647 S.E.2d 539
2. “When offering evidence under Rule 404(b) of the West Virginia Rules
of Evidence, the prosecution is required to identify the specific purpose for which the
evidence is being offered and the jury must be instructed to limit its consideration of the
evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely
to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise
purpose for which the evidence is offered must clearly be shown from the record and that
purpose alone must be told to the jury in the trial court's instruction.” Syllabus point 1, State
v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
3. Rule 404(b) of the West Virginia Rules of Evidence requires the
prosecution in a criminal case to disclose evidence of other crimes, wrongs or acts prior to
trial if such disclosure has been requested by the accused; however, upon reasonable notice
such evidence may be disclosed for the first time during trial upon a showing of good cause
for failure to provide the requested pretrial notice.
4. The fact that a criminal charge against a defendant is dismissed or that
he/she is acquitted of the same does not prohibit use of the incident under Rule 404(b) of the
West Virginia Rules of Evidence.
5. “Several basic rules exist as to cross-examination of a witness. The first
is that the scope of cross-examination is coextensive with, and limited by, the material
evidence given on direct examination. The second is that a witness may also be
cross-examined about matters affecting his credibility. The term 'credibility' includes the
interest and bias of the witness', inconsistent statements made by the witness and to a certain
extent the witness' character. The third rule is that the trial judge has discretion as to the
extent of cross-examination.” Syllabus point 4, State v. Richey, 171 W. Va. 342, 298 S.E.2d
879 (1982).
6. “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 trial court's discretion will not be overturned absent a showing of clear
abuse.” Syllabus point 10, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
Davis, Chief Justice:
Jeremiah David Mongold (hereinafter referred to as “Mr. Mongold”) appeals
an order of the Circuit Court of Hampshire County convicting him of the crime of death of
a child by a parent, guardian or custodian by child abuse. The circuit court sentenced Mr.
Mongold to a definite term of imprisonment of forty years. Here, Mr. Mongold has made the
following assignments of error: (1) the admission of evidence of a prior child abuse incident,
(2) the admission of evidence concerning the reason for his loss of employment, and (3) the
admission of autopsy photos of the victim. After a thorough review of the record, briefs and
the applicable laws, we affirm the conviction and sentence of Mr. Mongold.
The standard of review for a trial court's admission of
evidence pursuant to Rule 404(b) involves a three-step analysis.
First, we review for clear error the trial court's factual
determination that there is sufficient evidence to show the other
acts occurred. Second, we review de novo whether the trial
court correctly found the evidence was admissible for a
legitimate purpose. Third, we review for an abuse of discretion
the trial court's conclusion that the “other acts” evidence is more
probative than prejudicial under Rule 403.
196 W. Va. at 310-11, 470 S.E.2d at 629-30 (footnote omitted).
In Syllabus point two of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516
(1994), this Court outlined the procedure that trial courts must follow in determining whether
to admit Rule 404(b) evidence:
Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.
Finally, in Syllabus point one of McGinnis we addressed the usage of Rule 404(b) evidence
as follows:
When offering evidence under Rule 404(b) of the West
Virginia Rules of Evidence, the prosecution is required to
identify the specific purpose for which the evidence is being
offered and the jury must be instructed to limit its consideration
of the evidence to only that purpose. It is not sufficient for the
prosecution or the trial court merely to cite or mention the litany
of possible uses listed in Rule 404(b). The specific and precise
purpose for which the evidence is offered must clearly be shown
from the record and that purpose alone must be told to the jury
in the trial court's instruction.
193 W. Va. 147, 455 S.E.2d 516. In our review of this case we are satisfied that the trial
court complied with the requirements of McGinnis.
During Mr. Mongold's case-in-chief, he presented witnesses who testified as
to his overall good relationship with children and that he was not a violent person.
Additionally, during direct examination of Mr. Mongold and through the testimony of other
witnesses, evidence was presented which suggested that Hannah's injuries could have been
caused accidentally while, among other things, she was playing the game of “airplane.” In
an effort to rebut Mr. Mongold's evidence regarding his theories of how Hannah's injuries
could have occurred accidentally, the State sought to introduce evidence of an incident
involving a five-year-old child that occurred on May 8, 2002. On the date in question, Mr.
Mongold “held the child up against the wall by the throat, causing the child to bleed and
become unconscious for four or five seconds.”
