State v. Dennis, No. 31578.

CourtSupreme Court of West Virginia
Writing for the CourtALBRIGHT, Justice
Citation607 S.E.2d 437,216 W.Va. 331
PartiesSTATE of West Virginia, Plaintiff Below, Appellee v. Michael O'Dell DENNIS, Defendant Below, Appellant.
Decision Date01 December 2004
Docket NumberNo. 31578.

607 S.E.2d 437
216 W.Va.
331

STATE of West Virginia, Plaintiff Below, Appellee
v.
Michael O'Dell DENNIS, Defendant Below, Appellant

No. 31578.

Supreme Court of Appeals of West Virginia.

Submitted March 31, 2004.

Decided December 1, 2004.


607 S.E.2d 441
Scott R. Smith, Prosecuting Attorney, William J. Ihlenfeld, II, Assistant Prosecuting Attorney, Wheeling, West Virginia, Attorneys for the Appellee

Mark A. Blevins, The Law Offices of Mark A. Blevins, Wheeling, West Virginia, Attorneys for the Appellant.

ALBRIGHT, Justice:

This case involves an appeal by Michael O'Dell Dennis (hereinafter referred to as "Appellant") of his conviction by jury trial in the Circuit Court of Ohio County on August 22, 2002, of the offenses of kidnapping, second degree robbery, two counts of second degree sexual assault, violating a domestic violence protective order and domestic battery.1 In challenging his convictions, Appellant claims the trial court committed error by: failing to dismiss the sexual assault and robbery charges because any relevant act occurred in Ohio rather than West Virginia; refusing to declare a mistrial when it became known during trial that the mother of one of the jurors formerly worked for the prosecutor and was working for the circuit clerk's office at the time of trial; not permitting Appellant to offer expert testimony to rebut the state's evidence about characteristics of battered woman's syndrome (hereinafter referred to as "BWS"); allowing the introduction of impermissible hearsay evidence through various witnesses who repeated the victim's statements; allowing admission of testimony of prior crimes, wrongs or acts of Appellant; permitting a nurse to testify as an expert regarding the victim's injuries; failing to recognize that law enforcement conducted an inadequate investigation; and not taking corrective action to instruct the jury about improper remarks of the prosecutor.

For the reasons set out below, the judgment order is affirmed in part and reversed in part, with the case remanded to the lower court for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Appellant is in his early twenties and is from New Martinsville, located in Wetzel County West Virginia. The accuser or victim in this case, Raina Sands, is from the New Martinsville-Paden City area and she met and began dating Appellant while she

607 S.E.2d 442
was still in high school. Although they are not married, Appellant and Ms. Sands are the parents of a two-year-old son. According to Ms. Sands, the relationship with Appellant had deteriorated after the baby was born. What occurred between the couple on July 23 and 24, 2001, when the crimes at issue occurred, as well as the events in the months immediately preceding the dates in July, are largely in dispute

Explaining how Appellant's behavior became controlling and possessive in the months prior to the dates in July 2001, Ms. Sands testified about specific incidences where Appellant used force to keep her away from other people. In order to make her comply with his wishes, Ms. Sands said that Appellant had at one point placed his hand over her mouth and nose so that she could not breathe; other examples included holding her captive in a house and slapping her with his hands and hitting her on the legs with a telephone cord. She also related that after she had terminated her relationship with Appellant in late April 2001, he used force to get into Ms. Sands' car with Ms. Sands and her male companion, and threatened to stab the companion in the neck with a screwdriver Appellant had located in the car. Ms. Sands obtained domestic violence protective orders in Wetzel County against Appellant. The protective orders did not deter Appellant who went to Ms. Sands' place of work, Telespectrum,2 in Wheeling, West Virginia on June 27, 2001, while a protective order was in effect. Ms. Sands said that Appellant lured her to join him outside by informing her that he had their baby and she should come out and say good bye to him. When she realized Appellant was lying, Ms. Sands said she called her grandmother who lived near her in Wetzel County and with whom she had a close relationship. The grandmother thereafter called the police and Appellant was arrested by two Wheeling police officers for violating the protective order then in force. According to Ms. Sands, Appellant employed a similar ruse to get her to leave work on July 23, 2001.

