State ex rel. Caton v. Sanders, 31661.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice
Citation215 W.Va. 755,601 S.E.2d 75
PartiesSTATE of West Virginia ex rel. Jason L. CATON, Petitioner, v. The Honorable David H. SANDERS, Judge of the Circuit Court of Berkeley County, West Virginia, Respondent.
Docket NumberNo. 31661.,31661.
Decision Date29 June 2004

Deborah A. Lawson, Chief Public Defender, William R. DeHaven, Public Defender Corporation, Martinsburg, West Virginia, Attorneys for the Petitioner.

Pamela Jean Games-Neely, Berkeley County Prosecuting Attorney, Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, West Virginia, Attorneys for the Respondent.

Justice STARCHER and Justice ALBRIGHT concur and reserve the right to file separate opinions.

DAVIS, Justice:

In this original proceeding in prohibition, a criminal defendant seeks to prohibit the circuit court from allowing evidence of prior bad acts pursuant to West Virginia Rule of Evidence 404(b). Finding a proper purpose for the admission of the challenged evidence, we deny the writ. In addition, however, we clarify the requirements for demonstrating the purpose which must be shown in order to achieve the admission of such evidence.


On October 16, 2002, Jason L. Caton (hereinafter "Mr. Caton") was named as the defendant in a four count indictment alleging that he sexually assaulted two separate females on two distinct occasions,1 and that on a third occasion he kidnaped another female for the purpose of sexually assaulting her.2 Mr. Caton filed a motion to sever the counts for trial, and the State argued in response that, if the counts were severed, it intended to introduce at each trial evidence from each of the offenses pursuant to Rule 404(b) of the West Virginia Rules of Evidence. By order entered July 10, 2003, the trial court granted Mr. Caton's motion for severance, and preliminarily ruled that it would allow the 404(b) evidence.3 Thereafter, the State filed notice of its election to first prosecute counts two and three of the indictment, and notice of its intent to use 404(b) evidence. On August 22, 2003, the circuit court conducted a pre-trial hearing as required by State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). During the course of the hearing, the circuit court heard the testimony of each of the three alleged victims. On November 4, 2003, the circuit court entered its order allowing the 404(b) evidence to be used at each of the trials arising from the indictment.4 The circuit court expressly stated that in making its decision to allow the 404(b) evidence, it "relie[d] on its remarks made during the August 22 hearing as well as the discussion in the July 10, 2003 Order granting severance of the counts of the indictment."

On December 1, 2003, the State gave notice of its intent to next prosecute count I of the indictment. Trial on count I was scheduled for January 21, 2004. Thereafter, Mr. Caton filed in this Court a petition for writ of prohibition seeking to prevent the State from admitting the 404(b) evidence at his scheduled trial on count I, and at his future trial for count IV. We issued a rule to show cause and now deny the petition.


It is well established that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). In the case sub judice, Mr. Caton essentially contends that the circuit court has exceeded its legitimate powers by deciding to admit the challenged evidence. In syllabus point 4 of State ex rel. Hoover v. Berger, we established the standard for considering whether to issue a writ of prohibition in the context of a trial court exceeding its jurisdiction as follows:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

199 W.Va. 12, 483 S.E.2d 12 (1996). Moreover, we have stated that

[i]n determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Syl. pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

In deciding whether to grant the writ of prohibition in this case, we are asked to review the circuit court's decision to allow evidence of other crimes pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Thus, our consideration of this case is further guided by the principles we have instituted for reviewing a trial court's decision as to 404(b) evidence.

The standard of review for a trial court's admission of evidence pursuant to Rule 404(b) [of the West Virginia Rules of Evidence] 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. See State v. Dillon, 191 W.Va. 648, 661, 447 S.E.2d 583, 596 (1994)

; TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992),


509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993); State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986).

State v. LaRock, 196 W.Va. 294, 310, 470 S.E.2d 613, 629 (1996) (footnotes omitted). See also State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528

("[W]e review the trial court's decision to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard.... Our function on ... appeal is limited to the inquiry as to whether the trial court acted in a way that was so arbitrary and irrational that it can be said to have abused its discretion. In reviewing the admission of Rule 404(b) evidence, we review it in the light most favorable to the party offering the evidence, in this case the prosecution, maximizing its probative value and minimizing its prejudicial effect." (internal citations omitted)). Guided by these various standards, we now consider the substantive issues raised in this original jurisdiction proceeding.


Mr. Caton claims both the State and the circuit court have failed to identify the precise purpose for which the 404(b) evidence is being offered, in direct violation of this Court's holding in syllabus point 1 of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516. Mr. Caton contends that the State and the circuit court are doing that which McGinnis precisely bars, i.e., reciting the "litany" of possible uses listed in Rule 404(b).5 Mr. Caton argues that, without a specific purpose identified, a jury is left clueless as to how to consider the 404(b) evidence and the risk of prejudice is thereby increased.

Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith." W. Va. R. Evid. 404(b). Nevertheless, Rule 404(b)

expressly permits the introduction of specific acts in the nature of crimes, wrongs, or acts to prove purposes other than character, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Thus, Rule 404(b) permits the introduction of specific crimes, wrongs, or acts for "other purposes" when character is not, at least overtly, a link in the logical chain of proof.

McGinnis, 193 W.Va. at 154, 455 S.E.2d at 523. Indeed, Rule 404(b) "is an `inclusive rule' in which all relevant evidence involving other crimes or acts is admitted at trial unless the sole purpose for the admission is to show criminal disposition." State v. Edward Charles L., 183 W.Va. 641, 647, 398 S.E.2d 123, 129 (1990). Accord State v. Nelson, 189 W.Va. 778, 784, 434 S.E.2d 697, 703 (1993)

; State v. Lola Mae C., 185 W.Va. 452, 459, n. 14, 408 S.E.2d 31, 38 n. 14 (1991). See also State v. Taylor, 215 W.Va.74, 83, 593 S.E.2d 645, 654 (2004) (Davis, J., dissenting).

Even in recognizing the inclusive nature of 404(b) evidence, though, we have warned that such evidence...

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