The trial court held an in camera hearing to decide whether the State would be
allowed to question Mr. Mongold about the prior child abuse incident. During the in camera
proceeding, the trial court took testimony from the child's mother. The mother testified that
she and Mr. Mongold had gotten into an argument and that he shoved her through a closet
door. (See footnote 5) The child attempted to assist his mother. Mr. Mongold then grabbed the child by the
throat and pinned him against a wall. The mother intervened and wrestled with Mr.
Mongold. During the altercation, the child was pinned between Mr. Mongold's legs. As a
result of pressure being applied to the child's head by Mr. Mongold's legs, “blood vessels
in one of [the child's] eyes were broken, he had a small amount of blood inside his ear and
he . . . urinated [on] himself.” (See footnote 6) The trial court also considered evidence showing that Mr.
Mongold had been criminally charged with respect to that incident and that he eventually
pled guilty to charges of domestic battery against the mother and the child. (See footnote 7) After
consideration of the arguments from both parties, the trial court ruled that the State had
shown by a preponderance of the evidence that the prior incident did occur. The trial court
concluded that the evidence was relevant “to show that this was not an accident and that it
was intentional,” as argued by the State. See United States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003) (“[I]t has been established that the government offered the evidence to prove
intent and refute [the defendant's] claim of mistake or accident. These purposes are
permissible under [Rule] 404(b).”). It was also found by the trial court “that the probative
value [of the evidence] would, in fact, outweigh the prejudicial effect[.]”
After the in camera hearing, the State was permitted to cross-examine Mr.
Mongold about the prior child abuse incident. (See footnote 8) The trial court gave a limiting instruction on
how the jury should receive the evidence. Additionally, during the charge to the jury, the
trial court again instructed the jury that evidence of Mr. Mongold's past “is not admitted as
proof of [his] guilt on the present charge . . . . This evidence is admitted . . . only for the
purpose of determining whether the . . . State . . . has proven and established intent in absence
of accident.”
Very clearly, the record demonstrates that the trial court complied with McGinnis by finding that the prior child abuse incident was admissible to show intent and
a lack of accident. See State v. Scott, 206 W. Va. 158, 166, 522 S.E.2d 626, 634 (1999)
(allowing Rule 404(b) evidence to show lack of accident); State v. Bonham, 184 W. Va. 555,
559, 401 S.E.2d 901, 905 (1990) (allowing Rule 404(b) evidence to show intent). Even so,
Mr. Mongold presents two arguments as to why evidence of the prior child abuse incident
should not have been introduced: (1) the lack of pretrial notice and (2) his acquittal of the
prior felony child abuse charge. We now address both arguments.
(1) Lack of pretrial notice. Mr. Mongold contends that the prior child abuse
incident should not have been introduced because the State failed to provide pretrial notice
of its intent to use such evidence. Mr. Mongold states that, during a pretrial hearing, “the
court remarked '. . . so suffice to say that there are no 404(b) issues[.]' The prosecuting
attorney replied: 'None known to me, your honor.'” Here, Mr. Mongold contends that had
he known the State intended to use Rule 404(b) evidence, he may have conducted his trial
differently. In contrast, the State argues that it did not know that the prior child abuse
incident would be relevant until Mr. Mongold presented extensive evidence showing that
Hannah's injuries were accidental.
Rule 404(b) provides that “ upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any such evidence it
intends to introduce at trial.” Consequently, and under this provision, we hold, Rule 404(b)
of the West Virginia Rules of Evidence requires the prosecution in a criminal case to disclose
evidence of other crimes, wrongs or acts prior to trial if such disclosure has been requested
by the accused; however, upon reasonable notice such evidence may be disclosed for the first
time during trial upon a showing of good cause for failure to provide the requested pretrial
notice.
At the outset we note that Rule 404(b) “place[s] an initial duty on the defense
to request the prosecution to furnish 'other crimes' evidence.” United States v. Barnes, 49
F.3d 1144, 1148 (6th Cir. 1995). When no such pretrial request is made, the State is “not
obligated to provide pretrial notice.” United States v. Aguilar, 59 Fed. Appx. 326, 328
(10th Cir. 2003). See also State v. Zacks, 204 W. Va. 504, 509, 513 S.E.2d 911, 916 (1998)
(prosecutor allowed to introduce Rule 404(b) evidence without pretrial notice because
defendant failed to make request). An examination of Mr. Mongold's discovery motion
reveals that he made the following two relevant requests:
(1) A copy of [his] prior criminal record, if any, as is
within the possession, custody or control of the State, or the
existence of which is known, or by the exercise of due diligence
may become known, to the attorney for the State.
