664 S.E.2d 99
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2. “'The traditional appellate standard for determining prejudice for
discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure
involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a
material fact, and (2) did it hamper the preparation and presentation of the defendant's case.'
Syllabus Point 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).”
Syllabus Point 1, State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003).
3. “An appellant or plaintiff in error will not be permitted to complain of
error in the admission of evidence which he offered or elicited, and this is true even of a
defendant in a criminal case.” Syllabus Point 2, State v. Bowman, 155 W.Va. 562, 184
S.E.2d 314 (1971).
Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court
of Mercer County entered on July 25, 2006. In that order, the appellant and defendant below,
Harold Lee Cyrus, was sentenced to two terms of ten to twenty years in the penitentiary upon
his conviction of two counts of sexual abuse by a custodian. The appellant was also
sentenced to two terms of five to fifteen years in the penitentiary upon his conviction of two
counts of incest. The appellant was ordered to serve the four sentences consecutively. After
due consideration, however, the circuit court further ordered that one of the appellant's
sentences of ten to twenty years for sexual abuse by a custodian be suspended, and that the
appellant be placed on probation for a period of ten years upon his release from the
penitentiary after he has served the other three consecutive sentences.
In this appeal, the appellant first contends that the circuit court erred by
allowing the State to present expert testimony from three witnesses without prior disclosure
of the nature of their testimony pursuant to Rule 16 of the West Virginia Rules of Criminal
Procedure. Secondly, the appellant argues that the circuit court erred by allowing the State
to introduce testimony in violation of Rule 404(b) of the West Virginia Rules of Evidence. (See footnote 1)
Having considered the petition for appeal, the entire record, the briefs and argument of
counsel, and the pertinent authorities, we affirm the final order.
At trial, eight of the counts were dismissed by the circuit court, and the jury
found the appellant not guilty of eleven counts. The appellant was convicted of two counts
of sexual abuse by a custodian and two counts of incest, all of which pertained to his
stepdaughter, K.S. As noted above, the appellant was sentenced to a total of thirty to seventy
years in the penitentiary but the court suspended one sentence of ten to twenty years and
ordered that the appellant be placed on probation for ten years upon his release from the
penitentiary. The final order was entered on July 25, 2006, and this appeal followed.
“'The West Virginia Rules of Evidence . . . allocate
significant discretion to the trial court in making evidentiary . .
. rulings. Thus, rulings on the admissibility of evidence . . . are
committed to the discretion of the trial court. Absent a few
exceptions, this Court will review evidentiary . . . rulings of the
circuit court under an abuse of discretion standard.' Syllabus
Point 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455
S.E.2d 788 (1995).” Syllabus Point 9, Smith v. First Community
Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002).
Syllabus Point 2, State v. Harris, 216 W.Va. 237, 605 S.E.2d 809 (2004). This Court has
also held that,
“The traditional appellate standard for determining
prejudice for discovery violations under Rule 16 of the West
Virginia Rules of Criminal Procedure involves a two-pronged
analysis: (1) did the non-disclosure surprise the defendant on a
material fact, and (2) did it hamper the preparation and
presentation of the defendant's case.” Syllabus Point 2, State ex
rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).
Syllabus Point 1, State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003). With these
standards in mind, we now consider the alleged errors.
Upon request of the defendant, the state shall disclose to the defendant a written summary of testimony the state intends to use under Rules 702, 703, or 705 of the Rules of Evidence during its case in chief at trial. The summary must describe the witnesses' opinions, the bases and reasons therefor, and the witnesses' qualifications.
According to the appellant, the State advised during a pre-trial hearing that it
would not present any expert testimony at trial. The appellant claims he was therefore
completely surprised when the State called Krystal Leedy, Shannon Beck, and Shirley Aycoth
to offer expert testimony. The appellant contends that the State's failure to disclose that it
intended to present this expert testimony at trial clearly hampered the presentation of his case
as he obviously did not have time to prepare a thorough cross-examination. The appellant
argues that the State's failure to disclose its expert witnesses and the nature of their testimony
prior to trial pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure warrants
reversal of his convictions and a new trial.
The State maintains, however, that disclosure was not necessary pursuant to
Rule 16 because these witnesses were called to present factual testimony only. The State
contends that Ms. Beck, Ms. Leedy, and Ms. Aycoth were not called as experts and the State
did not ask them to give expert opinions. Rather, the State asserts that the appellant turned
these witnesses into experts by his own questions during cross-examination.
Upon review of the record, we find that the testimony of these witnesses on
direct examination was limited to their factual knowledge of the case. In that regard, Ms.
Beck was asked questions about her treatment of K.S. Ms. Beck's testimony did not deviate
from her treatment records, a copy of which was provided to the appellant before trial. Ms.
Leedy only testified about her participation as K.S.'s case manager in the related abuse and
neglect proceedings. Ms. Aycoth's testimony was limited to the fact that she did not find any
evidence that K.S. had been sexually assaulted when she examined her in 2003.
The record shows that the expert testimony provided by these witnesses was
elicited during cross-examination. For instance, counsel for the appellant asked Ms. Beck
several questions about recantations and whether recantations could ever be believed. This
Court has long held that parties cannot complain on appeal about the introduction of evidence
adduced by them. In Syllabus Point 2 of State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314
(1971), this Court explained that, “An appellant or plaintiff in error will not be permitted to
complain of error in the admission of evidence which he offered or elicited, and this is true
even of a defendant in a criminal case.” Thus, we find no merit to this assignment of error.