Ms. Sands testified that on July 23, 2001, she was at her work station at Telespectrum when one of her friends approached her to tell her that Appellant was outside. When she did not go outside to see him, Appellant came into her work area. Ms. Sands said Appellant tried to get her to leave work by telling her he had learned about a court hearing being conducted that morning at which Ms. Sands' mother was trying to obtain custody of the baby. As Ms. Sands was living with her mother at the time and her mother had not told her about such a hearing, Ms. Sands said saw no reason to believe Appellant. A supervisor who testified at trial said that when she asked Appellant to leave he willingly left without incident. According to Ms. Sands, as the supervisor was walking away, Appellant held up his shirt so that Ms. Sands could see he had a gun in the waistband of his pants, and at the same time Appellant informed her that if she did not come outside of the building at her next break then he would be returning to "cause a scene." Ms. Sands went outside on her next break around noon to find Appellant near the door with the gun still underneath his shirt. Ms. Sands maintains that she then walked away with Appellant because he said that if she did not he would kill her and then kill himself. When they arrived at a car which Ms. Sands knew belonged to Appellant's father, Ms. Sands said she tried to turn around and return to work because she knew the father would not knowingly allow Appellant to use the car because the son's driver's license had been suspended. In response to her attempts to leave, Ms. Sands contends that Appellant grabbed her, punched the back of her head and held the gun up to the area of her heart. The struggle resulted in Ms. Sands being forced onto the floor of the front passenger seat of the car.

Although Ms. Sands could not see where they were going, she said that Appellant drove around for a long period of time. It appears that Appellant drove to Ohio, but it is not entirely clear from Ms. Sands' testimony whether the first stop Appellant made in Ohio was at Barkcamp State Park (hereinafter

607 S.E.2d 443
referred to as "Barkcamp") or a BP gas station located in the vicinity of the Interstate 70 exit ramp for Barkcamp.3 While the record does not fix a time when the couple were at Barkcamp, a credit card receipt in the record established that the stop at the BP gas station was made approximately five hours after Ms. Sands went on her break at Telespectrum. Regardless of the sequence, significant events occurred at each stop

Ms. Sands said that Appellant used her credit card at the BP gas station against her wishes. She further explained that she tried to get out of the car while Appellant was pumping gas, but he grabbed her by her clothes and pulled her back in the car, causing her shirt to stretch out of shape and the strap of her bra to break. The damage done to the clothing required Ms. Sands to put on a different shirt that was in the car.

According to Ms. Sands, Barkcamp is where she was raped by Appellant. Ms. Sands testified that when she got out of the car at Barkcamp Appellant pushed her towards the woods, forcing her to walk in the underbrush rather than on a nearby path. As related by Ms. Sands, Appellant told her he did not want her to walk on the path because he wanted her to "suffer like he had to suffer, because he used to hide in the woods whenever the police were looking for him" for violating a protective order she had obtained against him. Ms. Sands explained that they argued as they walked until they came up to a fallen tree, and then Appellant pushed her down over the tree where he raped her vaginally and anally. Ms. Sands was then forced by Appellant to walk through the underbrush on the return trip to the car.

Ms. Sands related that the next stop was at a Subway shop where Appellant purchased a sandwich.4 According to Ms. Sands, she stayed in the car while Appellant went into the Subway, and she did not attempt to leave the car or run away. Thereafter, Appellant drove to Senecaville Lake,5 where the couple fed bread from the sandwich purchased at Subway to the ducks. Ms. Sands said that when they left the lake she did not see where they were driving because Appellant made her keep her head down until the next stop at Wolf Run State Park (hereinafter referred to as "Wolf Run") near Caldwell, Ohio.6 According to a Wolf Run ranger, Appellant parked his car at the far end of the parking lot near the ranger station and walked to the station to get information about the park facilities. Appellant then returned to the car and, as Ms. Sands explained, Appellant drove to Hannibal, Ohio, where they parked in a "wide spot" and stayed the night in the car.7 On cross examination Ms. Sands stated that she and Appellant did not engage in sex during this stop.

