Date: 05-11-2022

Case Style:

State of West Virginia v. Kyle Lewis Taylor

Case Number: 21-0268

Judge: Tim Armstead

Court:

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

On appeal from a CORRECTED MEMORANDUM DECISION

Plaintiff's Attorney: Patrick Morrisey and Scott E. Johnson

Defendant's Attorney:

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Charleston, West Virginia - Criminal Defense lawyer represented defendant with appealing two counts of sexual assault charges.

During an October 31, 2018, Halloween party at the residence of M.S.,1 then a twenty-oneyear-old college student and the victim in this case, M.S. became intoxicated and lost
consciousness. M.S. claimed that early the next morning, she awoke to petitioner forcibly raping
her in her bed. At 1:30 p.m. on November 1, 2018, M.S. went to a hospital and made a report of
sexual assault. Deputy Larson of the Berkeley County Sheriff’s Department took M.S.’s statement
regarding the alleged assault. Sexual Assault Nurse Examiner (“SANE”) Carrie Smith performed
a sexual assault examination of M.S. who reported voluntary alcohol and drug use prior to the
assault, as well as memory loss and lapse of consciousness. As part of the examination, SANE
Smith took pictures of M.S.’s body and collected blood samples for a toxicology and potential
1 Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
FILED
April 25, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
2
DNA analysis. Thereafter, Lt. Hall, also from the Berkeley County Sheriff’s Department, obtained
written statements from M.S., her roommates Brenna T. and Michael M., and her friend, Hailey S.
On November 16, 2018, Lt. Hall served an arrest warrant on petitioner, executed a search
warrant for a DNA sample from petitioner, and (after petitioner waived his Miranda rights) took
a post-arrest custodial statement from petitioner. An October 21, 2019, lab report results indicated
that petitioner could not be excluded as the source of the DNA in the swabs taken from M.S.’s
vagina on November 1, 2018.
On May 30, 2019, a Berkeley County grand jury indicted petitioner on three counts of
sexual assault in the second degree. Count 1 alleged that petitioner attempted to insert his penis
into M.S.’s vagina; Count 2 alleged that petitioner attempted to place his mouth on M.S.’s vagina;
and Count 3 alleged that petitioner attempted to insert his penis into M.S.’s anus. Count 4 alleged
attempted sexual assault in the second degree by forcing or attempting to force M.S. to perform
oral sex upon petitioner.
The State provided petitioner with a copy of SANE Smith’s report and, on February 13,
2020, designated her as an “expert witness in the field of sexual assault nurse examinations.” The
State also told petitioner that SANE Smith “will testify as to the examinations she performed on
[M.S.] and the findings of her report previously provided for discovery.”
On October 12, 2020, petitioner’s trial counsel filed a motion in limine
to restrict, suppress, and prohibit the State’s use of any so-called “similar or prior
bad acts” evidence [W.V.R.E. Rule 404(b)], absent a showing that they are relevant
(sufficiently related to the charged offense) to an issue other than character;
necessary (an essential part of the crimes on trial, or furnished part of the context
of the crime); and reliable; and absent a showing that the State has complied with
the requirements set forth in State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516
(1994).
(Emphasis in the original.) Specifically, petitioner argued that under West Virginia Rule of
Evidence 404(a) and (b), the trial court should preclude: (1) petitioner’s statements to a proposed
witness, Michael M., that petitioner was wanted on a felony drug manufacturing charge in
California, and (2) petitioner’s photos of a marijuana grow that he had sent to others. Petitioner
argued this information was not relevant to the instant case, had no probative value, and was
unfairly prejudicial.
At an October 13, 2020, pretrial hearing, the State said, “[t]hose are prior bad acts, we don’t
intend to introduce them. I have spoken with our witnesses and advised them that all that stuff is
out of bounds. We can’t bring it in. So we’re fine with that.” In a subsequent pretrial order, the
court ruled that “[w]ith regard to [petitioner’s] Motion in Limine, the State conceded that the
information relating to marijuana charges and distribution are prohibited under Rule 404(b) . . .
and agreed not to elicit any testimony relating to that topic in its case-in-chief.”
3
Petitioner’s trial commenced on October 13, 2020. During its case-in-chief, the State called
Lt. Hall, who investigated the case; SANE Smith; forensic scientist and DNA expert Nichole
Johnson; M.S.’s three roommates, Thomas B., Michael M. and Brenna T.; M.S.’s friend, Hailey
S.; and M.S.
Through Lt. Hall and SANE Smith, the State elicited the contents of the statements made
by M.S. and the SANE report without objection from petitioner’s counsel. Specifically, Lt. Hall
said he spoke with M.S. at the hospital on November 1, 2018, and that she told him the following.
She had a party at her house the night before where she became heavily intoxicated. Her friends
carried her to her bedroom. Later, she awoke to find petitioner taking off her bottom clothes. She
said that, thereafter, she “blacked out” and, when she awoke again, petitioner was having
intercourse with her. Lt. Hall testified that M.S. was very upset and he could tell she had been
crying. Lt. Hall further testified that at a second interview of M.S., she identified petitioner as her
assailant, again said she was very intoxicated at the party, and then broke down in tears. Lt. Hall
said that petitioner was thereafter arrested and read his Miranda rights. During petitioner’s
voluntary statement, he showed Lt. Hall a text message he sent to M.S. stating: “Hey, it’s
[petitioner]. I just want to let you know that I’m extremely sorry. I like you and I don’t want seems
[sic] to start off like sh[-]t. If there’s anything I can do, please let me know.”
