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State v. Blickenstaff

Supreme Court of West Virginia

September 13, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
MICHAEL L. BLICKENSTAFF, Defendant Below, Petitioner

          Submitted: September 6, 2017

         Appeal from the Circuit Court of Jefferson County The Honorable David H. Sanders, Judge Criminal Action No. 15-F-91

          Dana F. Eddy, Esq. Director Public Defender Services Scott E. Johnson, Esq. Public Defender Services Appellate Advocacy Division Charleston, West Virginia Counsel for the Petitioner

          Robert L. Hogan, Esq. Deputy Attorney General Charleston, West Virginia

          Brandon C. H. Sims, Esq. Assistant Prosecutor Jefferson County Prosecuting Attorney Charles Town, West Virginia Counsel for the Respondent

         SYLLABUS BY THE COURT

         1. "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).

         2. "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).

         3. "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).

         4. "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).

          KETCHUM, JUSTICE

         The 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.

         The 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.

         Mr. 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.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         On the morning of August 25, 2014, Nicole M. was driving her four-year old daughter, E.M., [1] 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 began.

         Nicole 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.

         Mr. 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 this time.

         Mr. 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.

         Mr. 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.

         Before 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 trial.

         At the end of his trial, Mr. Blickenstaff was convicted on his kidnapping charge and sentenced to life without parole. He ...


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