Submitted: September 6, 2017
from the Circuit Court of Jefferson County The Honorable
David H. Sanders, Judge Criminal Action No. 15-F-91
F. Eddy, Esq. Director Public Defender Services Scott E.
Johnson, Esq. Public Defender Services Appellate Advocacy
Division Charleston, West Virginia Counsel for the Petitioner
L. Hogan, Esq. Deputy Attorney General Charleston, West
Brandon C. H. Sims, Esq. Assistant Prosecutor Jefferson
County Prosecuting Attorney Charles Town, West Virginia
Counsel for the Respondent
BY THE COURT
"An objection to a circuit court ruling that admits
evidence must be timely made and must state the specific
ground of the objection, if the specific ground is not
apparent from the context." Syl. Pt. 3, Perrine v.
E.I. du Pont de Nemours & Co., 225 W.Va. 482, 694
S.E.2d 815 (2010).
"To preserve an issue for appellate review, a party must
articulate it with such sufficient distinctiveness to alert a
circuit court to the nature of the claimed defect." Syl.
Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va.
208, 470 S.E.2d 162 (1996).
"Failure to make timely and proper objection to remarks
of counsel made in the presence of the jury, during the trial
of a case, constitutes a waiver of the right to raise the
question thereafter either in the trial court or in the
appellate court." Syl. Pt. 6, Yuncke v. Welker,
128 W.Va. 299, 36 S.E.2d 410 (1945).
"It is presumed a defendant is protected from undue
prejudice if the following requirements are met: (1) the
prosecution offered the evidence for a proper purpose; (2)
the evidence was relevant; (3) the trial court made an
on-the-record determination under Rule 403 of the West
Virginia Rules of Evidence that the probative value of the
evidence is not substantially outweighed by its potential for
unfair prejudice; and (4) the trial court gave a limiting
instruction." Syl. Pt. 3, State v. LaRock, 196
W.Va. 294, 470 S.E.2d 613 (1996).
Defendant, Michael Blickenstaff, was indicted for kidnapping
his ex-girlfriend, Nicole M., after he allegedly drove her
around for five hours at knifepoint. Nicole M. did not
physically resist the kidnapping.
State argued at trial that Nicole M. did not physically
resist because she feared Mr. Blickenstaff after he subjected
her to domestic violence during their previous relationship.
It presented expert witness testimony that domestic violence
victims are often more compliant with their abusers out of
fear. The State also introduced into evidence Mr.
Blickenstaff's previous conviction for second-degree
domestic assault against Nicole M. At the end of his trial,
Mr. Blickenstaff was convicted of kidnapping and sentenced to
life without parole.
Blickenstaff argues that the trial court abused its
discretion in the following two ways: (1) it allowed the
State's expert witness to offer improper testimony; and
(2) it caused undue prejudice to his defense by admitting his
previous conviction into evidence. We find that Mr.
Blickenstaff failed to timely and specifically object to the
expert witness's testimony, and therefore, he waived this
issue for appellate review. In addition, we find no abuse of
discretion in the circuit court's admission of his
previous conviction. Therefore, we affirm Mr.
Blickenstaff's conviction and sentencing.
AND PROCEDURAL BACKGROUND
morning of August 25, 2014, Nicole M. was driving her
four-year old daughter, E.M.,  to daycare in their hometown of
Smithburg, Maryland. Mr. Blickenstaff, who was in town to
visit E.M. (also his daughter), rode in the car's
front-passenger seat. The car needed gas, and Nicole M.
pulled into the gas station where the alleged kidnapping
M. testified that after the car stopped, Mr. Blickenstaff
flashed his knife at her. He said, "not to do anything
stupid, that it was going to be the worst day of [her] life,
to get into the passenger seat, and he was taking over from
here." Nicole M. did what Mr. Blickenstaff told her to
do without putting up any physical resistance or calling for
help. E.M. was still in the car.
Blickenstaff drove Nicole M. and E.M. around Maryland, West
Virginia, and Virginia for five hours. When they crossed into
West Virginia, Mr. Blickenstaff threw Nicole M.'s cell
phone out the car window and threatened to stab her. He also
told her he was going to carve his initials into her
forehead, and when she tearfully stated that she did not care
what kind of lettering he used, he responded: "I like it
that you left it to the artist." Fortunately, Mr.
Blickenstaff did not carve his initials into Nicole M.'s
forehead. However, before leaving West Virginia, he punched
her in the mouth so forcefully that her tooth broke through
her upper lip, and he cut her throat with his knife, leaving
visible marks. Finally, they left West Virginia for Maryland.
He did not physically harm E.M., who was in the car during
Blickenstaff, Nicole M., and E.M. arrived at Nicole M.'s
apartment that afternoon. Nicole M. reported her kidnapping
the following day when her boss, who saw the bruises from Mr.
Blickenstaff's punch and the knife-mark on her throat,
persuaded her to do so. By the time Nicole M. reported her
kidnapping, Mr. Blickenstaff had absconded from her apartment
with E.M. The authorities conducted a search and found E.M.
with Mr. Blickenstaff at a Pennsylvania motel. The
authorities immediately returned her to Nicole M.
Blickenstaff was tried and convicted in Maryland on one count
of false imprisonment, and in West Virginia, he stood trial
on one count of kidnapping. In his kidnapping trial, the
State addressed Nicole M.'s failure to physically resist
by presenting expert testimony from Katherine Spriggs, a
program manager from Shenandoah Women's Center who works
full-time with domestic violence victims. Ms. Spriggs
testified that victims of domestic violence are often more
compliant with their abusers out of fear, not consent. The
State also introduced into evidence Mr. Blickenstaff's
previous conviction for second-degree domestic assault
against Nicole M.
his trial, Mr. Blickenstaff filed a motion to exclude Ms.
Spriggs's testimony. He claimed that her testimony as a
whole would be irrelevant and unduly prejudicial, but he
provided no explanation as to why. In a separate motion, he
also objected to the introduction of his previous conviction
into evidence. After a pretrial hearing on his motions, the
trial court overruled Mr. Blickenstaff s objections. Mr.
Blickenstaff did not object to Ms. Spriggs's testimony at
end of his trial, Mr. Blickenstaff was convicted on his
kidnapping charge and sentenced to life without parole. He