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Charleston, WV - Criminal Defense lawyer represented defendant with a domestic battery and interfering with emergency communications charges.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
By indictment dated January 10, 2020, petitioner was charged in the Circuit Court of
Monongalia County with the following offenses which were allegedly committed on October 30,
2019: (1) domestic battery, third or subsequent offense, against his mother, Diana Matamala, “by
striking and/or shoving her, after he had previously been convicted three [separate] times of
[d]omestic [b]attery or [d]omestic [a]ssault” during 2015 and 2016, pursuant to West Virginia
Code § 61-2-28(d); and (2) interfering with emergency communications “by taking [Diana
Matamala]’s phone during an emergency,” pursuant to West Virginia Code § 61-5-17(n).
On March 20, 2020, the State filed a notice pursuant to Rule 404(b) of the West Virginia
Rules of Evidence providing that it intended to introduce at trial petitioner’s prior bad acts from
March 9, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
2015, 2016, and 2019, which included domestic battery and/or assault against his mother,
interfering with emergency communications, and violations of protective orders. The State alleged
that “the prior bad acts are relevant to show [petitioner]’s motive and intent to commit the alleged
offense[s] against [Diana Matamala], as he has made numerous [prior] threats of violence” that
included “threaten[ing] violence if she called the police.” The State argued that the prior bad acts
could also be admitted at trial because they were necessary to “complete the story” and “illustrate
the context of the offense[s].”
Following a hearing, the circuit court, by order entered on July 27, 2020, found that
petitioner’s prior bad acts were admissible at trial as “the State’s intended 404(b) evidence
illustrates and depicts motive for the crime[s].” The circuit court further found that “the State had
a right to present a ‘complete story’ to the jury” and “[petitioner]’s prior actions serve[d] as an
explanation of the current offense[s].”
At petitioner’s August 27, 2020, trial, the State indicated a willingness to stipulate to
petitioner’s prior convictions for domestic battery and/or assault so that it would not have to
produce proof of such convictions necessary to establish petitioner’s guilt as to count one of the
indictment. Petitioner refused to stipulate to two or more of his prior convictions, stating that while
he understood that the evidence of the prior convictions could be prejudicial, he believed that, “if
these things are explained, . . . it will give a better explanation for what happened this time.”1
Accordingly, the circuit court permitted the State to show that petitioner had previously been
convicted three separate times of domestic assault during 2015 and 2016 through documentary
evidence and the testimony of the clerk of the Magistrate Court of Monongalia County and a
deputy circuit court clerk.
Next, the State presented the testimony of petitioner’s mother. On direct examination,
petitioner’s mother testified as follows: She lived in a mobile home in Granville, West Virginia.
Petitioner was not allowed to live in her home because “he was on drugs” and she “was fearful of
him.” On October 30, 2019, she received a communication from petitioner that he wanted to again
reside with her. Petitioner’s mother testified that she informed petitioner that he could not return
to her home, and “I made it clear I did not want him to come home.” Later that same day, after
petitioner’s mother left work, her neighbor picked her up from the bus stop. Petitioner’s mother
asked the neighbor (who was male) to accompany her inside her residence “because I was worried
that [petitioner] might have got in the back door and be there because he had kept wanting—
insisted on coming home.” Petitioner was inside in his mother’s residence when she and her
neighbor entered her home. Petitioner’s mother allowed the neighbor to leave, but informed
petitioner that “[y]ou’re not supposed to be here.” Petitioner’s mother testified that she “was afraid
to do or say much that would get anything set off, so I just made it clear that he wasn’t supposed
to be there.”
Later that evening, while petitioner’s mother was on the phone with her older son, “for
some reason, [petitioner] got angry.” When petitioner began to yell, petitioner’s mother had her
In refusing to stipulate to two or more of his prior convictions, petitioner acted contrary
to the advice of his trial counsel.
phone and “started to go toward the door.” Petitioner’s mother stated that petitioner “jumped up
and grabbed my phone.” Petitioner informed his mother, “You’re going to call the police. You’re
not going out anywhere. You’re going to stay right here.” Petitioner proceeded to throw his mother
on the floor twice. The first time petitioner threw his mother to the floor, “it hurt.” While
petitioner’s mother was able to get off the floor, standing back up “was hard.” Petitioner told his
mother, “You’re going to call the cops on me again. I’m not going to jail. You’re not getting out
of here.” Thereafter, petitioner threw his mother to the floor the second time. Petitioner’s mother
testified that she landed on the floor “[a]bout the same way.” Petitioner’s mother told him that she
was not going to call the police or run out of the house and that she was unable to call the police
because “[y]ou have my phone.”
