State v. Taylor, No. 31405.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM.
• Citation: 593 S.E.2d 645,215 W.Va. 74
• Decision Date: 03 February 2004
• Docket Number: No. 31405.
• Parties: STATE of West Virginia, Plaintiff below, Appellee, v. Edwin Mack TAYLOR, Defendant below, Appellant.

593 S.E.2d 645
215 W.Va. 74

STATE of West Virginia, Plaintiff below, Appellee,
v.
Edwin Mack TAYLOR, Defendant below, Appellant

No. 31405.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 2004.

Filed February 3, 2004.

Dissenting Opinion of Justice Albright March 24, 2004.

Dissenting Opinion of Justice Davis, joined by Chief Justice Maynard filed February 3, 2004

593 S.E.2d 647

Amanda H. See, Moorefield, Counsel for Appellant

Dennis V. DiBenedetto, Grant County Prosecuting Attorney, Petersburg, Counsel for Appellee.

593 S.E.2d 646

PER CURIAM

Edwin Mack Taylor (hereinafter "Mr. Taylor") appeals his convictions for two counts of breaking and entering, one count of grand larceny, and one count of petit larceny¹ in the Circuit Court of Mineral County.² After having read the briefs, reviewed the record, and heard oral argument, we find that the circuit court violated W. Va. R. Evid. 404(b) by allowing evidence whose prejudicial effect substantially outweighed its probative value. Thus, we reverse Mr. Taylor's conviction and remand this case for a new trial.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Taylor was indicted for the breaking and entering of a building owned by Grant County Mulch, Inc. and for committing the grand larceny of a number of power tools stored therein. In this same indictment he was also indicted for the breaking and entering of a building owned by Schell Farms, Inc. as well as for the grand larceny of a number of power tools stored therein. These crimes occurred in December of 2000.

On December 5, 2001, the State filed a notice of intent to use Rule 404(b)³ evidence (hereinafter "the 404(b) notice"). In the 404(b) notice, the State explained that

the Defendant was a user of various controlled substances, particularly methamphetamine, during the time frame that encompassed the commission of these crimes. The Defendant purchased controlled substances from Jamie W. Sites and often paid for same by selling to Mr. Sites stolen property or using cash which he acquired by selling stolen property to others.

The 404(b) notice further provided that "[s]everal of the State's witnesses were aware of the Defendant's drug habit and were also aware that the Defendant's habit of stealing property for the purpose of funding his drug habit." The notice finished that "[t]his evidence would be used to show intent, motive, scheme and complete story."

593 S.E.2d 648

On February 15, 2002, the circuit court conducted a hearing on the State's intent to use 404(b) evidence. At the hearing, Wesley Rohrbaugh testified that Mr. Taylor was his roommate and that Mr. Taylor had admitted to using drugs such as "[c]rystal meth, crank, maybe, marijuana." Mr. Rohrbaugh also testified that his personal observations of Mr. Taylor indicated that he was suffering from a change in behavior that Mr. Rorhrbaugh believed illustrated Mr. Taylor's problem with drugs.⁴ This testimony of drug use was confirmed by Greg Fortner, whose trial and in camera testimony was that he consumed methamphetamine and other drugs with Mr. Taylor. The State also elicited testimony from Cowan H. Pennington that he knew Mr. Taylor and that he smoked marijuana with Mr. Taylor and observed Mr. Taylor a "couple of times" with a "crushed up ... white, powdery substance" that Mr. Taylor "stuck... on a piece of aluminum foil, and ... burnt the bottom of the aluminum foil, [and] sucked in the smoke with the pen." Although he testified he was not sure, Mr. Pennington stated that he believed Mr. Taylor told him that the drug he was smoking was "crystal meth." Mr. Pennington also testified that Mr. Taylor tried to sell a water pump that was identical to one that Mr. Pennington's uncle reported missing and that Mr. Taylor unsuccessfully sought Mr. Pennington's help in stealing a snowblower and lawnmower for a friend. Mr. Pennington finally testified that during this period, Mr. Taylor did not have a job. At trial, Mr. Pennington's testimony was generally consistent with his in camera testimony.

The final witness the State presented was Jamie W. Sites who testified, both at the in camera hearing and trial that he was a methamphetamine dealer and that he would trade methamphetamine to Mr. Taylor in exchange for money and property, either directly or through Greg Fortner, including property that had been taken from Grant County Mulch and Schell Poultry.

After the presentation of this testimony, the circuit court found that by a preponderance of the evidence ... the Defendant did have a problem with the use of controlled substances, especially methamphetamine before, during and after the time frame of the crimes with which he is charged. The Defendant's drug problem and his habits of stealing to fund said drug habit are relevant to the charges in this Case under the Rules of Evidence. Upon balancing the evidence the Court would find that the probative value does outweigh its prejudicial effect. Said evidence will be useable by the State in its case in chief for the limited purposes of establishing motive, intent, scheme or plan and complete story.

At trial, over Mr. Taylor's renewed objections, the witnesses from the 404(b) hearing testified in substantial conformity with their 404(b) hearing testimony.

II.

STANDARD OF REVIEW

In this appeal, we are asked to examine whether the trial court properly admitted evidence of Mr. Taylor's history of drug use under Rule 404(b). In applying Rule 404(b), we have held:

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

593 S.E.2d 649

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.

Syl. pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

We have further said that

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.

State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996) (footnote omitted). We have also held that "[a]s 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." Syl. pt. 10, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). With this standard in mind, we turn to the parties' contentions.

III.

DISCUSSION

Mr. Taylor makes two assignments of error. He first contends the circuit court erred in finding that there was a proper purpose supporting introduction of Mr. Taylor's drug use. He alternately posits that Mr. Taylor's drug use violated W. Va. R. Evid. 403 since its prejudicial effect substantially outweighed its probative value. The State responds that the circuit court correctly found that Mr. Taylor's drug use was legitimately offered to show his motive, scheme, plan or intent and that this evidence did not unfairly prejudice Mr. Taylor. We find that the State's 404(b) evidence was improperly admitted because its prejudicial effect substantially outweighed its probative value under Rule 403.

Mr. Taylor contends that the introduction of his habitual drug use unfairly prejudiced him under W. Va. R. Evid. 403. Under Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...." While we have held that we review a trial court's decision that the probative value of evidence is not substantially outweighed by its prejudicial effect is reviewed only for abuse of discretion, e.g., syl. pt. 10, Derr; Gable v. Kroger Co., 186 W.Va. 62, 66, 410 S.E.2d 701, 705 (1991) ("Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude any evidence the probative value of which is substantially outweighed by the danger of unfair prejudice to the defendant. Such decisions are left to the sound discretion of the trial judge ...."); In re Interest of Carlita B., 185 W.Va. 613, 630, 408 S.E.2d 365, 382 (1991) ("While we recognize that the probative value of such evidence may, at some point, be substantially outweighed by its unfair prejudicial impact, that balancing is within the sound discretion of the trial court, and its decision will be reversed only upon a clear abuse of discretion."), "[w]e have also...