(2) Any evidence of uncharged crimes, wrongs or acts
allegedly committed by [him] which the State intends to
introduce.
To the extent that the above two requests constitute Rule 404(b) requests, Mr. Mongold has
not argued that the State failed to provide the requested information. Instead, Mr. Mongold
contends that the pretrial notice requirement was violated because the State indicated prior
to trial that there would be no Rule 404(b) issues at trial. To support this argument, Mr.
Mongold cites to our decision in State v. Grimm, 165 W. Va. 547, 270 S.E.2d 173 (1980).
Mr. Mongold argues that, under Grimm, “non-disclosure by the prosecution is fatal to its case
where such non-disclosure is prejudicial.” Put simply, Mr. Mongold misinterprets Grimm.
In Grimm this Court addressed the issue of the State's failure to turn over a
document that was requested during discovery. The State did not produce the document, but
the State nevertheless introduced it during the trial. We found the non-disclosure to be
erroneous. We held in Syllabus point two of Grimm:
When a trial court grants a pre-trial discovery motion
requiring the prosecution to disclose evidence in its possession,
non-disclosure by the prosecution is fatal to its case where such
non-disclosure is prejudicial. The non-disclosure is prejudicial
where the defense is surprised on a material issue and where the
failure to make the disclosure hampers the preparation and
presentation of the defendant's case.
165 W. Va. 547, 270 S.E.2d 173.
The pretrial notice of other crimes evidence required by Rule 404(b), at issue
herein, is distinguishable from the prosecution's failure in Grimm to produce a requested
document. In the instant proceeding, there is no allegation that the State failed to turn over
any document to Mr. Mongold. Further, Grimm does not address the issue of a statement by
the State that it did not know of any Rule 404(b) issues that would be litigated. Therefore, Grimm does not support Mr. Mongold's position. (See footnote 9)
The trial court ruled that the State was not precluded from using evidence of
the prior child abuse merely because the State initially believed that no Rule 404(b) evidence
would be used. The trial court correctly found that, under Rule 404(b), such evidence was
admissible during the trial if good cause was shown. See United States v. Scholl, 166 F.3d
964, 976 (9th Cir. 1999) (“Although Rule 404(b) requires pretrial disclosure of such evidence,
that requirement may be excused 'for good cause shown.'”). The trial court determined that
good cause was shown. It was only after Mr. Mongold presented extensive evidence
suggesting that Hannah's death could have occurred accidentally while playing the game of
“airplane” “that this even became an issue.”
To the extent that the State's initial belief that no Rule 404(b) issues would be
litigated constituted noncompliance with the rule's pretrial notice requirement, we do not
believe the trial court abused its discretion in finding that the State provided good cause for
failing to provide pretrial notice. See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1241
(10th Cir. 1996) (“[W]here Rule 404(b) evidence is offered during trial, as it was in the
instant case, the district court may excuse pretrial notice and admit such evidence on good
cause shown.”); United States v. Wei, 862 F. Supp. 1129, 1134 (S.D.N.Y. 1994) (“Evidence
sought to be admitted under that rule for which . . . pre-trial notice was not given shall be
admitted only if good cause is shown to excuse the failure to provide such notice.”). The
record is clear in showing that Mr. Mongold was made aware of the prior child abuse
incident through documents supplied during discovery and during the pretrial hearing. The
mere fact that the State initially believed that no Rule 404(b) issues existed should not be the
basis for excluding the evidence. See United States v. Morrison, No. 96-4956, 1998 WL
17049 (4th Cir. Jan. 20, 1998) (permitting government to introduce Rule 404(b) evidence that
it initially stated would not be used at trial); United States v. Holmes, 111 F. 3d 463, 468 (6th Cir. 1997) (permitting Rule 404(b) evidence even though “the defense asked the government
whether it planned to introduce any evidence under Rule 404(b), and the government
responded that it had no plans to do so”).
The fact that Rule 404(b) permits notice to occur for the first time at trial, upon
a showing of good cause, suggests that the rule contemplates situations arising where the
State legitimately is unaware of the need for such evidence until after the trial begins.
