Marshall County 16-F-133
Jeffery Scott Ward, II, by counsel Jason D. Parmer, appeals
the Circuit Court of Marshall County's March 30, 2017,
sentencing order. Respondent State of West Virginia, by
counsel Robert L. Hogan, filed a response. On appeal,
petitioner contends that the circuit court committed plain
error at trial in using two different definitions of
"battery" in its jury instructions and in allowing
the State to cross-examine a witness regarding her sexual
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.
was indicted for one count of burglary, one count of battery,
and one count of brandishing a deadly weapon on February 7,
2017. Approximately one month later, on March 6, 2017,
petitioner proceeded to trial on these charges. At trial,
Bryan McClelland testified for the State. Mr. McClelland
testified that he was in a prior relationship with Danielle
Ward from May of 2010 until January of 2016, and they had one
child during this time. Mr. McClelland and Ms. Ward broke up
for a short period during the summer of 2015 while Mr.
McClelland attended a drug and alcohol rehabilitation
facility, and Ms. Ward began a relationship with petitioner.
Upon Mr. McClelland's completion of rehabilitation,
however, he and Ms. Ward resumed their relationship from
approximately the middle of August of 2015 until January of
2016. Ms. Ward informed Mr. McClelland that she was pregnant
and that the child was his. Following their break-up in
January of 2016, Ms. Ward informed Mr. McClelland that the
child she was carrying did not belong to him and that it, in
fact, belonged to petitioner. Mr. McClelland, therefore,
initiated a lawsuit to establish paternity.
McClelland further testified that, at 1:07 a.m. on September
12, 2016, he was asleep and awakened by his dog jumping off
of his bed. Mr. McClelland turned his head and saw a tall
figure standing beside his bed, and this person started
hitting him on his head. Once Mr. McClelland gained control
of the situation and eventually pinned his attacker to the
bed, he realized that it was petitioner who was attacking
him. Mr. McClelland testified that petitioner had a gun and a
large flat-head screwdriver in his possession. Mr. McClelland
also stated that he sustained cuts on his hairline, a broken
nose, "big welts" on the side of his face, and a
swollen jaw. Mr. McClelland said that he "got cut every
time [he] was hit, " but he could not testify with any
certainty as to whether petitioner struck him with anything
other than his fist. The jury was shown pictures of Mr.
McClelland's cut, bloodied, and swollen face.
McClelland further testified that once he gained control,
petitioner began stating that he wanted to talk to Mr.
McClelland. Mr. McClelland told petitioner, "Drop the
screwdriver and I'm going to let you up real slow."
Petitioner started to get off the bed, but then quickly
reached behind him and pulled a pistol on Mr. McClelland.
Petitioner informed Mr. McClelland, "This ends tonight[,
]" which Mr. McClelland presumed was a reference to the
paternity case. While keeping the gun pointed at Mr.
McClelland, petitioner instructed him to wrap a belt around
his arm and inject a syringe containing Vicodin, Xanax, and
heroin into his arm, which petitioner had with him.
Petitioner also informed Mr. McClelland that he planned to
anonymously report an overdose.
McClelland refused to inject the drugs and told petitioner
that he would have to shoot him. For a moment, as Mr.
McClelland was trying to think of a way out of the situation,
he thought petitioner was going to shoot him. Mr. McClelland
testified that he stated to petitioner, "If this is
about the paternity case, just write something up and
I'll sign it that I'm dropping the paternity
case." Petitioner then handwrote an agreement for Mr.
McClelland's signature, which stated that Mr. McClelland
would drop the paternity suit. After Mr. McClelland signed
the document, petitioner asked Mr. McClelland where he kept
his trash bags. Mr. McClelland answered petitioner's
question, and petitioner proceeded to remove Mr.
McClelland's sheets, pillows, and pillowcases from his
bed, tell Mr. McClelland he was going to file the signed
document with the court, tell Mr. McClelland not to call the
police or petitioner would kill him, and, ultimately, leave
Mr. McClelland's home. Mr. McClelland testified that
petitioner left on foot and did not have a vehicle in his
driveway. Mr. McClelland then called 9-1-1.
testified on his own behalf at trial and offered a contrary
version of events. Petitioner testified that he was scheduled
to be out of town for job training, and he wished to resolve
his differences over the paternity case with Mr. McClelland
prior to leaving town. Therefore, petitioner testified that
he left for Mr. McClelland's home at approximately 11:30
p.m. on September 11, 2017, and arrived there close to
midnight. Petitioner testified that he "beat" on
Mr. McClelland's door and rang his doorbell for ten to
fifteen minutes before Mr. McClelland answered the door and
motioned for petitioner to enter the home. Petitioner
testified that he "stepped into the front entryway, and
that's when I get cold-cocked." Petitioner stated
that, after punching him, Mr. McClelland pulled a shotgun
from an entryway closet. Petitioner testified that he grabbed
the barrel of the gun, spun it around, and punched Mr.
McClelland in the nose. Petitioner further testified that
"[o]ne time I punched him in the nose, but there was a
scuffle after the fact. I know we threw punches at each
other. I can't tell you honestly a bunch landed or not,
but I know we were both swinging at that point."
Eventually, the scuffle ended, and petitioner claims they
walked into the living room and petitioner told Mr.
McClelland, "I'm only here to talk, man. I just want
this to end. I want it to be done. I want it to be over
with." Petitioner detailed that the two men were
"huffing and puffing" and that Mr. McClelland was
"bleeding because, unfortunately, I broke his nose. He
was pretty well covered with blood. I mean, the front of his
T-shirt, it was nice and red." Petitioner testified
that, after talking, Mr. McClelland signed the document
agreeing to end the paternity suit.
Ward also testified on petitioner's behalf at trial. Ms.
Ward testified that she met petitioner during the summer of
2015 and found out she was pregnant around September of 2015.
On cross-examination, the prosecutor asked, "Was that
the only time you admit that you had relations with
[petitioner] prior to dating?" Ms. Ward responded,
"No. We have several times." The State continued,
"But you were still together with [Mr.
McClelland]?" Ms. Ward stated, "No. I broke up with
[Mr. McClelland] before he went to rehab." Without
objection, this line of questioning continued:
Q. When did you have - and that's when you first had
relations with [petitioner]?
A. Yes. It was not as late as August. It was earlier than
that. I would say probably July, maybe June.
. . . .
Q. How many times have you had sexual relations with
[petitioner] prior to rekindling your relationship with [Mr.
A. I didn't count. I mean, maybe five.
. . . .
A. Okay. So you're asking me how many times I had sex
with my husband ...