Summaries of 34 opinions of the Supreme Court of Appeals of West Virginia issued in the closing days of the September 2004 term were posted today, completing the summaries of all opinions issued in the previous term of court. These summaries comprise the content of Issue #74 of the e-mail opinion summary service. [Subscribe to the e-mail service here. Alternatively, subscribe to the RSS feeds for: Recent Opinions, Civil Topics, Criminal Topics or Family Topics. To learn more about courts and RSS feeds, read this explanation.]

The January 2005 term of court commences tomorrow with a full Motion Docket and Argument Docket. As a new feature, the briefs in cases set for argument are now posted online, approximately two weeks prior to the scheduled argument. Visit the relevant Argument Docket link on the Court's main calendar page to see the list of available briefs.

Finally, as usual, tomorrow's appellate proceedings will be webcast live.

IN RE: ADOPTION OF WILLIAM ALBERT B., et al., No. 31728 (Per Curiam)(McGraw, J., dissenting)(December 8, 2004). Reversing an order of the Circuit Court of Tyler County holding that a father had abandoned his three children, and allowing the children to be adopted by their maternal grandparents, while at the same time the children were the subject of a pending custody dispute in a divorce action between their parents filed in the Family Court of Ritchie County. Holding that the evidence does not support a presumption that the appellant abandoned his children as set forth in WV Code 48-22-306, and that he followed the proper, established legal route to obtain custody and visitation with his children. Remanded for further proceedings.

STATE v. BRIAN BUSH FERGUSON, No. 31720 (Per Curiam)(December 3, 2004). Affirming a conviction for first degree murder, without mercy, following a jury trial in the Circuit Court of Monongalia County. Rejecting numerous assignments of error, holding that statements were properly admitted as excited utterances, that the defendant opened the door to references to his pre-trial silence, and that sufficient evidence existed to support the verdict.

STATE v, JAMES REGINALD JONES, II, No. 31590 (Per Curiam)(December 3, 2004). Reversing a conviction for two counts of second degree murder following a jury trial in the Circuit Court of McDowell County. Holding that post-polygraph test statements admitted at trial were obtained in violation of the defendant's right to counsel and right to remain silent. Holding that a defendant's voluntary waiver of rights in order to take a polygraph test does not automatically extend to the post-test interview, where the police, without notice to the defendant's counsel, may conduct an interrogation "that would under any other circumstances be utterly unthinkable."

STATE v. MARYBETH DAVIS, No. 31679 (per Curiam)(Starcher, J., dissenting)(December 2, 2004). Affirming an order of the Circuit Court of Greenbrier County that denied a motion for new trial based upon after-discovered evidence. Holding that the trial court did not abuse its discretion in denying the motion, in light of the fact that the evidence was available but not obtained by the appellant prior to trial, and was cumulative evidence that would not bring about a different result at a second trial.

STATE v. KRISTY DONLEY, No. 31649 (ALBRIGHT, J.)(December 2, 2004). Reversing a conviction for eight counts of concealing a minor child following a jury trial in the Circuit Court of Hancock County. Holding that the admission of a family court order in its entirety was an abuse of discretion, where the probative value of the entire text of the order, which contained the family court judge's comments of a stern and condemning nature, was substantially outweighed by the danger of unfair prejudice. Setting forth standards for admission of a family court order pursuant to Rule 403 of the Rules of Evidence. Remanding for a new trial.

STATE v. MICHAEL O'DELL DENNIS, No. 31578 (ALBRIGHT, J.)(December 1, 2004). Granting mixed relief in an appeal from the Circuit Court of Ohio County after a jury convicted the appellant of kidnapping, second degree robbery, two counts of second degree sexual assault, violating a domestic violence protective order and domestic battery. Holding that sexual assault in the second degree and robbery may constitute continuing offenses for purposes of exercising territorial jurisdiction in a criminal prosecution, if the facts demonstrate that at least one substantial or material element of the alleged crime occurred within this state as part of a sequential chain of events. Further holding that once a trial court has determined as a matter of law that the elemental act or consequence at the heart of the evidence would be sufficient to establish jurisdiction, the jury should determine whether the evidence demonstrates beyond a reasonable doubt that the act or consequence at issue actually occurred within the borders of the state. Because the jury had been instructed at trial to make this determination by a preponderance of the evidence, reversing the robbery and sexual assault convictions. Rejecting the remaining assignments of error, and remanding for further proceedings.