“[T]here is no requirement that the State must anticipate a need to disclose such evidence.” Dixon v. State, 712 N.E.2d 1086, 1092 (Ind. Ct. App. 1999). See also United States v. Makki,
No. 06-20324, 2007 WL 781821 (E.D. Mich. Mar. 13, 2007) (after denying defendant's
request for notice of Rule 404(b) evidence because government stated it would not introduce
such evidence, trial court warned, “the Government is hereby cautioned that it will need
'good cause' to be able to introduce 404(b) evidence at trial if Defendant is not provided
reasonable notice of the general nature of any such evidence at least two weeks in advance
of trial”). This is particularly true under the facts of this case. Mr. Mongold put on
apparently unanticipated extensive evidence regarding his good relationship with children,
and evidence, including expert testimony, suggesting that Hannah's death could have been
caused accidentally while playing the game of “airplane.” Under these unique circumstances,
the trial court properly found good cause for excusing the State's failure to provide pretrial
notice and in making an initial statement that no Rule 404(b) evidence would be introduced. (See footnote 10) See United States v. Smith, 383 F.3d 700, 707 (8th Cir. 2004) (good cause shown for failing
to provide notice of Rule 404(b) evidence until day of trial); United States v. Scholl, 166 F.3d
964, 976 (9th Cir. 1999) (same); United States v. Lopez-Gutierrez, 83 F.3d 1235, 1241 (10th Cir. 1996) (same); United States v. Archibald, 212 Fed. Appx. 788, 795 (11th Cir. 2006)
(same); Myrick v. State, 787 So. 2d 713, 716 (Ala. Crim. App. 2000) (same).
(2) Acquittal of the prior felony child abuse charge. Next, Mr. Mongold
argues that evidence of the prior child abuse incident should not have been introduced
because he pled guilty to domestic battery and not the original felony child abuse charge.
Mr. Mongold equates the dismissal of the felony child abuse charge to an acquittal. To
support his argument, Mr. Mongold cites Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084,
109 L. Ed. 2d 548 (1990). Grady holds that
[t]he Double Jeopardy Clause bars a subsequent prosecution if,
to establish an essential element of an offense charged in that
prosecution, the government will prove conduct that constitutes
an offense for which the defendant has already been prosecuted.
495 U.S. at 510, 110 S. Ct. at 2087, 109 L. Ed. 2d at 557. Grady does not support Mr.
Mongold's position for two reasons. First, and foremost, Grady was expressly overruled by
the United States Supreme Court in United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849,
125 L. Ed. 2d 556 (1993). Dixon held:
We have concluded . . . that Grady must be overruled.
Unlike Blockburger analysis, whose definition of what prevents
two crimes from being the “same offence,” U.S. Const., Amdt.
5, has deep historical roots and has been accepted in numerous
precedents of this Court, Grady lacks constitutional roots. The
“same-conduct” rule it announced is wholly inconsistent with
earlier Supreme Court precedent and with the clear common-law
understanding of double jeopardy.
Dixon, 509 U.S. at 704, 113 S. Ct. at 2860, 125 L. Ed. 2d at 573. (See footnote 11)
The second reason that Grady does not support Mr. Mongold's position is that Grady had nothing to do with the introduction of Rule 404(b) evidence. In Grady the
defendant had pled guilty in a New York state court to the misdemeanor offenses of driving
while intoxicated and failing to keep to the right of the median. After the guilty plea was
accepted, the defendant was charged by indictment with, inter alia, reckless manslaughter,
criminally negligent homicide, and third-degree reckless assault, all of which were based on
the same incident which had given rise to the misdemeanor charges. The defendant moved
to dismiss the indictment on double jeopardy grounds. The New York trial court denied the
motion. The defendant thereafter sought a writ of prohibition from a mid-level appellate
court. That court denied the writ. The defendant appealed to New York's highest court. The
New York court found a double jeopardy violation and reversed. The prosecutor thereafter
appealed to the United States Supreme Court. The United State Supreme Court affirmed the
decision of New York's highest court.
In the instant proceeding, the State prosecuted Mr. Mongold for the death of
Hannah in 2004, not for the injury to a different child in 2002. Therefore, the issue of Grady's double jeopardy principle simply has no application to Mr. Mongold's prosecution
nor to the use of a prior child abuse incident for purposes of Rule 404(b).
Assuming, as argued by Mr. Mongold, that the dismissal of the felony child
abuse charge, in exchange for a plea to domestic battery, constituted an acquittal of the
felony charge, evidence of the underlying child abuse incident may be used for purposes of
Rule 404(b). That issue was addressed by the United States Supreme Court in Dowling v.
United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). In Dowling, the
defendant was prosecuted by the federal government for robbing a Virgin Island bank.
