State v. McIntosh

Citation207 W.Va. 561,534 S.E.2d 757
Decision Date12 July 2000
Docket NumberNo. 26849.,26849.
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Donald McINTOSH, Defendant Below, Appellant.

Darrell V. McGraw, Attorney General, David P. Cleek, Senior Deputy Attorney General, Charleston, West Virginia, Attorneys for Plaintiff.

Raymond H. Yackel, Esquire, Oliver & Yackel, Franklin D. Cleckley, Morgantown, West Virginia, Attorneys for Defendant.

PER CURIAM:

This is an appeal by Donald McIntosh (hereinafter "Appellant") from an order of the Circuit Court of Monongalia County convicting him of three counts of third degree sexual assault. The Appellant was sentenced to one to five years on each count, to run concurrently.1 The Appellant contends that the lower court erred by permitting the introduction of evidence of other bad acts, in preventing cross-examination of a witness concerning her mental health history, and in allowing the conviction to stand despite a variance between the indictment and the testimony. Upon thorough review of this matter, we affirm the convictions rendered below.

I. Facts

In June 1997, Ms. Erika Miller registered a complaint with the Morgantown, West Virginia, police department regarding harassing telephone calls allegedly made by the Appellant.2 In the course of the investigation into the telephone calls, Ms. Miller informed the police that the Appellant had been her teacher in the sixth and ninth grades and had traded better grades for sexual favors in 1989 and 1990, including fondling, oral sex, and intercourse. During the investigation, Ms. Miller also informed the police that the Appellant had similarly induced other female students to perform sexual acts in exchange for more favorable grades during the same general time period.3

At trial, Ms. Miller testified that the Appellant, while serving as her teacher in the sixth and ninth grades, had expressed his love for her and had informed her that she could improve her grades by meeting him after class. Ms. Miller testified that, during her ninth grade year in 1989 and 1990, she and the Appellant occasionally drove around Morgantown in the Appellant's vehicle as he collected payments for the Dominion Post newspaper. Ms. Miller testified that the Appellant fondled her in November 1989 while she and the Appellant were sitting in the Appellant's vehicle copying answers from written keys to tests. Ms. Miller further testified that the Appellant placed his hand on her breast area and forced Ms. Miller to touch and rub his penis. She testified that the Appellant subsequently unzipped his pants, pushed her seat back, got on top of Ms. Miller, and began to push his penis against her. She explained that he thereafter inserted a finger into her vagina and warned her not to tell anyone about the incidents.

Ms. Miller also testified regarding an incident of oral sex in September 1989, including an incident in which the Appellant requested oral sex from both Ms. Miller and another young woman, Ms. Betty Barefoot. Ms. Miller explained that the Appellant caused her to perform oral sex on him in February 1990 and again in April or May 1990.

Ms. Betty Barefoot testified that she had occasionally ridden home with the Appellant and Ms. Miller while in junior high school in 1989 and 1990. Ms. Barefoot stated that the Appellant once unlocked a school building, escorted Ms. Barefoot and Ms. Miller to a small room, and requested that they both perform oral sex on the Appellant. Ms. Barefoot testified that she declined to perform the act, but that she witnessed Ms. Miller performing oral sex on the Appellant. Ms. Barefoot also testified that she and Ms. Miller would take turns sitting up front in the Appellant's automobile. The Appellant would touch the breast and crotch areas of the girl sitting up front and would require the girl to touch his penis. Ms. Brenda Frum testified that she was in a third or fourth grade class taught by the Appellant in 1976. She testified that she had become ill while on the playground and that she requested permission from the Appellant to go inside and telephone her mother. She testified that the Appellant had suggested that she would feel better if she went inside and put her head down. She complied, and the Appellant later joined her in the school. She testified that the Appellant began rubbing her shoulders, playing with her hair, and moving his hands in a down and forward motion on her chest. She testified that she had become uncomfortable and had asked again to telephone her mother. The Appellant indicated to her that what he was doing would make her feel better. He also advised her not to tell anyone about the incident because she would get into trouble. She further explained that he continued to hug her throughout the school year for getting good grades.

Ms. Lisa Fowler testified regarding an event which occurred while she had the Appellant for eighth grade in 1994. She had approached the Appellant and asked how she could improve her grade in his class. He advised her to talk to him after class in the teachers' lounge. She and two other girls then met him after class in the lounge. She testified that the Appellant told her that the only way to improve her grade was to perform sexual activity with him. One of the other girls allegedly present during this conversation testified that she could not remember the incident due to her poor memory.

Ms. Dawn Moury testified that she had the Appellant for fifth grade in 1982. She explained that the Appellant would ask her to sit on his lap while she waited for her mother to arrive after school. She stated that the Appellant would place his hands on her shoulders, back, waist, breasts, and between her thighs.

The Appellant did not provide an alibi defense; he simply denied that he had inappropriately touched any student. The Appellant called witnesses to testify concerning his truthful and honest nature, and fellow teachers also testified that the Appellant had maintained a good rapport with his students. The Appellant was convicted of three counts of sexual assault in the third degree in September 1998 and was sentenced to three one-five year sentences to run concurrently. A motion for a new trial was denied and that final order on the jury's verdict was entered on March 15, 1999.

II. Discussion
A. West Virginia Rule of Evidence 404(b)

The Appellant contends that the lower court erred by admitting evidence of "other bad acts" under Rule 404(b) of the West Virginia Rules of Evidence4 and/or State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). The Appellant argues that most of the evidence was irrelevant and that "all the evidence in its cumulative form was unfairly prejudicial." Further, the Appellant contends that the lower court inappropriately merged the principles of Rule 404(b) and the principles articulated in Edward Charles L. Finally, the Appellant advocates reversal of Edward Charles L.

1. Standard of Review

In State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), the defendant had argued that prejudicial evidence with limited probative value had been presented to the jury. In assessing the defendant's contentions, we delineated the following standard of review for Rule 404(b) evaluations:

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. 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),

aff'd,

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).

196 W.Va. at 311, 470 S.E.2d at 629-30 (footnote omitted).

This Court has specified that a circuit court abuses its discretion in admitting Rule 404(b) evidence only where the court acts in an "arbitrary and irrational" manner. State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994). We specified as follows:

Our function on this 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.

Id.

In LaRock, we noted that "[t]he balancing of probative value against unfair prejudice is weighed in favor of admissibility and rulings thereon are reviewed only for an abuse of discretion." 196 W.Va. at 312, 470 S.E.2d at 631. This Court "applies a reasonableness standard and examines the facts and circumstances of each case." Id. Further, this Court "reviews disputed evidence in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effects." Id.

2. Guiding Precedent

In syllabus point one of Edward Charles L., we acknowledged the fundamental principles of Rule 404(b), as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. W.Va.R.Evid. 404(b).

183 W.Va. at 643, 398 S.E.2d at 125, Syl. Pt. 1.

In State v....

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