The State then called SANE Smith who was qualified as an expert in forensic nursing.
SANE Smith testified that M.S. told her that on the night of the Halloween party (1) M.S. drank
to the point of losing consciousness and went to bed; (2) she awoke as petitioner was trying to
remove her clothes; (3) she told him to “[p]lease stop”; (4) she awoke again and tried to leave the
bed, but petitioner pulled her back onto it; (5) she finally gave up “because she just wanted him to
finish”; (6) petitioner penetrated her vaginally and anally, and performed cunnilingus on her; and
(7) she tried to choke petitioner and push him off of her. SANE Smith also testified regarding her
sexual assault examination of M.S. noting that she observed micro-abrasions to the posterior
fourchette of M.S.’s vagina and some bleeding from M.S.’s rectum. Ms. Smith classified M.S.’s
injuries as consistent with M.S.’s report of a forceful sexual assault. The State then asked the
significance of the micro-abrasions on M.S.’s vagina and anus. Ms. Smith replied:
. . . I have learned that with consensual intercourse versus nonconsensual
intercourse any type of vaginal injury that a patient presents [eleven] percent of
those patients will have injuries [that are] from consensual intercourse . . . .
Eighty-nine percent of the time [the injuries are] from sexual assault or forced
vaginal penetration of someone nonconsensual; . . . [therefore] if you have two
areas that are injured, meaning two different areas of injuries in the perineum area,
it is more indicative of a nonconsensual assault.
The State next called Nicole Johnson, a forensic scientist at the West Virginia State Police
Forensic Lab, Biology DNA Section, who was qualified as an expert in biochemistry and DNA
analysis. Ms. Johnson testified that she analyzed M.S.’s vaginal wall swabs and petitioner’s
specimens and concluded that the DNA in M.S.’s vaginal swabs was consistent with petitioner’s
DNA profile.
4
Thomas B., one of M.S.’s roommates, was the State’s next witness. He testified that at the
time of the Halloween party, he lived with M.S., Michael M., and Brenna T., and that they all went
to college together. Thomas testified that he, his roommates, Hailey S., and petitioner were present
at the party and that, except for petitioner, the attendees were all close friends. Thomas said he saw
petitioner having casual conversation with those at the party but nothing to show that M.S. was
romantically interested in petitioner. Thomas further testified that M.S. became very drunk, was
throwing up and slurring her words, and went to bed early. Thomas said M.S. did not drink often
and, when she did, she had “maybe one or two spritzers.” Thomas also said that when he went to
bed two people were still at the party: Hailey and petitioner. Thomas said he learned of the assault
the next day and that M.S.’s behavior changed thereafter in that she became very withdrawn, did
not often leave the house, and was not comfortable in the house.
On cross-examination, petitioner’s counsel asked Thomas about the alcohol, marijuana,
and opiates at the Halloween party. Thomas admitted that M.S. was using “marijuana wax” that
night. During an ensuing sidebar, the State argued that petitioner’s counsel had opened the door to
Rule 404(b) evidence from other witnesses that petitioner was the person who brought the
marijuana to the party. Defense counsel countered that the State had disclosed no such evidence
and that intoxication went to M.S’s. state of mind. The court ruled that the defense had opened the
door to who brought the marijuana to the party, but that the State could not elicit testimony as to
whether petitioner was dealing marijuana. On redirect, the State asked Thomas who supplied the
marijuana to M.S. on the night of the party. Thomas replied that he did not remember who supplied
the marijuana.
The State next called Michael M. who testified that he was one of M.S.’s three roommates,
that he attended the Halloween party, and that he first met petitioner at the party. Michael said that
in addition to marijuana wax there was also “flower form marijuana” at the party. When asked by
the State who provided the marijuana, Michael said that petitioner brought it and sold it to M.S.
Immediately thereafter at a side bar regarding the marijuana testimony, petitioner’s counsel said,
“I thought you ruled that the prejudicial effect outweighed the probative value and we weren’t
going to go there.” The court responded, “Well, I don’t know that the question that was asked was
responded to the way I would have expected it to be responded to.” The State argued that the
evidence was “intrinsic to the case and it’s been made intrinsic by [petitioner’s counsel’s]
arguments. He’s made the marijuana a huge part of this case, so I think that makes the sale to the
victim part of this case as well.” The Court replied, “Well, let’s not go any – or delve any deeper
into the marijuana issues.” Petitioner’s counsel said he was “satisfied” with that result.
Thereafter, Michael continued his testimony stating that M.S. did not drink often; that, at
the party, M.S. was so intoxicated he was afraid she would fall off the balcony; and that M.S. had
no control and her sentences were barely coherent. Michael further testified that he did not observe
M.S. being affectionate in any way to petitioner. Michael then said that he heard petitioner ask
M.S., “What’s the deal with your boyfriend?” and, “What do you think about me?” and tell her, “I
think you’re really attractive.” Michael testified that M.S. replied something to the effect that “I
don’t know you very well.” Michael said that in response to petitioner’s statements, he asked
Brenna to “intercept” the conversation between petitioner and M.S. and that Brenna complied and
broke up the conversation. Michael said he also heard petitioner tell petitioner’s friend, Hailey,
that “I have slept with over a thousand women” in a bragging tone. Michael said that petitioner
5
asked him where petitioner could get some “pussy” on the nearby college campus and if he knew
any loose women or could find him a woman to have sex with. Finally, Michael testified that,
following the party, M.S. became “very withdrawn, wasn’t comfortable in her own home,” did not
go back to work for a very long time, did not go into her bedroom for months, and slept with the
lights on.
