

hemorrhage, subarachnoid hemorrhage, cerebral edema, and cerebral

contusion;

11. Autopsy photograph showing subdural hemorrhage;

12. Autopsy photograph showing cerebral contusion; and

13. Autopsy photograph showing optic nerve sheath hemorrhage.

16

The circuit court refused to admit one of the photographs on the ground that it

was duplicative, and this photograph has not been included in the record.

19

Over the petitioner’s objection that the photographs were “gruesome,” see

text infra, the circuit court initially ruled that photographs 1, 2, 3, 4, 5, and 8 would be

admitted as evidence at trial, concluding that although they were “undeniably difficult

photographs to view,” they were necessary to the State’s case to demonstrate “the extent

of medical intervention, bruising, and general condition of B.L.” Thereafter, following an

in camera hearing on the fourth day of trial in which the Chief Medical Examiner of West

Virginia testified “regarding whether the [remaining] photographs pertained to his

testimony and what injuries each photograph would show[,]” the court ruled that

photographs 6, 7, 8,17 10, 11, 12, and 13 would also be admitted as evidence.

Any analysis of a “gruesome photographs” objection must begin with this

Court’s seminal opinion in State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994), in which

we held that

Rule 401 of the West Virginia Rules of Evidence requires the

trial court to determine the relevancy of the exhibit on the basis

of whether the photograph is probative as to a fact of

consequence in the case. The trial court then must consider

whether the probative value of the exhibit is substantially

outweighed by the counterfactors listed in Rule 403 of the

West Virginia Rules of Evidence. As to the balancing under

Rule 403, the trial court enjoys broad discretion. The Rule 403

balancing test is essentially a matter of trial conduct, and the

17

Although photograph 8 had previously been deemed admissible, the court noted

that “this exhibit was discussed during the in camera hearing and reidentified, thus the

[c]ourt included it in the discussion regarding the exhibit in this order.”

20

trial court’s discretion will not be overturned absent a showing

of clear abuse.

Derr, 192 W. Va. at 168, 451 S.E.2d at 734.18

The entirety of the petitioner’s “gruesome photographs” argument hinges on

the circuit court’s failure to explicitly find that the probative value of the photographs,

which the court discussed at some length, outweighed their prejudicial impact, which the

court mentioned only obliquely, noting that the photos were “undeniably difficult . . . to

view.” In making this argument, the petitioner would have this Court presume that the

prejudicial impact of autopsy photographs of a baby – for the existence of some prejudicial

impact cannot reasonably be denied in such a case – is so great that exposure to this

evidence would cause the jury to rush headlong to a guilty verdict regardless of each juror’s

sworn oath to decide the case based solely on the evidence and the law. See supra note 18.

This is exactly the approach eschewed in Derr and all of the other “gruesome photos”

challenges in the decades that followed. See, e.g., State v. Berry, 227 W. Va. 221, 231, 707

SE.2d 831, 841 (2011) (“‘The average juror is well able to stomach the unpleasantness of

exposure to the facts of a murder without being unduly influenced. . . . [G]ruesome or

18

This was a marked departure from our earlier case law, which unquestioningly

accepted a presumption that the “impact on the jury [of gruesome photos] is such that it

will become so incensed and inflamed at the horrible conditions depicted that it will not be

able to objectively decide the issue of the defendant’s guilt[,]” State v. Clawson, 165 W.

Va. 588, 612, 270 S.E.2d 659, 674 (1980), and therefore the photos “must have something

more than probative value . . . [t]he State must show that they are of essential evidentiary

value to its case.” State v. Rowe, 163 W. Va. 593, 595-96, 259 S.E.2d 26, 28 (1979).

21

inflammatory pictures exists more in the imagination of judges and lawyers than in

reality.’”) (citations omitted); State v. Copen, 211 W. Va. 501, 505, 566 S.E.2d 638, 642

(2002) (“a trial court’s exercise of discretion in ruling on the admission of potentially

gruesome photographs should not be overturned by this Court absent a showing of clear

abuse.”). Further, in asking this Court to presume that the prejudicial impact of this

evidence outweighs its probative value, the petitioner ignores our well-established standard

of review:

The balancing of probative value against unfair prejudice is

weighed in favor of admissibility and rulings thereon are

reviewed only for an abuse of discretion. . . . In considering the

prejudicial effect of prior bad acts, we have eschewed any

absolute or per se rules. Rather, this Court applies a

reasonableness standard and examines the facts and

circumstances of each case. This Court reviews disputed

evidence in the light most favorable to its proponent,

maximizing its probative value and minimizing its prejudicial

effects.

State v. LaRock, 196 W. Va. 294, 312, 470 S.E.2d 613, 631 (1996) (citations omitted and

emphasis added).