During the trial, the government introduced evidence, under Rule 404(b) of the Federal Rules
of Evidence, (See footnote 12) of the defendant's involvement in a burglary and attempted robbery in a home.
The trial court permitted the evidence even though the defendant had been tried and acquitted
of all charges stemming from the burglary. A jury convicted the defendant of the bank
robbery charge, and the conviction was upheld by a federal appellate court. The United
States Supreme Court granted certiorari to decide whether double jeopardy principles
prohibited use of Rule 404(b) to introduce evidence involving the acquitted burglary charge.
The United States Supreme Court ruled that double jeopardy principles did not bar use of the
evidence:
For present purposes, we assume for the sake of
argument that Dowling's acquittal established that there was a
reasonable doubt as to whether Dowling was the masked man
who entered [the victim's] home . . . two weeks after the First
Pennsylvania Bank robbery. But to introduce evidence on this
point at the bank robbery trial, the Government did not have to
demonstrate that Dowling was the man who entered the home
beyond a reasonable doubt: the Government sought to introduce
[the evidence] under Rule 404(b), and, as mentioned earlier, . . .
[i]n the Rule 404(b) context, similar act evidence is relevant
only if the jury can reasonably conclude that the act occurred
and that the defendant was the actor. Because a jury might
reasonably conclude that Dowling was the masked man who
entered [the victim's] home, even if it did not believe beyond a
reasonable doubt that Dowling committed the crimes charged at
the first trial, the collateral-estoppel component of the Double
Jeopardy Clause is inapposite.
Our decision is consistent with other cases where we
have held that an acquittal in a criminal case does not preclude
the Government from relitigating an issue when it is presented
in a subsequent action governed by a lower standard of proof.
Dowling, 493 U.S. at 348-49, 110 S.Ct. at 672, 107 L. Ed. 2d at 717-18 (internal quotation
marks and citation omitted). (See footnote 13)
Consistent with Dowling, we now hold that the fact that a criminal charge
against a defendant is dismissed or that he/she is acquitted of the same does not prohibit use
of the incident under Rule 404(b) of the West Virginia Rules of Evidence. Consequently,
the fact that the felony child abuse charge against Mr. Mongold was dismissed did not
prohibit use of the incident pursuant to Rule 404(b).
[s]everal basic rules exist as to cross-examination of a
witness. The first is that the scope of cross-examination is
coextensive with, and limited by, the material evidence given on
direct examination. The second is that a witness may also be
cross-examined about matters affecting his credibility. The term
“credibility” includes the interest and bias of the witness,
inconsistent statements made by the witness and to a certain
extent the witness' character. The third rule is that the trial judge
has discretion as to the extent of cross-examination.
Syl. pt. 4, State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982). See also W. Va. R. Evid.
611(b)(2) (“Non-Party Witnesses. Cross-examination should be limited to the subject matter
of the direct examination and matters affecting the credibility of the non-party witness. The
court may, in the exercise of discretion, permit inquiry into additional matters as if on direct
examination.”).
(1) Cross-examination of Mr. Mongold's father. Mr. Mongold's
employment status was first raised by Mr. Mongold during the direct examination of his
father:
Q. Okay. All right. And you were at the home on the
weekends, and I assume you work during the week too, right?
A. Yes. Jeremiah [Mr. Mongold] was employed with me.
Q. Where do you work?
A. Lantz Construction Company in Winchester,
project superintendent. We do commercial buildings.
The State followed up on the issue of Mr. Mongold's employment during its cross-
examination of his father: (See footnote 14)
Q. Does he still work with you at Lantz?
A. No, no, he does not due to the fact of what he's been
going through, missing time. Our work got slow in the winter
and _ and he had to miss so much time, that they let him off.
Q. Did he get laid off or did he get terminated?
A.Well, I'm not sure which. I mean, I don't know. You
would have to ask Jeremiah about that.
Mr. Mongold continued the issue of his employment during redirect examination of his
father:
Q. . . . Jeremiah wasn't terminated, let go for
misconduct, was he?
A. Not on the job site. They had a Christmas party and
something happened there. I was not there.
Q. You don't know what it was?
A. No.
Q. And you say he missed a lot of work?
A. Yes.
Q.What was that a result of?
A. Because of the hearing, hearings and
everything mostly due to the incident that happened to Hannah.
The State followed up on the issue of the Christmas party incident during its recross-
examination of Mr. Mongold's father:
Q. So he was not terminated for any misconduct at work?
A. Not that I'm aware of.
Q. He was terminated for some misconduct at the
company Christmas party?