STATE v. MICHAEL WAYNE FISKE, No. 31714 (Per Curiam)(December 1, 2004). Reversing an order imposing two concurrent 2 to 10 year sentences for the offenses of forgery and uttering. Appellant wrote a $33.92 check on an account registered in his grandfather/adoptive father's name, and returned to the store later in the day to retrieve the check. The account had been closed, and the check was not presented for payment. The grandfather testified at trial that he may have authorized the expense, and that he did not believe the appellant had intended to defraud him or that he had been prejudiced in any way by the appellant's actions. Holding that the evidence adduced by the State was inadequate to establish the State's burden of establishing prejudice or intent to prejudice the rights of another beyond a reasonable doubt, and that the circuit court erred in failing to enter a judgment of acquittal.

ADKINS v. CLINE, etc. -AND- ARBAUGH v. CLINE, etc., Nos. 31693 & 31694 (Per Curiam)(December 1, 2004). Affirming orders of the Circuit Court of Lincoln County that reversed administrative license revocations and remanded for further administrative determinations In light of CHOMA v. DMV, 210 WV 256, 557 SE2d 310 (2001). Though technically moot, holding that open-ended stays of revocation previously ordered by the circuit court were erroneous, and directing that any similar pending cases proceed to resolution as soon as practicable, and that no additional stays in violation of WV Code 17C-5A-2 should be ordered. Clarifying the prospectivity of the Court's holding in CHOMA, which should be applied in any judicial determination of administrative license revocation made after November 28, 2001, the date when the opinion in CHOMA was filed.

STATE v. TOMMY ROHRBAUGH, No. 31618 (DAVIS, J.)(Starcher, J., concurring)(December 1, 2004). Reversing an order of the Circuit Court of Grant County that restored the fight to bear a firearm to a convicted felon. Holding that the circuit court erred in applying the pre-2000 version of WV Code 61-7-7; although the appellant completed his sentence in 1997, the amended statute is regulatory only and therefore does not violate constitutional ex post facto principles and must be applied. Because the 2000 version of the statute precludes those convicted of felony sexual offenses from petitioning for restoration of firearm rights, the circuit court erred in granting the petition. Further holding that the statute is constitutional as a narrowly-tailored exercise of the police power by the Legislature.

SER CARLOS FIELDS v. McBRIDE, No. 31798 (Per Curiam)(December 1, 2004). Denying a writ of habeas corpus sought by inmate at Mount Olive Correctional Center in connection with an alleged denial of good time credit and physical abuse by prison guards. Finding that the record presented to the Court did not demonstrate that the administrative remedies set forth in W. Va. C.S.R. 90-9-3 et seq. had been fully exhausted, and therefore declining to address the merits of the issues presented.

STATE v. MYRA LEA ANGELL, et al., No. 31787 (ALBRIGHT, J.)(Davis, J., disqualified)(Hutchison, Judge, by temporary assignment)(December 1, 2004). Granting a moulded writ of prohibition to permit Workers' Compensation Commission fraud unit lawyers who have been properly appointed to act as assistant prosecuting attorneys to proceed with the prosecution of case. Holding, in syllabus point 2: "The appointment by county prosecuting attorneys, pursuant to the provisions of West Virginia Code 7-7-8 (1987) (Repl. Vol. 2003), of attorneys employed by the Workers' Compensation Commission to serve as assistant prosecutors for prosecution of workers' compensation fraud and abuse cases does not of itself violate due process principles." Emphasizing the need for a written protocol to insure that the civil investigation process and prosecutorial process are separated.