In the absence of evidence showing that the prejudicial impact of the

photographs was such that the jury would have been unable “to objectively decide the issue

of the defendant’s guilt[,]” Clawson, 165 W. Va. at 612, 270 S.E.2d at 674, we decline to

disturb the ruling of the circuit court. In this regard, we conclude that this case, dealing

with photographs that were, in the words of the circuit court, “undeniably difficult . . . to

view,” is markedly similar to State v. Waldron, 218 W. Va. 450, 624 S.E.2d 887 (2005),

where we wrote that

22

[t]he exhibits were not hideous, ghastly, horrible, or dreadful.

They were relevant and probative in showing the jury the

condition, identity, and location of wounds on the body, and

any speculative prejudicial effect was outweighed. The

photographs simply were not of the nature to arouse passion

and cause the jury to decide this case on improper grounds.

Here, we refuse to interfere with the trial court's exercise of its

discretion in admitting the photographs or in allowing

testimony regarding the photographs.

Id. at 458, 624 S.E.2d at 895 (emphasis added).

In her third assignment of error, the petitioner contends that the circuit court

erred in refusing to admit a letter that was, as she characterizes it, “obtained from another

doctor and relied upon by the [p]etitioner’s expert witness.” The initial – and ultimately

fatal – flaw in this argument is that the petitioner’s expert witness, Dr. David Myerberg,

specifically testified that he did not rely on the letter opinion of Dr. Frederick Gabriele, a

neuroradiologist, in formulating his own opinion.

Q: Dr. Myerberg, I’m going to show you – this is

just a copy, this is not what’s in evidence, Mr. Frame’s going

to put it in evidence, but that’s a copy of what you’re talking

about from Dr. Gabriel[e]; correct?

A: Yes, that is correct.

Q: Okay. And that’s this document right here, that

was written by Dr. Gabriel[e]; correct?

A: That is correct.

Q: And this is his opinion, correct?

A: That’s his opinion, yeah.

Q: That – this document is his opinion. And you

indicated – well, it’s indicated in the expert witness disclosure

23

that the correct reading of the initial CT scan was relied upon

by you – by Dr. Myerberg – or I’m sorry, Dr. Gabriel[e], he’s

the one who provided you that opinion?

A: He provided me that opinion when I went to him.

When I first saw the CT scan myself, that was my opinion.

Q: But you’re not a radiologist, either, right?

A: No, ma’am. I’m not.

Q: Okay. And so you relied on this opinion to make

your findings, is that what you’re telling the Court?

A: No, I’m telling the Court that I basically

confirmed my opinions by going to Dr. Gabriel[e]. That was

my – my way of practicing medicine when I was practicing

medicine, and it’s the way that I conduct myself as an expert.

(Emphasis added). Thus, the letter opinion of Dr. Gabriele did not fall within the ambit of

Rule 703 of the West Virginia Rules of Evidence, which provides, in relevant part, that

[a]n expert may base an opinion on facts or data in the case that

the expert has been made aware of or personally observed. If

experts in the particular field would reasonably rely on those

kinds of facts or data in forming an opinion on the subject, they

need not be admissible for the opinion to be admitted.

See Wilson v. Wilson, 208 W. Va. 581, 583, 542 S.E.2d 402, 404 (2000) (psychologist may

base his or her opinions upon “observations, interviews, and counseling sessions with . . .

patients and their families. Such opinions are permissible under Rule 703 and should not

be disregarded as hearsay.”). In the instant case, the letter opinion from Dr. Gabriele shed

no light on Dr. Myerberg’s reasoning in arriving at his own opinion, which is the “limited

and independent purpose” for the admission of otherwise inadmissible data pursuant to

Rule 703. State v. Lambert, 236 W. Va. 80, 96, 777 S.E.2d 649, 665 (2015) (citing 2 LOUIS

24

J. PALMER, JR., ROBIN JEAN DAVIS & FRANKLIN D. CLECKLEY, HANDBOOK ON EVIDENCE

FOR WEST VIRGINIA LAWYERS § 705.02, at 154–55). Rather, Dr. Myerberg sought an

opinion from Dr. Gabriele for the sole purpose of confirming an opinion he had already

formed, as follow-up questioning of Dr. Myerberg by the circuit court made abundantly

clear:

QUESTIONING BY THE COURT:

Q: I just want to get clarification. Dr. Myerberg, it’s my

understanding that you’re saying you looked at this, you

looked at these scans and you formed your own opinion.

A: Correct.

Q: And basically, all you did with Dr. Gabriel[e] was you went

down there and he confirmed your opinion.

A: Absolutely.

Q: Nothing he did helped you make your opinion?

A: No.

Following this exchange, the court made the following findings of fact and conclusions of

law, the former which are indisputable and the latter which are, at the very least, within the

broad ambit of the court’s discretion: 19

Okay. I’m going to stand by my ruling. I believe that

that clarifies my ruling. That basically [Dr. Myerberg] did not

use an opinion of another expert to form his own opinion. [Dr.