Brenna T., petitioner’s third roommate, testified that (1) at the Halloween party, petitioner
made suggestive comments to M.S. and Hailey; (2) she heard petitioner tell M.S. that he found her
very attractive and that he asked M.S. if she felt the same way about him; (3) at no point in the
party did M.S. appear to be romantically interested in petitioner; (4) M.S. had consumed so much
alcohol that she lacked motor skills, could hardly talk, was throwing up, and was falling down by
the time she was put to bed; (5) she and Hailey put M.S. to bed in M.S.’s room; (6) she checked
on M.S. later and M.S. had thrown up on herself so Brenna changed her into a T-shirt and shorts;
(7) she checked on M.S. again and found her “unconscious”; (8) she awoke early and found
petitioner sleeping on a sofa in the apartment; (9) soon thereafter M.S. told her that petitioner had
raped her; (10) she went with petitioner to the hospital that same day; and (11) after the Halloween
party, M.S. “was not speaking very much . . . crying, not sleeping really at all, not feeding herself.”
Following this evidence, the court asked the jury whether “anyone [of them] would prefer
that we not have one more witness today and go to about 6:00 p.m.?” One juror asked for a quick
break. Thereafter, the proceedings resumed and the State called Hailey S. who testified that she
and M.S. had become best friends; M.S. drank too much at the Halloween party and ended up in
bed; and M.S. told her that petitioner took advantage of her, that she had tried to stop petitioner
but was too weak, and that she eventually just let it happen.
The next day, Friday, October 16, 2020, the State called M.S. who testified as follows: She
met petitioner about two weeks before the Halloween party and did not know him well. At the
party, she sensed that petitioner was interested in her romantically. She was drinking tequila at the
party and became pretty drunk. She did not recall flirting, kissing, or making out with petitioner.
She did recall petitioner saying that that “I think you’re really attractive and I know you think I am
too.” She recalled replying, “I don’t know you very well.” She said she felt cornered by petitioner
and was grateful when Brenna pulled her aside. She did not recall her friends putting her to bed.
She said she awoke in bed with petitioner above her and pulling off her bottoms. She asked him to
stop several times, started to cry, and lost consciousness. She said she felt “confused and terrified”
and that her friend Hailey was supposed to be sleeping next to her. When she regained
consciousness, both she and petitioner were naked and petitioner was on top of her and having sex
with her. She said she tried to choke petitioner and told him she hated him, but he laughed in her
face. She also said that she got out of her bed several times and tried to get dressed but that
petitioner pulled her back onto the bed each time. M.S. said that petitioner penetrated her vaginally
and anally and performed oral sex on her. M.S. also said that petitioner asked her to perform oral
sex upon him but she refused. She said she finally quit fighting when she realized petitioner would
not stop until he climaxed, which he eventually did. Petitioner then left her room. She said that the
next day, when she told Hailey that petitioner had raped her, Hailey and Brenna took her to the
hospital.
6
On cross-examination, petitioner’s counsel asked M.S. if she went to petitioner’s house the
day before the Halloween party. M.S. replied that she went to petitioner’s house on the day of the
party and “purchased weed from him.” At a sidebar, petitioner’s counsel sought a mistrial on the
ground that the jury had now heard a second time that petitioner sold marijuana to M.S. The State
countered that the defense posed that question and that M.S. answered it honestly. The defendant
countered that M.S. answered a question it did not ask. The court found that M.S.’s statement did
not rise to the level of a mistrial, that the jury had already heard about petitioner’s sale of marijuana,
that “weed is so commonly accepted in the community now[; in the] vast majority of the states it’s
legal. I just don’t think that it’s that prejudicial, that it’s going to create an unfair advantage for the
State.”
The State’s last witness was Katie Spriggs, the executive director of the Eastern Panhandle
Empowerment Center, who was designated as an expert in the field of victim responses to sexual
assault. Ms. Spriggs testified to normal victim behavior following a sexual assault. Specifically,
Ms. Spriggs testified that it is “incredibly common” for victims of sexual assault to give up fighting
and to let the assault happen as a way of getting through it.
Thereafter, petitioner moved for a judgment of acquittal on all four counts. Regarding
Count 4, which alleged attempted sexual assault in the second degree by forcing or attempting to
force M.S. to perform oral sex upon petitioner, petitioner argued that the State presented no
evidence in support of that count as the testimony on that charge was that petitioner told M.S. to
“suck it” and she said, “no.”
Prior to the onset of petitioner’s case-in-chief, his counsel asked the court if he could ask
petitioner “Did you sell marijuana?” without opening the door to the State’s admission of other
drug-related evidence. The State responded, “[W]e’re in odd territory where [the defense] keeps
objecting to its own questions and then continues with those questions after he makes objections.”
The court allowed the question and stated that doing so would not open the door to other drugrelated evidence.