Petitioner then threw his mother onto the couch and punched her in the face “two to three
times.” While petitioner’s mother was on the couch, she asked herself whether petitioner was
“going to kill me.” Following the attack on the couch, petitioner grabbed his mother, took her to
the bathroom, turned on the shower, and directed her to get in the shower. Petitioner told his
mother, “Now[,] you know—now you see what it’s like to be in jail and have a cold shower.” After
forcing his mother to take a cold shower, he allowed her to returned to the living room and sit on
the couch. Petitioner subsequently fell asleep on the loveseat. Petitioner’s mother stayed on the
couch and “just prayed.”
The following morning, petitioner’s mother got up when it was time for her to go to work.
She testified that she was barely able to walk due to lower back pain and that she “was able to see
the marks on my face, my lip, [and] my eye.” Petitioner was still asleep on the loveseat. Petitioner’s
mother believed that petitioner probably had not slept for “quite a few days from the drugs.”
Petitioner’s mother retrieved her phone from “close to” petitioner and “slipped out” of her home
“as quietly as I could.” During her direct examination, petitioner’s mother confirmed that petitioner
“didn’t give [me] the phone back” and that, during the previous night’s attack, petitioner told her
that, “[i]f you call the cops on me, I’ll kill you.” She testified that, at the time of petitioner’s threat,
she believed him.
After retrieving her phone, petitioner’s mother did not initially contact the police.
Petitioner’s mother “was afraid if I called them that nothing was going to be done that—and that
it would just make things worse because it had happened before.” Petitioner’s mother attempted
to take the bus to work, but decided that she could not tolerate the ride due to the bus’s movement
and her back pain. At a stop at the bus terminal, petitioner’s mother called a female neighbor to
give her a ride to work. Once at work, petitioner’s mother called her daughter in North Carolina,
who wanted to report petitioner to the police. Petitioner’s mother told her daughter to “[g]o ahead,”
and her daughter called the police. Detective Ronald Kerns of the Granville Police Department
first called petitioner’s mother and then responded to her workplace. Detective Kerns took
photographs of petitioner’s mother’s facial injuries, and she told the detective that her back was
hurting. At the conclusion of her direct examination, petitioner’s mother testified that October 30,
2019, was not the first time petitioner harmed her and threatened her. She confirmed that he had
been previously convicted of domestic assault against her.
During her cross-examination, petitioner’s mother testified that she allowed her male
neighbor to leave her residence in the evening of October 30, 2019, because, while petitioner was
in the house, he “was seemingly calm.” However, petitioner’s mother believed that petitioner was
on drugs “[b]ecause he had been on meth before, and I knew . . . the way he acted.” Petitioner’s
mother further testified that she found illegal drugs “in the trailer with him before.” With regard
to her back, petitioner’s mother stated that she did not notice bruising on her back until after she
spoke with Detective Kerns, but informed him that her back was hurting “at the time he
interviewed [me].” Petitioner’s mother confirmed that petitioner “knew for a fact he was not
supposed to be at my residence.”
Petitioner’s counsel also asked his mother to explain why she did not contact the police
when she found petitioner in her home during the evening of October 30, 2019, and why she did
not contact the police herself the following morning. Regarding petitioner’s presence in her home
on October 30, 2019, petitioner’s mother replied that “I had called a couple of weeks before, and
it didn’t change a thing” and that, “when that happens and nothing is done, I become more of a
target.” Regarding her daughter’s call to the police the following morning, petitioner’s mother
indicated that, because the police informed her that “there was nothing they could do about it”
when she contacted them about petitioner pushing her approximately two weeks prior to the
October 30, 2019, incident, she “figured” that, if she reported petitioner again, “it’s going to make
it worse for me,” and he would “blame me more.”
During her redirect examination, petitioner’s mother testified that calling 911 and obtaining
protective orders against petitioner made her “a bigger target” and resulted in no change in
petitioner’s behavior towards her. Consequently, “every day,” petitioner’s mother had “to make a
decision whether or not to call for help.”
