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State v. Bowman

Supreme Court of West Virginia

November 21, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Michael Bowman, Defendant Below, Petitioner

          Marshall County 15-F-59 and 15-F-60

          MEMORANDUM DECISION

         Petitioner Michael Bowman, by counsel Matthew Brummond, appeals the Circuit Court of Marshall County's July 20, 2017, order sentencing him following his conviction of various sex crimes. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On appeal, petitioner asserts that the circuit court erred in failing to declare a mistrial following the State's dismissal of certain charges midway through trial.

         This 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.

         On November 10, 2015, the Marshall County Grand Jury returned two indictments charging petitioner with committing various sex crimes. The indictment in case number 15-F-59 charged petitioner with four counts of sexual abuse by a parent, guardian, custodian or person in a position of trust; two counts of first-degree sexual abuse; two counts of first-degree sexual assault; and one count of child abuse resulting in bodily injury by a parent, guardian or custodian. These charges identified E.W. as the victim. In a second indictment, case number 15-F-60, where the victim was identified as H.S., petitioner was charged with three counts of first-degree sexual abuse and one count of second-degree sexual assault.

         On June 3, 2016, the circuit court consolidated the two cases for trial, and trial began on May 19, 2017. During trial, one of the investigating officers, Trooper Bryan Gaus, was called to testify. Sensing that Trooper Gaus's testimony was veering toward allegations that occurred in another county, petitioner's counsel objected, and both parties approached the bench to discuss the anticipated testimony. Petitioner's counsel argued that evidence concerning any crimes that took place outside of the county was inadmissible under Rule 404(b) of the West Virginia Rules of Evidence.[1] Specifically, petitioner's counsel sought to limit testimony concerning an act of sexual intercourse alleged between petitioner and E.W. as well as an instance where petitioner placed his penis on E.W.'s hand. The circuit court found that the evidence did not constitute Rule 404(b) evidence, but, instead, was intrinsic to the offenses charged:

Here, these allegations involve the same alleged victim, the same alleged [d]efendant. I went back and looked at the indictments, and it appears to be very close temporally, in the same time period, and essentially the same alleged acts that are part and parcel of the counts of the indictment regarding [E.W.] in this case.

         Accordingly, the court found the evidence admissible as intrinsic, res gestae evidence.

Shortly thereafter, the State informed the court, outside the presence of the jury, that,
[a]fter more contact with all of our witnesses, including the victim, I don't think that the State can go forward in good faith with Counts Two and Four [and Six and Eight] based upon the jurisdictional element. . . . They very well may have happened in Marshall County, but knowing that I cannot - at one point we thought certain witnesses were going to tie that - those incidents into Marshall County with photographs and so forth, and maybe that's true. Maybe I'm being premature here and I should have let the jury decide, but I just think in good faith that - [.]

         The State clarified its intent to dismiss four counts: two sexual abuse by a parent, guardian or custodian charges; one first-degree sexual abuse charge; and one first-degree sexual assault charge. These charges covered two separate incidents. The first incident was alleged to have occurred by petitioner placing his penis between E.W.'s legs and buttocks. The second incident was alleged to have occurred by petitioner placing his penis into E.W.'s vagina.

         Petitioner argued for a mistrial claiming that the jury was tainted by the State's opening statement, which included references to the now dismissed counts. The trial court, however, was not persuaded by petitioner's claims of prejudice. The court stated,

I mean, honestly, that happens all the time in courtrooms across the country. As the trial develops, the State - the evidence doesn't come in as they expect and the case doesn't go as they expect and counts get[] dismissed or the jury just simply finds the [d]efendant not guilty, which has happened right here in this courtroom when the State hasn't met its burden with regard to those counts. They hear about it in opening, but then by the time the trial's over, they haven't heard the evidence to support it. That's just - that's just the way trial works.

         Nonetheless, petitioner's objections continued:

To prevent me from being able to cross-examine these witnesses that you allege this, you went to law enforcement and then it made it up through the channels to prosecution, through the grand jury, through trial, and now you've backed off or you've changed your version to some extent that warranted dismissal, it undermines our entire ...

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