Petitioner was the only witness for the defense. He testified that on October 30, 2018, M.S.
and Hailey came to his home and that M.S. invited him to the Halloween party. Petitioner denied
selling “weed” to M.S. during that visit. Petitioner said he asked M.S. if he could bring anything
to the party and that M.S. suggested tequila. Petitioner said that he and Hailey purchased tequila
and took it to the party. He further testified that, at the party, he and M.S. were “[k]issing with
tongues” and that M.S. was very receptive and that she held petitioner. He said that he told M.S.
that she was very attractive and that she returned the compliment. He testified that M.S. voluntarily
accompanied him to her bedroom and did not object when he kissed her, took off her bottoms, and
performed oral sex on her. Petitioner then said that he and M.S. engaged in consensual intercourse
and that, at one point, he accidentally penetrated her anus. Following this testimony, the defense
rested and petitioner renewed his motion for a judgment of acquittal, which the court denied.
Closing arguments concluded around 3:00 p.m.
Thereafter, the trial court told the parties that “I intend to keep this jury here as late as they
are willing to stay unless I notice that any of them are beginning to falter. The last thing this [c]ourt
wants is a juror to be in a position where they’re getting so tired, they give into the will of others.”
7
[I]f they can go [to] probably about ten o’clock, I would keep them here, just so if
there’s anybody with any obligations tonight you would be aware of that. I really
don’t want them weighing the case over the weekend and have the temptation of
discussing where they are and what’s happening in the jury room with family and
friends. I like to – Friday is the last day and it goes to deliberation, I like to finish
on Friday to alleviate that concern.
During their deliberations, the jurors sent two questions to the court: (1) whether they could break
for dinner; and (2) the definition of the specific event Count 4 (regarding the allegation of oral sex)
referenced. The court answered the second question by telling the jury that they had to rely on the
documents and evidence adduced at trial. Thereafter, pizza was delivered to the jury room as the
jurors deliberated.
At 9:00 p.m., the court brought the jurors back into the courtroom. The court asked the
jurors if any of them was so fatigued that they “feel like they’re checking out.” One juror raised
his/her hand and indicated that s/he would like to go home and come back the next day. The court
asked that juror if s/he could deliberate for one more hour. The juror said that s/he preferred to go
home but would give it another hour. The court asked petitioner’s counsel if he was “feeling
prejudice.” Defense counsel replied: “No, no, we’re good, we’re good, Your Honor.” The jury
stopped deliberating at 10:00 p.m. without reaching a verdict.
The jury resumed deliberations at 1:00 p.m. on Saturday. (That later start time was set
because one of the jurors had scheduled medical testing for Saturday morning.) Thereafter, the
jurors sent the court a message providing that they could not “make a decision for Counts One and
Three, what would you like us to do?” The State suggested “that’s close to calling yourself a hung
jury.” Therefore, the State suggested an Allen charge.2 Defense counsel agreed stating, “I think
that would be an appropriate way to proceed, Your Honor.” The court then read the jury the
following charge that was signed by both petitioner’s counsel and the State:
[Y]ou have informed the [c]ourt . . . of your inability to reach a verdict. At the
outset, the [c]ourt wishes you to know that although you have a duty to reach a
verdict if that’s possible, the [c]ourt has neither the power nor the desire to compel
agreement on a verdict.
The purpose of these remarks is to point out to you the importance and desirability
of reaching a verdict in this case provided however that you as individual jurors can
do so without surrendering or sacrificing your conscientious scruples or personal
convictions.
2 “The Allen charge, often called the ‘dynamite charge,’ is a supplemental instruction given
to encourage deadlocked juries to reach agreement.” Franklin D. Cleckley, Handbook on West
Virginia Criminal Procedure, Vol. II, page 257 (2nd Ed.1993). The name for this particular
instruction originated from the case of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.
528 (1896).
8
You’ll recall that upon assuming your duties in this case each of you took an oath[.]
[T]hat oath places upon each of you as individuals the responsibility of arriving at
a true verdict upon the basis of your own opinion and not merely upon acquiescence
to the conclusion of your fellow jurors; however, it by no means follows that
opinions may not be changed by conference in the jury room.
The very object of the jury system is to reach a verdict by a comparison of proofs
with your fellow jurors. During your deliberations you should be open minded and
consider the issues with proper deference to and respect for the opinions of each
other and you should not hesitate to reexamine your own view in light of such
discussions.
You should consider also that this case must at some point be terminated; that you
are selected from the same source from which any future jury may be selected; that
there is no reason to support that the case will ever be submitted to [twelve] person
more intelligent, more impartial, or more competent to decide or that more or
clearer evidence will ever be produced on one side or the other.
The court concluded that “[w]ith that instruction in mind, we’re going to send you back in the jury
room and ask you to continue working.”
An hour later, the jury found petitioner guilty on Counts One and Two and acquitted
petitioner on Counts Three and Four.
Post-trial, petitioner moved for a new trial and/or judgment of acquittal arguing that the
court erred in (1) giving an Allen charge; (2) denying petitioner’s motion for a mistrial given that
witnesses testified that petitioner sold marijuana; and (3) failing to direct a verdict in petitioner’s
favor. The State objected to the motion and the court denied it.
In an “Amended Sentencing Order” entered March 10, 2021, the trial court sentenced
petitioner for his conviction of sexual assault in the second degree as contained in Count 1 of his
indictment to an indeterminate sentence of not less than ten nor more than twenty-five years in
prison, plus a $10,000 fine. The circuit court sentenced petitioner for his conviction of sexual
assault in the second degree as contained in Count 2 of his indictment to the same sentence. The
circuit court then ordered the sentences to run consecutively for an effective combined sentence of
not less than twenty nor more than fifty years in prison to be followed by fifty years of supervised
release. The trial court also required petitioner to register as a sexual offender for life.