The appellant next argues that the circuit court erred by allowing the State to
introduce evidence in violation of Rule 404(b) of the West Virginia Rules of Evidence. (See footnote 4) In
that regard, the appellant contends that the circuit court erred by allowing the State to present
testimony that he began sexually abusing and assaulting the victims while they were living
in McDowell County; that he physically punished the victims when they disclosed the abuse
in McDowell County; and that the victims were removed from his custody as a result of
abuse and neglect proceedings in McDowell County. The appellant also maintains this
evidence was more prejudicial than probative and thus, should have also been excluded
pursuant to Rule 403 of the West Virginia Rules of Evidence. (See footnote 5) The appellant reasons that
the jury would have had to conclude from this evidence that he must be guilty of something.
He contends that the State never made any disclosure regarding this evidence, and there was
no pre-trial evidentiary hearing to alert him that this evidence would be admitted.
To the contrary, the State maintains that the evidence of sexual abuse which
began in McDowell County and continued after the family moved to Mercer County, as well
as evidence that physical punishment was inflicted upon V.C. after she made a disclosure,
was inextricably intertwined with the charged crimes and was therefore, admissible. The
State contends that it disclosed its intention to use this evidence prior to trial, and the circuit
court did not err in ruling that it was admissible intrinsic evidence. The State also notes that
both parties relied upon evidence stemming from the abuse and neglect proceedings.
In State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), this Court
explained that evidence which is “intrinsic” to the indicted charge is not governed by Rule
404(b). We stated,
In determining whether the admissibility of evidence of “other bad acts” is governed by Rule 404(b), we first must determine if the evidence is “intrinsic” or “extrinsic.” See United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990): “'Other act' evidence is 'intrinsic' when the evidence of the other act and the evidence of the crime charged are 'inextricably intertwined' or both acts are part of a 'single criminal episode' or the other acts were 'necessary preliminaries' to the crime charged.” (Citations omitted). If the proffer fits into the “intrinsic” category, evidence of other crimes should not be suppressed when those facts come in as res gestae--as part and parcel of the proof charged in the indictment. See United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980) (stating evidence is admissible when it provides the context of the crime, “is necessary to a 'full presentation' of the case, or is . . . appropriate in order 'to complete the story of the crime on trial by proving its immediate context or the “res gestae”'”). (Citations omitted).
196 W.Va. at 312 n.29, 470 S.E.2d at 631 n.29. This Court further held in LaRock that
“historical evidence of uncharged prior acts which is inextricably intertwined with the
charged crime is admissible over a Rule 403 objection.” 196 W.Va. at 313, 470 S.E.2d at
632. We explained that, “Rule 403 was not intended to prohibit a prosecutor from presenting
a full picture of a crime especially where the prior acts have relevance independent of simply
proving the factors listed in Rule 404(b).” Id.
We applied our holdings from LaRock in State v. Slaton, 212 W.Va. 113, 569
S.E.2d 189 (2002). In that case, the appellant was charged with one count of first degree
sexual assault; yet, the State presented evidence indicating that the appellant had sexually
assaulted the victim on more than one occasion. The appellant argued that the evidence
should have been excluded pursuant to Rule 404(b). This Court rejected that argument
finding that “the multiple incidents of sexual assault were 'inextricably intertwined'” and
thus, the evidence was admissible as it did not constitute a separate act. 212 W.Va. at 119,
569 S.E.2d at 195.
In State ex rel. Wensell v. Trent, 218 W.Va. 529, 625 S.E.2d 291 (2005), the
appellant sought habeas corpus relief after he was convicted of multiple counts of first degree
sexual abuse, first degree sexual assault, and sexual abuse by a custodian. The appellant
asserted that the circuit court should have excluded evidence that he punished his victims by
spanking them with a paddle board and that he had previously assaulted his wife during a
domestic dispute. We concluded that the evidence was admissible explaining that “[i]t
portrayed to the jurors the complete story of the inextricably linked events with regard to the
interaction between the appellant and his stepdaughters and amounted to intrinsic evidence.”
218 W.Va. at 536, 625 S.E.2d at 298.
In this case, the evidence that the appellant sexually assaulted and abused the
victims in McDowell County was inextricably intertwined with the alleged offenses in
Mercer County. During the time span of the indictment, the appellant and his family,
including the victims, moved back and forth between Mercer County and McDowell County.
The sexual abuse was a continuing act that occurred in both counties and was impossible for
the victims to segregate. Thus, we find no error with the admission of this evidence.
With respect to the abuse and neglect proceedings, the record shows that the
appellant never objected at trial when V.C. and K.S. revealed that they had been removed
from the appellant's home. In fact, K.S.'s recantation during the abuse and neglect
adjudicatory hearing was central to the appellant's defense. He claimed that the offenses
never occurred and that the victims were lying. During cross-examination of K.S., counsel
for the appellant confronted her with the testimony she gave during the abuse and neglect
proceedings wherein she denied that the appellant sexually assaulted her. Given the
appellant's own reliance upon evidence relating to the abuse and neglect proceedings, he
cannot now complain of its admission. (See footnote 6) See Syllabus Point 2, Bowman, supra. Thus, we find
no merit to this assignment of error.