A trial court’s evidentiary rulings, as well as its application of the Rules of

19

Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 5, in part,

State v. Gibbs, 238 W. Va. 646, 797 S.E.2d 623 (2017); Rollins, 233 W. Va. at 720, 760

S.E.2d at 535, Syl. Pt. 12, in part.

25

Myerberg] formed his own opinion and all he was doing was

looking for confirmation.

And so basically Dr. Gabriel[e] is not here to be

qualified as an expert, so basically, you know, I’m not going to

permit [Dr. Gabriele’s] letter to be shown to the jury.

Further, our case law has never gone so far as to classify one expert’s letter

opinion on the merits of a specific case as “facts or data” upon which a second expert may

reasonably rely in formulating his or her opinion in that same case. Statistics, learned

treatises, peer-reviewed articles in professional magazines – these types of materials are

far removed from a letter opinion on the merits of the particular case, prepared by an

individual who will not be subject to cross-examination. And finally, although Dr.

Gabriele’s letter opinion was not admitted into evidence and therefore not published to the

jury, the circuit court permitted Dr. Myerberg to testify that “Like Dr. Wright, I wanted to

be absolutely sure that I was seeing this [the evidence of prior injury] well, and I consulted

as he did a neuroradiologist, who agreed with my findings.” Therefore, prejudice, if any,

arising from the circuit court’s refusal to admit the letter was minimal at best, and we find

no abuse of discretion in regard to the circuit court’s ruling.

Finally, the petitioner challenges the sufficiency of the evidence to establish

two essential elements of the crime, malice and intent. Our standard of review, reiterated

many times over the past decades, was formulated in syllabus point three of State v.

Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

26

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.

We begin with the operative statute that defines the crime of death of a child

by parent, custodian, or guardian by child abuse, W. Va. Code § 61-8D-2a(a). We have

held that

[t]o obtain a lawful conviction under West Virginia Code § 61-

8D-2a(a), the State must prove that the defendant

“maliciously and intentionally inflict[ed] upon a child under

his or her care, custody or control substantial physical pain,

illness or any impairment of physical condition by other than

accidental means, thereby causing the death of such child[.]”

State v. Bowen, No. 19-1162, 2022 WL 972260, at *5 (W. Va. Mar. 31, 2022)

(memorandum decision). The petitioner’s argument on this point is remarkedly brief – the

bulk of the argument is nothing more than a verbatim recitation of the parties’ arguments

made to the circuit court in support of or in opposition to the petitioner’s motion for

judgment of acquittal at the close of the State’s case-in-chief – and boils down to the fact

that “there [was] no evidence of use of a deadly weapon, and no evidence of ill will or a

source of antagonism between the [petitioner] and the decedent.”

27

This argument must fail, as “‘malice’ and ‘intent’ may be inferred from the

nature of the criminal conduct.” Bowen, 2022 WL 972260, at *5. As the State points out,

the evidence was undisputed that B.L. was in the petitioner’s sole care for at least three

hours prior to the baby’s becoming unresponsive; the petitioner did not call 9-1-1; although

the petitioner claimed that the baby’s traumatic brain injuries resulted from a fall from a

bed, the treating physicians all agreed that such a fall could not have caused those injuries;

and those physicians all agreed that the injuries were not accidental but rather were caused

by intentional, abusive head trauma. In Bowen, on facts substantially similar to those in the

case at bar, we found that

[a]t trial, both medical experts, Dr. Mock and Dr.

Phillips, testified that L.H.’s death was caused by a series of

blunt force injuries to L.H.’s head, which were not accidental.

The evidence also showed that petitioner was alone with L.H.

during the timeframe in which those injuries were inflicted.

This evidence supports the conclusion that petitioner inflicted

the blunt force injuries upon L.H. that caused, among other

things, her brain to swell; her left eye to protrude; and

ultimately, her death. The level of brutality necessary to inflict

these injuries formed a sufficient basis for the jury to

reasonably infer that petitioner acted intentionally and

with malice. Thus, we reject this assignment of error.

Id. (emphasis added). As was the case in Bowen, this Court has reviewed the entirety of

the trial transcript and concludes that the evidence was sufficient to establish beyond a

reasonable doubt that the petitioner acted intentionally and with malice when she inflicted

head trauma upon a defenseless baby, B.L. – head trauma so severe that it resulted in B.L.’s

28

death when she was barely thirteen months old. See Guthrie, 194 W. Va. at 663, 461 S.E.2d

at 169, Syl. Pt. 3.

IV. Conclusion

For the foregoing reasons, we affirm the petitioner’s conviction. However, we

reverse the determinate sentence imposed by the circuit court and remand this matter for

resentencing pursuant to the applicable statute, West Virginia Code § 61-8D-2a(c).

Affirmed in part; Reversed in part, and

remanded with instructions.

29