Petitioner now appeals and raises five assignments of error. In his first assignment of error,
petitioner argues that all four counts of his indictment were insufficient on their face because they
are duplicitous and wrongfully combined two offenses in a single count. Petitioner divides his
argument on this assignment of error into three sections. In the first section, petitioner argues that
the indictment was insufficient due to duplicity because each count charged petitioner with two
separate offenses calling into question the unanimity of the convictions.
“Duplicity is ‘the joining in a single count of two or more distinct and separate offenses.”
9
United States v. Pleasant, 125 F.Supp.2d 173, 175 (E.D.Va. 2000) (quoting United States v.
Hawkes, 753 F.2d 335, 357 (4th Cir. 1985)). “The risk behind a duplicitous charge is that a jury
may convict the defendant without unanimous agreement on a particular charge.” Id. at 175
(quoting United States v. Moore, 184 F.2d 790, 793 (8th Cir. 1999)). The policy behind outlawing
duplicitous counts includes
avoiding the uncertainty of whether a general verdict of guilty conceals a finding
of guilty as to one crime and a finding of not guilty as to another, avoiding the risk
that the jurors may not have been unanimous as to any one of the crimes charged,
assuring the defendant adequate notice, providing the basis for appropriate
sentencing, and protecting against double jeopardy in a subsequent prosecution.
United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981). However, “[a] count is not
duplicitous . . . merely because it alleges alternative means of completing a single offense. . . .
Where an indictment or information contains a duplicitous count, the proper remedy is to dismiss
the count or to require the United States to elect which offense it desires to pursue.” Pleasant, 125
F.Supp. 2d at 176.
Petitioner was charged under West Virginia Code § 61-8B-4 which regards the crime of
sexual assault in the second degree. That crime may be committed in two ways: first, where a
“person engages in sexual intercourse or sexual intrusion with another person without the person’s
consent, and the lack of consent results from forcible compulsion,” id. § 61-8B-4(a)(1); or where
a “person engages in sexual intercourse or sexual intrusion with another person who is physically
helpless.” Id. § 61-8B-4(a)(2). Petitioner notes that each count of his indictment alleged that
petitioner violated § 61-8B-4(a)(2) by engaging in sexual intercourse/sexual intrusion when M.S.
was physically helpless. He highlights, however, that each count also alleged that “the lack of
consent results from forcible compulsion or being physically helpless.” Thus, petitioner argues
that because each count of the indictment alleged that petitioner violated both § 61-8B-4(a)(2) and
-4(a)(1), each count was impermissibly duplicitous.
Petitioner further contends that the error was not corrected by the jury instructions because
the State did not elect the subsection under which it wished to proceed. Instead, the circuit court
instructed that, for each count of the indictment, the State had to prove beyond a reasonable doubt
that M.S.’s lack of consent resulted from forcible compulsion or because the act occurred when
she was physically helpless. Petitioner claims he was prejudiced by that instruction because the
jury’s verdicts on Counts 1 and 2 might have resulted from less than a unanimous verdict, i.e.,
some jurors may have been convinced beyond a reasonable doubt that M.S. was physically helpless
while others may have been convinced of no consent/forcible compulsion.
We reject petitioner’s claim that the four counts of his indictment are duplicitous because
he failed to make that objection prior to trial. Claims of duplicity must be raised before trial in
order to preserve them for appeal. Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure
provides:
(b) Pretrial Motions. Any defense, objection or request which is capable of
determination without the trial of the general issue may be raised before trial by
10
motion. Motions may be written or oral at the discretion of the judge. The following
must be raised prior to trial:
. . . .
(2) Defenses and objections based on defects in the indictment or information (other
than that it fails to show jurisdiction in the court or to charge an offense which
objections shall be noticed by the court at any time during the pendency of the
proceedings)[.]
This rule prevents “a criminal defendant from ‘sandbagging’ or deliberately foregoing raising an
objection to an indictment so that the issue may later be used as a means of obtaining a new trial
following conviction.” State v. Chic-Colbert, 231 W. Va. 749, 758, 749 S.E.2d 642, 651 (2013)
(quoting State v. Palmer, 210 W. Va. 372, 376, 557 S.E.2d 779, 783 (2001)).
Here, petitioner fails to cite to the record to show where he made any pretrial claim that his
indictment was “duplicitous.” West Virginia Rule of Appellate Procedure 10(c)(7) requires that
the argument section of an appellant’s brief “must contain appropriate and specific citations to the
record on appeal, including citations that pinpoint when and how the issues in the assignments of
error were presented to the lower tribunal. The Court may disregard errors that are not adequately
supported by specific references to the record on appeal.” State v. Trail, 236 W. Va. 167, 186, 778
S.E.2d 616, 635 (2015).
Petitioner next claims that the trial court erred in denying his motion for a judgment of
acquittal on Count 4 even though he was acquitted on that count. However, once a jury acquits on
a count, the fact that a trial court did not grant an acquittal is moot. See, e.g., State v. Williams, 660
N.E.2d 724, 732 (Ohio 1996). “A moot case generally cannot properly be considered on its merits.”
State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 156, 697 S.E.2d 740, 748 (2010).
Thus, “[c]ourts will not ordinarily decide a moot question.” Syl. Pt. 1, Tynes v. Shore, 117 S.E.2d
355, 185 S.E. 845 (1936).
