State v. Mongold

• Decision Date: 06 June 2007
• Docket Number: No. 33222.,33222.
• Citation: 647 S.E.2d 539
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Jeremiah David MONGOLD, Defendant Below, Appellant.

647 S.E.2d 539

STATE of West Virginia, Plaintiff Below, Appellee, v. Jeremiah David MONGOLD, Defendant Below, Appellant.

No. 33222.

Supreme Court of Appeals of West Virginia.

Submitted May 22, 2007.

Decided June 6, 2007.

Concurring Opinion of Justice Starcher June 29, 2007.

SYLLABUS BY THE COURT

1. "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." Syllabus point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

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).

Lawrence E. Sherman, Jr., Romney, for Appellant.

Darrell V. McGraw, Jr., Attorney General, James W. Wegman, Assistant Attorney General, Charleston, for Appellee.

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.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Mongold resided in Shanks, West Virginia, with his wife, Shiloh Aumock, and her two children, five-year-old Logan and two-year-old Hannah.¹ According to the testimony of Mr. Mongold, on the morning of May 16, 2004, he got out of bed and provided breakfast for Logan and Hannah.² After breakfast, Mr. Mongold began playing with the children. One of the games they played was called "airplane." This game required Mr. Mongold to lie on his back and place one of the children on his raised legs and, while holding the child's hands, twirl the child in the air. Mr. Mongold played airplane with Logan first. Then he began playing with Hannah. He played with Hannah for about four minutes. According to Mr. Mongold, after he played airplane with Hannah, he attempted to pick her up and noticed that she was limp and felt like jello. Mr. Mongold immediately called 911 for help.

In response to the 911 call, two emergency medical technicians (hereinafter referred to as "EMTs") arrived at the home and found Hannah lying on the kitchen floor. The EMTs observed that Hannah was barely breathing, her skin was turning blue, and two bruises were over her right eye. Within minutes of observing Hannah's condition, the EMTs placed her in the ambulance and began transportation to a local hospital. However, after a further examination of Hannah in the ambulance, the EMTs determined that her condition warranted helicopter transportation to a better equipped hospital in Maryland. Consequently, the ambulance proceeded to a local fire station to connect with the helicopter. While en route to the fire station, arrangements were also made by the EMTs for a paramedic to rendevous with the ambulance. The paramedic reached the ambulance and began examining Hannah while still en route to the fire station. The paramedic determined that Hannah's symptoms suggested that she had a head injury.

Once the ambulance arrived at the fire station, Hannah was placed into a helicopter. She was flown to Cumberland Memorial Hospital, in Cumberland, Maryland. While at the hospital, it was determined that Hannah suffered from brain swelling and that she had blood on the surface of her skull. As a result of the severity of Hannah's head injuries, she was transported to Johns Hopkins Hospital in Baltimore, Maryland.

At Johns Hopkins Hospital, tests revealed that Hannah suffered from either asphyxiation/strangulation or severe head trauma. Despite efforts to resolve her brain injuries, Hannah died two days later. Subsequent to her death, an autopsy was performed on Hannah. The autopsy revealed that Hannah had sustained four blunt impacts to her head and that those injuries caused her death.

On September 7, 2004, a grand jury returned a one-count indictment against Mr. Mongold, charging him with causing Hannah's death by a parent, guardian or custodian by child abuse. The case was tried before a jury in March of 2005. During the trial, Mr. Mongold testified on his own behalf. Mr. Mongold's defense was that Hannah's injuries may have been caused when the family dog knocked her down on May 15, or when she fell from the deck of the home on the same day. Alternatively, Mr. Mongold suggested that the injuries to Hannah occurred while he played "airplane" with her on May 16. The State's evidence indicated that the injuries sustained by Hannah could not have been caused by being knocked down by a dog, falling from the deck of the home, or while playing the game of "airplane." The jury rejected Mr. Mongold's defense and convicted him. Subsequent to the conviction, the trial court sentenced Mr. Mongold to a definite term of imprisonment of forty years. All post-trial motions were denied. Mr. Mongold then filed this appeal.

II. STANDARD OF REVIEW

Three issues are presented in this appeal that generally involve the admission of evidence to which Mr. Mongold objected. We have held as a general rule that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). See also State v. Guthrie, 194 W.Va. 657, 680, 461 S.E.2d 163, 186 (1995) ("[M]ost rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard. . . . [A]n appellate court reviews de novo the legal analysis underlying a trial court's decision."). We will provide additional review standards as they apply to each specific issue presented.

III. DISCUSSION

A. Admission of Evidence of a Prior Child Abuse Incident

The first issue raised by Mr. Mongold involves the State's cross-examination...