The State’s last witness was Detective Kerns. Detective Kerns testified that, when he
arrived at petitioner’s mother workplace, she was clearly upset, and he was “able to observe
obvious injuries to her face.” The photographs taken by Detective Kerns of petitioner’s mother’s
facial injuries were admitted and published to the jury.2 Detective Kerns stated that her injuries
were “consistent with the statement provided by [her],” and he confirmed that petitioner’s mother
told him her back was hurting. During his cross-examination, Detective Kerns testified that
petitioner’s mother did not mention any bruising of her back during his interview of her and that
“I would not have taken those photographs anyway because she would have had to remove some
clothing.” Detective Kerns stated that it was possible that petitioner’s mother’s injuries were not
caused by petitioner. During his redirect examination, the State asked Detective Kerns, “[b]ased
on the investigation, did you see any other cause of those injuries that was within reason?”
Detective Kerns confirmed that “[petitioner’s mother’s] injuries were consistent with what she told
Petitioner declined to testify on his own behalf and presented no other evidence. The jury
ultimately found petitioner guilty of domestic battery, third or subsequent offense, and interfering
with emergency communications. By sentencing order entered on October 29, 2020, the circuit
court imposed a term of one to five years of incarceration for domestic battery, third or subsequent
Petitioner did not include the photographs of his mother’s facial injuries in his appendix.
offense, and a term of one year of incarceration for interfering with emergency communications.
The circuit court ran petitioner’s sentences consecutive to each other.
Petitioner now appeals the circuit court’s October 29, 2020, sentencing order. “On an
appeal to this Court[,] the appellant bears the burden of showing that there was error in the
proceedings below resulting in the judgment of which he complains, all presumptions being in
favor of the correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 1, White
v. Haines, 215 W. Va. 698, 601 S.E.2d 18 (2004) (quoting Syl. Pt. 2, Perdue v. Coiner, 156 W.
Va. 467, 194 S.E.2d 657 (1973)).
On appeal, petitioner raises two assignments of error. Petitioner initially argues that the
circuit court erred in admitting, pursuant to Rule 404(b),3 his prior bad acts from 2015, 2016, and
2019, which include domestic battery and/or assault against his mother, interfering with
emergency communications, and violations of protective orders. Specifically, petitioner argues
that such evidence was unfairly prejudicial. The State counters that, while balancing the relevance
of extrinsic evidence against its prejudicial effect under Rule 403 of the Rules of Evidence is a part
of a Rule 404(b) analysis,4 such analysis is not necessary in this case because the prior bad acts
Rule 404(b) of the Rules of Evidence provides, in pertinent part:
(b) Crimes, wrongs, or other acts.
(1) Prohibited uses.—Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted uses; notice required.—This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. Any party seeking the admission
of evidence pursuant to this subsection must:
(A) provide reasonable notice of the general nature and the specific and precise
purpose for which the evidence is being offered by the party at trial; . . . .
Rule 403 of the Rules of Evidence provides, in pertinent part, that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice[.]” In Syllabus Point 2 of State v. McGinnis, 193 W. Va. 147, 455
S.E.2d 516 (1994), we held that:
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
(continued . . .)
were admissible as intrinsic evidence. We agree with the State.
“The action of a trial court in admitting or excluding evidence in the exercise of its
discretion will not be disturbed by the appellate court unless it appears that such action amounts
to an abuse of discretion.” Syl. Pt. 2, State v. Harris, 230 W. Va. 717, 742 S.E.2d 133 (2013)
(quoting Sy. Pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other
grounds, State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994)).
In granting the State’s motion for the admission of petitioner’s prior bad acts, the circuit
court ruled, in pertinent part, that the jury was entitled to hear the complete story of the interactions
between petitioner and his mother as an explanation of the instant offenses. This Court in Harris
One of the accepted bases for the admissibility of evidence of other crimes arises
when such evidence “furnishes part of the context of the crime” or is necessary to
a “full presentation” of the case, or is so intimately connected with and explanatory
of the crime charged against the defendant and is so much a part of the setting of
the case and its “environment” that its proof is appropriate in order “to complete
the story of the crime on trial by proving its immediate context or the ‘res gestae’”
or the “uncharged offense is ‘so linked together in point of time and circumstances
with the crime charged that one cannot be fully shown without proving the other .
. .’ (and is thus) part of the res gestae of the crime charged.” And where evidence
is admissible to provide this “full presentation” of the offense, “(t)here is no reason
to fragmentize the event under inquiry” by suppressing parts of the “res gestae.” As
the Court said in United States v. Roberts, 548 F.2d 665, 667 (6th Cir. 1977), . . .
“(t)he jury is entitled to know the ‘setting’ of a case. It cannot be expected to make
its decision in a void without knowledge of the time, place and circumstances of
the acts which form the basis of the charge.”