Finally, petitioner speculates that the trial court’s failure to grant his motion for a judgment
of acquittal led to a “compromise” verdict. We disagree. The jury was instructed that “[a] separate
crime is charged against [petitioner] in each count. You must decide each count separately. Your
verdict on one count should not control your verdict on any other count.” “Where a case has been
submitted to a jury an appellate court cannot presume that the jury did not understand or follow
the clear import of the instructions given.” Dustin v. Miller, 180 W. Va. 186, 189, 375 S.E.2d 818,
821 (1988). Instead, “a jury is presumed to follow the court’s instructions.” Showalter v. Binion,
No. 18-0128, 2019 WL 6998319, at 4* (W. Va. Dec. 20, 2019) (memorandum decision).
Accordingly, we find no error.
In petitioner’s second assignment of error, he argues that he was prejudiced by the State’s
introduction of SANE Smith’s expert opinion testimony at trial because he was not notified of that
testimony prior to trial and, therefore, was unprepared to rebut it. Specifically, petitioner references
SANE Smith’s trial testimony that (1) in 89% of cases where micro abrasions are found on a
victim’s vagina, the abrasions are caused by non-consensual intercourse, and (2) it was more likely
11
than not that the intercourse between petitioner and M.S. was non-consensual because M.S. had
micro abrasions on her vagina and anus. Petitioner contends that the State had a duty to disclose
SANE Smith’s proposed testimony under Rule 16(a)(1)(E) of the West Virginia Rules of Criminal
Procedure (“[T]he state shall disclose to the defendant a written summary of testimony the state
intends to use under Rule 702, 703, and 705 of the Rules of Evidence during its case in chief at
trial. The summary must describe the witnesses’ opinions, the bases and reasons therefor, and the
witnesses’ qualifications.”). Petitioner further argues that SANE Smith’s proposed testimony
should have been subject to analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). Relying on two journal articles,
3 petitioner contends that SANE Smith’s opinion
was erroneous and that it does not satisfy Daubert because the authors of the article state that
physical injury alone cannot indicate whether sexual contact was consensual. Finally, petitioner
admits that his trial counsel did not object to the State’s alleged failure to disclose SANE Smith’s
findings or to her testimony regarding those findings at trial.
Because petitioner did not object to SANE Smith’s testimony, that testimony is subject to
a plain error analysis. To prove plain error, the proponent must show “there must be (1) an error;
(2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity,
or public reputation of the judicial proceedings.” Syl. Pt. 7, in part, State v. Miller, 194 W. Va. 3,
459 S.E.2d 114 (1995). “[T]he plain error doctrine is reserved for only the most flagrant errors.”
State ex rel. Games-Neely v. Yoder, 237 W. Va. 301, 310, 787 S.E.2d 572, 581 (2016).
Petitioner fails to show plain error regarding SANE Smith’s testimony because he was
clearly notified by the State that SANE Smith would testify at trial as a fact witness and, possibly,
as an expert witness to the examinations she performed on the victim and to the findings in her
report previously provided as discovery. Specifically, the record on appeal shows that on February
13, 2020, the State filed a “DESIGNATION OF EXPERT WITNESS” notifying petitioner of the
following:
[T]he State . . . pursuant to W.Va.R.Cr. P. 16(a)(1)(E) and T.C.R. 32.03(a)(11) . .
. gives notice that [SANE] Carrie Smith, a previously disclosed witness for the
State, may also be called as an expert witness during the trial in this case.
Ms. Smith will testify as a fact witness and may testify as an expert in the field of
sexual assault nurse examination. Ms. Smith is a registered nurse working as a
sexual assault nurse examiner at the Berkeley Medical Center, and will testify to
the examinations she performed on the victim and the findings of her report
previously provided as discovery. A copy of her CV will be provided.
3 See Sung Hoon Song and John R. Fernandes, Comparison of Injury Patterns in
Consensual and Nonconsensual Sex: Is It Possible to Determine if Consent was Given?, Acad.
Forensic Pathology, 2017 Dec. (7)(4): 629-631; Sarah Anderson, Genital Findings in Women after
Consensual and Nonconsensual Intercourse, Journal of Forensic Nursing 2006, Summer;
(2)(2)(59-65).
12
Petitioner does not argue that he did not receive the “DESIGNATION OF EXPERT WITNESS”
regarding SANE Smith, “her report previously provided as discovery,” or her CV. The “SANE
Report” was also listed on the “STATE’S EXHIBIT LIST.” Nor does petitioner contend that the
State precluded him from deposing SANE Smith prior to trial.
Petitioner also arguesthat SANE Smith’s testimony was erroneous because “[t]he scientific
consensus is that physical injury alone cannot indicate whether or not sexual interaction was
consensual.” “In criminal cases, plain error is error which is so conspicuous that the trial judge and
prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in
directing the error.” State v. Marple, 197 W. Va. 47, 52, 475 S.E.2d 47, 52 (1996). Petitioner’s
claim – that SANE Smith’s conclusions were so wrong that they was inadmissible – is not within
the court’s knowledge given that judges are not medical experts. Moreover, SANE Smith admitted
at petitioner’s trial that physical injury could occur during consensual sex. Thus, in the absence of
evidence in the record showing that Ms. Smith’s testimony was unreliably inadmissible, we find
this assignment of error fails to satisfy the plain error standard.
In petitioner’s third assignment of error, he argues that the circuit court impermissibly
coerced the jury to reach a verdict by the totality of its actions and statements.