A. I didn't get into it a whole lot. I understand that there
was a Christmas party; and there was some other people that
was involved and there was some drinking going on, and that's
all I know about it.
So, to the extent that Mr. Mongold alleges that the trial court committed error in allowing the State to question his father about his employment status, we find no merit to the contention. The record clearly demonstrates that Mr. Mongold was the first to raise the issue of his employment status during the direct examination of his father. “[T]his Court has recognized that the scope of cross-examination is coextensive with the evidence given on direct examination; that is, a witness may be cross-examined on matters which are raised on direct examination.” State v. Justice, 191 W. Va. 261, 269, 445 S.E.2d 202, 210 (1994). See also Syl. pt. 2, in part, State v. Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971) (“An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited[.]”).
(2) Cross-examination of Mr. Mongold's wife. The issue of Mr. Mongold's
employment status was again raised by him during the direct examination of his wife: (See footnote 15)
Q. Okay. All right. Jeremiah, when you all moved in
together and even before that, he was employed?
A. Yes.
Q. Where did he work?
A. Lantz Construction out of Winchester.
Q. And generally, what days of the week and what hours
of the week would he work?
A. Monday through Friday, I don't know, normal hours,
six something to three, sometimes a little later than three.
The State followed up on the issue of Mr. Mongold's employment during its cross-
examination of his wife:
Q. Okay. Do you know anything about Mr. Mongold
losing his job there at Lantz Construction?
A. Yes, sir, I do.
Q. Do you know why that was?
A. Yes, sir, I do.
Q. And why was that?
A. Jeremiah and I had gotten into an argument at a
company dinner and he was being nasty to me, and his friends,
they observed him being nasty. And they all got into a
confrontation and got into a fight which resulted in the end,
Jeremiah punching a hole into the wall. And I guess that is the
initial reason why they actually fired him rather than pressing
charges.
Mr. Mongold contends that it was error for the trial court to permit the State to elicit
testimony from his wife concerning the reason he lost his job. We disagree.
It has been recognized that “'[w]hen the accused calls [his] spouse to testify,
the prosecution can cross-examine as to those matters covered, or matters directly related to
those matters covered, on direct examination.'” State v. Bohon, 211 W. Va. 277, 282 n.3,
565 S.E.2d 399, 404 n.3 (2002) (quoting 1 Franklin D. Cleckley, Handbook on Evidence for
West Virginia Lawyers § 5-4(D)(2)(b), at 5-84 (4th ed. 2000)). The record clearly shows that
Mr. Mongold asked his wife on direct examination about his employment, including the days
and hours that he worked. The issue of his termination from employment was directly related
to this line of questioning. Consequently we find no error in the State's cross-examination
of Mr. Mongold's wife. (See footnote 16)
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
trial court's discretion will not be overturned absent a showing
of clear abuse.
Id.
In the instant case, the trial court followed the requirements of Derr in
admitting the five photographs. The trial court determined that the photographs were
relevant in showing the location of Hannah's injuries and in assisting the State's medical
expert in describing those injuries to the jury. After finding the photographs to be relevant,
the trial court weighed their probative value against their prejudicial nature. In so doing, the
trial court found that the photographs were in black and white and did not show blood. The
trial court also found that the autopsy photographs would be cropped so as to minimize
showing the full skull. With these considerations in view the trial court held that
[t]he prosecutor will have witnesses testify about the condition
of the child and her injuries. Since the testimony will directly
relate to the photographs and may be of a technical nature and
because the charge is child abuse by custodian resulting in death
of a child which requires proof of an intentional and malicious
infliction of physical pain and impairment of physical condition
other than by accidental means causing death, the court finds
that the probative value outweighs the prejudicial effect on [the]
photographs[.]
Although we find that the autopsy photographs may be characterized as
gruesome, we do not believe that those photographs were unduly prejudicial. As we noted
in Derr, “[g]ruesome photographs simply do not have the prejudicial impact on jurors as
once believed by most courts. '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
inflammatory pictures exists more in the imagination of judges and lawyers than in reality.'” Derr, 192 W. Va. at 177 n.12, 451 S.E.2d at 743 n.12 (quoting People v. Long, 38
Cal. App. 3d 680, 689, 113 Cal. Rptr. 530, 537 (1974)). We have reviewed all of the
photographs, paying particular attention to the autopsy photographs, and do not find that their
prejudicial impact outweighed their probative value. Consequently, we do not find that the
trial court abused its discretion by admitting the photographs.