The next day, July 24, 2001, Appellant drove to a Chevron gas station in Hannibal where Ms. Sands testified he again used her credit card without her permission. Ms. Sand's said that while Appellant was removing the credit card from her purse he found a picture of one of her male friends. Ms. Sands testified that this discovery caused Appellant to question her about the type of relationship she had with the man; during the questioning Ms. Sands said Appellant hit her repeatedly on the arm, leg and head. After completing the gas purchase, Appellant drove southward from Hannibal. He next stopped at a rest area where he allowed...

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35 practice notes
  • Herbert J. Thomas Mem'l Hosp. Ass'n v. Nutter, No. 15-0695
    • United States
    • Supreme Court of West Virginia
    • November 17, 2016
    ...learned from other persons offered merely to explain prior conduct in carrying out the investigation is not hearsay."); State v. Dennis, 216 W.Va. 331, 350, 607 S.E.2d 437, 456 (2004) (Statement was not hearsay, because "the victim's out-of-court statement was not offered for the truth of t......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...were admissible as res gestae of the shooting depends on whether the statements were intrinsic. The State cites to State v. Dennis, 216 W.Va. 331, 607 S.E.2d 437 (2004), in support of its proposition that the events were intrinsic. In Dennis, we evaluated the admissibility of testimony alle......
  • State v. Woodson, No. 33701.
    • United States
    • Supreme Court of West Virginia
    • November 6, 2008
    ...under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules. See Syl. Pt. 6, State v. Dennis, 216 W.Va. 331, 607 S.E.2d 437 (2004); syl. pt. 2, State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096, 15......
  • State v. Saucier, No. 17502.
    • United States
    • Supreme Court of Connecticut
    • July 17, 2007
    ...Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim. App.2003); State v. Voorheis, 176 Vt. 265, 272, 844 A.2d 794 (2004); State v. Dennis, 216 W.Va. 331, 349-50, 607 S.E.2d 437 (2004); State v. Manuel, 281 Wis.2d 554, 568-69, 697 N.W.2d 811 (2005); Boykin v. State, 105 P.3d 481, 482-83 9. Four j......
  • Request a trial to view additional results
35 cases
  • Herbert J. Thomas Mem'l Hosp. Ass'n v. Nutter, No. 15-0695
    • United States
    • Supreme Court of West Virginia
    • November 17, 2016
    ...learned from other persons offered merely to explain prior conduct in carrying out the investigation is not hearsay."); State v. Dennis, 216 W.Va. 331, 350, 607 S.E.2d 437, 456 (2004) (Statement was not hearsay, because "the victim's out-of-court statement was not offered for the truth of t......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...were admissible as res gestae of the shooting depends on whether the statements were intrinsic. The State cites to State v. Dennis, 216 W.Va. 331, 607 S.E.2d 437 (2004), in support of its proposition that the events were intrinsic. In Dennis, we evaluated the admissibility of testimony alle......
  • State v. Woodson, No. 33701.
    • United States
    • Supreme Court of West Virginia
    • November 6, 2008
    ...under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules. See Syl. Pt. 6, State v. Dennis, 216 W.Va. 331, 607 S.E.2d 437 (2004); syl. pt. 2, State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096, 15......
  • State v. Saucier, No. 17502.
    • United States
    • Supreme Court of Connecticut
    • July 17, 2007
    ...Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim. App.2003); State v. Voorheis, 176 Vt. 265, 272, 844 A.2d 794 (2004); State v. Dennis, 216 W.Va. 331, 349-50, 607 S.E.2d 437 (2004); State v. Manuel, 281 Wis.2d 554, 568-69, 697 N.W.2d 811 (2005); Boykin v. State, 105 P.3d 481, 482-83 9. Four j......
  • Request a trial to view additional results

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