Whether a trial court’s instructions constitute improper coercion of a verdict
necessarily depends upon the facts and circumstances of the particular case and
cannot be determined by any general or definite rule. Janssen v. Carolina Lumber
Co., 137 W.Va. 561, 73 S.E.2d 12 (1952). It is generally held that when a jury is
unable to agree on a verdict, it is within the trial court’s discretion to urge an earnest
effort to agree, so long as the jurors are free to act without any form of coercion by
the trial court. 89 C.J.S. Trial s 481(a) (1955); 76 Am.Jur.2d Trial s 1054 (1975).
The trial court must carefully instruct the jurors not to give up their conscientious
convictions merely for the sake of achieving a verdict, and must scrupulously avoid
expressing any opinion as to how the case should be decided. The trial court
decision to so instruct the jury must neither encourage disagreement nor coerce
agreement, State v. Taft, 144 W.Va. 704, 110 S.E.2d 727 (1959), but should foster
the jury’s fair and open-minded debate.
State v. Hobbs, 168 W. Va. 13, 37, 282 S.E.2d 258, 272 (1981).
In support of this assignment of error, petitioner points to the following: On the first day
of trial, a Thursday, the trial court kept the jury until 6:00 p.m. The next day, a Friday, the jury
began deliberating around 3:00 p.m. and had not reached a verdict by 5:00 p.m. The court had the
jurors eat dinner in the jury room while they worked. By 9:00 p.m. they still had no verdict. At
that point, even though one of the jurors wanted to go home, the court asked the jurors to work one
more hour. The jurors left at 10:00 p.m. but returned the next day at 1:00 p.m. and deliberated until
5:00 p.m. At that time, they were deadlocked on Counts 1, 2, and 3. However, an hour after the
court gave its Allen instruction, the jurors reached a split verdict: guilty on Counts One and Two
and acquittals on Counts Three and Four. Petitioner argues that the trial court coerced jurors into
reaching that verdict given that they were deadlocked on three counts just an hour before the Allen
charge was read. Petitioner admits that he did not object to the reading of the Allen charge or the
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manner in which the circuit court managed the timing of the jurors’ deliberations. Therefore, he
argues, if the plain error doctrine applies, it is satisfied in this case because the trial court coerced
a verdict from a tired jury.
As we noted above, to prove plain error, the proponent must show “there must be (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Miller, 194 W. Va. at 7, 459 S.E.2d at
118, Syl. Pt. 7, in part. “[T]he issue of whether a trial court improperly coerced a verdict
‘necessarily depends upon the facts and circumstances of the particular case and cannot be
determined by any general or definite rule.’” State v. Pannell, 225 W. Va. 743, 748, 696 S.E.2d
45, 50 (2010) (quoting Syl. Pt. 2, State v. Spence, 173 W.Va. 184, 313 S.E.2d 461 (1984)). “To
safeguard the integrity of its proceedings and to insure the proper administration of justice, a circuit
court has inherent authority to conduct and control matters before it in a fair and orderly fashion.”
Syl. Pt. 2, State v. Fields, 225 W. Va. 753, 696 S.E.2d 269 (2010). “Our review of the trial court’s
manner of conducting the trial is for an abuse of discretion[.]” State v. Davis, 232 W. Va. 398, 414,
752 S.E.2d 429, 445 (2013).
Petitioner fails to show that the trial court abused its discretion or plainly erred in
conducting his trial. When the court suggested that the jury deliberate for another hour on Friday
night, it asked petitioner’s counsel if he had any objection. Petitioner’s counsel responded, “No,
no, we’re good, we’re good, Your Honor.” Thus, petitioner’s complaints in this regard were
knowingly and intentionally relinquished or abandoned. See Miller, 194 W. Va. at 7, 459 S.E.2d
at 118, Syl. Pt. 8, in part. “[W]aiver necessarily precludes salvage by plain error review.” State v.
Knuckles, 196 W. Va. 416, 421, 473 S.E.2d 131, 136 (1996). “In other words, ‘when a right is
waived, it is not reviewable even for plain error.’” State v. Myers, 204 W. Va. 449, 460, 513 S.E.2d
676, 687 (1998) (quoting Syl. Pt. 6, State v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996)).
As for the jury’s Saturday deliberations, the record shows no complaints from either petitioner or
the jurors. Moreover, the court never asked the jury to reach a verdict within a specific time period
or to reach a verdict at all. Instead, the court was solicitous of the jurors and their concerns. Finally,
“[t]here is no suggestion that the trial judge intimated impatience or displeasure with the jury by
his instruction, facial expression, or tone of voice.” Blango v. United States, 335 A.2d 230, 234
(D.C. 1975). Accordingly, we find no error.
In petitioner’s fourth assignment of error, he argues that (1) he was prejudiced when State
witnesses made unsolicited comments that petitioner sold or was in possession of marijuana, and
(2) the trial court erred in failing to grant a mistrial due to those unsolicited comments.
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).
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Pretrial, petitioner filed a motion in limine to exclude any evidence of his criminal history
and his bragging about being a marijuana dealer in California. The State agreed not to offer any
evidence of petitioner’s purported drug dealing. Thus, the court did not hold a hearing under State
v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), on that issue. Thereafter, at trial, petitioner’s
counsel asked about M.S.’s marijuana use at the Halloween party given that her state of mind and
level of intoxication was an issue at trial.