230 W. Va. at 721-22, 742 S.E.2d at 137-38 (quoting U.S. v. Masters, 622 F.2d 83, 86 (4th Cir.
1980) (Internal citations omitted.); State v. LaRock, 196 W. Va. 294, 312 n.29, 470 S.E.2d 613,
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.
631 n.29 (1996) (same).
Petitioner was charged with domestic battery, third or subsequent offense, and count one
of the indictment listed his prior convictions for domestic assault from 2015 and 2016. Count two
specifically alleged that petitioner interfered with his mother’s emergency communications by
taking her phone away. During her testimony, petitioner’s mother explained (1) why she did not
contact the police when she found petitioner in her home during the evening of October 30, 2019,
before petitioner took her phone; and (2) why she did not contact the police herself the following
morning after she had retrieved her phone based upon her prior interactions with petitioner. For
example, during her cross-examination, petitioner’s mother explained that, she called the police
following an earlier incident where petitioner pushed her and they did nothing, which made
petitioner more of a threat to her.
“Rule 403 was not intended to prohibit a prosecutor from presenting a full picture of a
crime especially where the prior acts have relevance independent of simply proving the factors
listed in Rule 404(b).” LaRock, 196 W. Va. at 313, 470 S.E.2d at 632. See also U.S. v. McNair,
605 F.3d 1152, 1206 (11th Cir. 2010) (“Because the other acts evidence was inextricably
intertwined with the charged crimes, it was not excludable under Rule 403.”). Furthermore, based
upon on our review of the trial transcript, we agree with the State that it did not unduly dwell on
petitioner’s prior bad acts in a case where it had to prove his previous convictions for domestic
assault due to petitioner’s refusal to stipulate to them. Therefore, we conclude that evidence of
petitioner’s prior bad acts constituted intrinsic evidence, inextricably intertwined with the acts
charged in the indictment, and that the circuit court did not abuse its discretion in admitting such
As for petitioner’s second assignment of error, he generally argues that there was
insufficient evidence to support his conviction for domestic battery, third or subsequent offense,
pursuant to West Virginia Code § 61-2-28(d),5 and his conviction for interfering with emergency
communications pursuant to West Virginia Code § 61-5-17(n).6 We disagree as we have held that:
“Domestic battery” occurs where “[a]ny person . . . unlawfully and intentionally makes
physical contact of an insulting or provoking nature with his or her family or household member,
or unlawfully and intentionally causes physical harm to his or her family or household member.”
W. Va. Code § 61-2-28(a). West Virginia Code § 61-2-28(d) provides, in pertinent part:
Any person who has been convicted of a third or subsequent violation of the
provisions of [West Virginia Code § 61-2-28(a)] or [West Virginia Code § 61-2-
28(b), relating to the lesser included offense of domestic assault] . . . , where the
victim was . . . a parent . . . is guilty of a felony if the offense occurs within ten
years of a prior conviction of any of these offenses and, upon conviction thereof,
shall be confined in a state correctional facility not less than one nor more than five
years or fined not more than $2,500, or both fined and confined.
West Virginia Code § 61-5-17(n) provides:
(continued . . .)
[t]he function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime proved beyond a reasonable doubt.
. . . .
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. Pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
Furthermore, “[a]n appellate court may not decide the credibility of witnesses or weigh
(1) No person, with the intent to purposefully deprive another person of emergency
services, may interfere with or prevent another person from making an emergency
communication, which a reasonable person would consider necessary under the
circumstances, to law-enforcement, fire, or emergency medical services personnel.
(2) For the purpose of this subsection, the term “interfere with or prevent” includes,
but is not limited to, seizing, concealing, obstructing access to or disabling or
disconnecting a telephone, telephone line, or equipment or other communication
(3) For the purpose of this subsection, the term “emergency communication” means
communication to transmit warnings or other information pertaining to a crime,
fire, accident, power outage, disaster, or risk of injury or damage to a person or
(4) A person who violates this subsection is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a period of not less than one day nor
more than one year or shall be fined not less than $250 nor more than $2,000, or
both fined and confined.
evidence as that is the exclusive function and task of the trier of fact” and, “[o]nce the jury has
spoken, this Court may not review the credibility of the witnesses.” Id. at 669 n.9, 461 S.E.2d
at175 n.9. Based upon our review of the record, we find that the testimony and documentary
evidence presented at trial, was more than sufficient for a rational jury to find petitioner guilty of
domestic battery, third or subsequent offense, and interfering with emergency communications.
Outcome: For the foregoing reasons, we affirm the circuit court’s October 29, 2020, sentencing order.