Petitioner argues that under McGinnis, the marijuana evidence would have been
inadmissible because selling marijuana was not relevant to the sexual assault charges and was not
intrinsic evidence of sexual assault. Petitioner contends that he suffered extreme prejudice from
the admission of the marijuana testimony because selling marijuana is a felony offense in West
Virginia and in the United States. Thus, petitioner argues that the marijuana testimony implicated
that he had committed a felony. Finally, petitioner argues that his trial counsel did not have the
opportunity to voir dire the jurors about their feelings regarding drugs, marijuana, and addiction
to petitioner’s detriment.
The trial court did not abuse its discretion in denying a mistrial regarding the marijuanarelated testimony. “[R]ulings on the admissibility of evidence are largely within a trial court’s
sound discretion and should not be disturbed unless there has been an abuse of discretion.” State
v. Williams, 198 W. Va. 274, 279, 480 S.E.2d 162, 167 (1996). “The decision to declare a mistrial,
discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion
of the trial court.” Syl. Pt. 8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989). “An appellate
court should find an abuse of discretion only when the trial court has acted arbitrarily or
irrationally.” State v. Beard, 194 W. Va. 740, 748, 461 S.E.2d 486, 494 (1995). “[B]ecause
mistrials are strong medicine . . . , it is only rarely—and in extremely compelling circumstances—
that an appellate panel, informed by a cold record, will venture to reverse a trial judge’s on-thespot decision that the interests of justice do not require aborting an ongoing trial.” United States v.
Pierro, 32 F.3d 611, 617 (1st Cir. 1994).
As noted above, on cross-examination, Thomas stated there was marijuana at the party and
that M.S. was using it. At a sidebar, the State argued that petitioner’s counsel had opened the door
to Rule 404(b) evidence regarding who supplied the marijuana for the party. The court agreed. On
redirect, Thomas said he did not remember who brought the marijuana to the party. Thereafter,
Michael testified that M.S. brought the marijuana to the party. Following Michael’s testimony, the
trial court precluded any additional testimony regarding the marijuana. Petitioner’s counsel said
he was satisfied with that ruling. M.S. then testified that she went to petitioner’s house the day
before the party and bought “weed” from him. Petitioner moved for a mistrial claiming prejudice.
The court denied that motion because (1) the jury had already heard about the marijuana, (2)
marijuana is “commonly accepted” and legal in several states, and (3) the comment was not
prejudicial to petitioner or unfairly advantageous to the State.
Because petitioner’s counsel opened that door to the marijuana-related testimony, the
evidence became admissible without a McGinnis hearing. Moreover, in the order denying
petitioner’s post-trial motions, the circuit court found that the evidence petitioner sold marijuana
to M.S. was intrinsic “[a]s the charges contained allegations of sexual assault of an inebriated
15
victim, [petitioner] providing marijuana is intrinsic and therefore not subject [to] analysis under
Rule 404(b).” “[E]vidence which is ‘intrinsic’ to the indicted charge is not governed by Rule
404(b).” State v. Harris, 230 W. Va. 717, 722, 742 S.E.2d 133, 138 (2013). Accordingly, because
(1) the trial court properly concluded that the evidence of petitioner’s sale of marijuana was not
unduly prejudicial, and (2) limited the evidence regarding marijuana, we find that it did not err in
denying petitioner’s motion for a mistrial regarding the marijuana-related testimony.
In petitioner’s fifth and final assignment of error, he argues that the evidence at trial was
insufficient as a matter of law to support his two convictions for second-degree sexual assault
because reasonable minds could not have concluded that petitioner was guilty on those counts.
A criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
an appellate court. Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt. . . .
Syl. Pt. 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
“When considering sufficiency-of-evidence claims, this Court’s review is highly
deferential to the jury’s verdict.” State v. Thompson, 240 W. Va. 406, 414, 813 S.E.2d 59, 67
(2018). A petitioner “must prove there is no evidence from which the jury could find guilt beyond
a reasonable doubt.” State v. Zuccaro, 239 W. Va. 128, 145, 799 S.E.2d 559, 576 (2017) (emphasis
in the original).
Petitioner does not claim that the State failed to prove any of the elements of the crimes for
which he was convicted. Instead, he assails M.S.’s credibility. In invoking the inherent credibility
standard, petitioner faces a difficult hurdle as “the bar has been set extremely high for declaring
testimony inherently incredible.” State v. Benny W., 242 W. Va. 618, 627, 837 S.E.2d 679, 688
(2019). “[T]estimony should be found inherently incredible ‘only when the testimony defies
physical laws.’ State v. McPherson, 179 W.Va. 612, 617, 371 S.E.2d 333, 338 (W.Va. 1988).”
State v. Kenneth M., No. 12-0233, 2013 WL 2157826, at *2 (W. Va. May 17, 2013) (memorandum
decision). Here, the jury assessed M.S.’s testimony and clearly found it to be credible regarding
Counts 1 and 2 of petitioner’s indictment and not credible regarding Courts 3 and 4.
Finally petitioner argues that M.S.’s inebriation at the party made her testimony regarding
petitioner unreliable. Again, credibility determinations are made by the jury and not by a reviewing
court. “[T]his Court has long held that credibility determinations are made by the jury.” State v.
Smith, 225 W. Va. 706, 713, 696 S.E.2d 8, 15 (2010). Moreover, a witness’s intoxication does not
provide grounds for an appellate court to reject a jury’s findings that the witness was credible. See,
e.g., United States v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir. 1997). Therefore, we find no error.
16

Outcome: Accordingly, for the foregoing reasons, we affirm the circuit court’s March 10, 2021, “Amended Sentencing Order.”

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