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State v. Sites

Supreme Court of West Virginia

February 7, 2019

STATE OF WEST VIRGINIA, Respondent
v.
MICHAEL S. SITES, Petitioner

          Submitted: January 29, 2019

          Appeal from the Circuit Court of Grant County Honorable Lynn Nelson, Judge Criminal Action No. 15-F-19

          Nicholas T. James, Esq. Daniel R. James, Esq. The James Law Firm Keyser, West Virginia Attorneys for Petitioner

          Patrick Morrisey, Esq. Attorney General Thomas T. Lampman, Esq. Assistant Attorney General Gordon L. Mowen, II, Esq. Assistant Attorney General Attorneys for Respondent

         SYLLABUS BY THE COURT

         1. "'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.' Syllabus point 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996)." Syllabus point 10, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774 (2003).

         2. "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 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." Syllabus point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516, (1994).

         3. "The decision to grant a motion for severance pursuant to W.Va. R. Crim. P. 14(a) is a matter within the sound discretion of the trial court." Syllabus point 3, in part, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988).

         4. "In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, in part, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

         5. Under Rule 43(a) of the West Virginia Rules of Criminal Procedure, a defendant has a right to be present with counsel and provided with an opportunity to be heard, prior to a trial court responding to a jury question during its deliberations. This right may be waived and a violation is subject to harmless error analysis.

         6. "The 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." Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

          OPINION

          HUTCHISON, JUSTICE.

         This appeal was brought by Michael S. Sites (hereinafter "Petitioner") from the April 11, 2016, order of the Circuit Court of Grant County sentencing him for his convictions of first-degree murder, holding a hostage to defile, and two counts of possession of a controlled substance with intent to deliver.[1] In this appeal Petitioner has assigned error as follows: admission of toxicology evidence, admission of Rule 404(b) evidence, joinder of Count II with other offenses, failure to sever offenses occurring on different dates, improperly responding to jury questions, admission of previously excluded evidence, and insufficient evidence to support two convictions. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.

         I. FACTUAL AND PROCEDURAL HISTORY

         The relevant facts of this case began on September 12, 2013. On that day, Petitioner drove from his home in Grant County, West Virginia, to a pharmacy in Winchester, Virginia, to pick up his prescription drugs Alprazolam (also called Xanax) and Oxycodone (also called Percocet).[2] Petitioner was accompanied by his adult daughter, Jordan Kivett, and an adult family relative named Lexus Cantwell.[3] After obtaining the pills, and while still in the pharmacy parking lot, Petitioner, Ms. Kivett and Ms. Cantwell crushed some of the pills and snorted them up their noses. Later that evening a party was held at Petitioner's home in Grant County. Petitioner gave his prescription pills freely to all the females at the party, including Ms. Cantwell. The men were required to pay for the pills.

         At some point during the evening, Ms. Cantwell became incapacitated from taking the prescription pills and drinking alcohol. After a few of the guests did not see Ms. Cantwell in the house, they asked Petitioner where she was. Petitioner stated that Ms. Cantwell "passed out in the closet, so [he] put her in the bed." One of the guests, Joey Snyder, demanded to see Ms. Cantwell.[4] Petitioner unlocked his bedroom door briefly and Mr. Snyder was able to see Ms. Cantwell lying on a bed with her pants off.

         It appears that during the course of the next four days Ms. Cantwell stayed at Petitioner's home. Ms. Kivett, who had been staying at Petitioner's home, stayed at the home of her boyfriend during this four-day period. However, Ms. Kivett maintained daily contact with Ms. Cantwell during this time. Ms. Kivett had the impression that Ms. Cantwell "acted like she almost wasn't allowed to [leave Petitioner's home]." On September 16, 2013, Ms. Kivett went to Petitioner's home to do some laundry. She repeatedly knocked on Petitioner's bedroom door, which was locked, but got no answer. After being in the home for several hours, Ms. Kivett began knocking on Petitioner's bedroom door again. Petitioner finally responded and said that he would be out. After Petitioner came out of his bedroom, Ms. Kivett saw Ms. Cantwell lying on his bed with vomit coming out of her mouth and blood coming out of her nose and ears; she was dead. Ms. Kivett told Petitioner to call 911, but he decided to drive Ms. Cantwell's body to a hospital.

         Petitioner dropped off Ms. Cantwell's body at Grant Memorial Hospital. He informed a nurse that Ms. Cantwell was a friend of his daughter and that he believed her name was Lexi. Petitioner left the hospital without telling the nurse his name. After Petitioner left the hospital, he saw Ms. Kivett riding with her boyfriend and flagged them down. During a brief discussion with Ms. Kivett on the roadside, Petitioner attempted to get her to agree that he was at work when she found Ms. Cantwell's body. Ms. Kivett informed Petitioner that she was going to tell the truth. A few days later Petitioner tried to suggest to Ms. Kivett that Ms. Cantwell committed suicide. Several days after this incident Petitioner told Ms. Kivett that "he was afraid that it was his fault, that he may have gave [Ms. Cantwell] too many pills." A pathologist determined that Ms. Cantwell "died of intoxication by the combined effects of the oxycodone and the alprazolam."

         Subsequent to a police investigation, a grand jury returned a five count indictment against Petitioner on March 3, 2015. The indictment charged him with one count of first-degree murder by supplying Ms. Cantwell with lethal amounts of Oxycodone and Alprazolam; one count of holding Ms. Cantwell hostage with the intent to defile; two counts of possession with the intent to deliver the controlled substance Alprazolam; and one count of possession with the intent to deliver the controlled substance Oxycodone. The prosecutor presented the case under a felony-murder theory, with the Oxycodone charge as the underlying felony.[5]

         The case was tried before a jury starting on February 17, 2016, and concluded on February 19, 2016.[6] The prosecutor presented testimony from nineteen witnesses. Petitioner did not testify and did not call any witnesses. The jury submitted seven questions to the trial court during its deliberations. The trial court responded to each of the questions. The jury ultimately returned a verdict convicting Petitioner of first-degree murder, holding hostage to defile, and two counts of possession with the intent to deliver the controlled substance Alprazolam.[7] Following the denial of post-trial motions the Petitioner filed this appeal. While the appeal was pending the parties filed a joint motion asking this Court to stay the appeal, [8] and permit them to supplement the record on the issue of the trial judge responding to seven jury questions.[9] By order entered January 25, 2017, this Court granted the motion and remanded the case "for the limited purpose of establishing the record on issues related to the assignment of error of whether petitioner's rights were violated when the circuit court answered a series of questions for the jury outside the presence of petitioner or his counsel."[10]

         On remand, a hearing was conducted before a new judge, the Honorable H. Charles Carl, III. A total of eight witnesses testified on remand regarding the issue, including Petitioner, his trial counsel [11] and the presiding trial judge. [12] Petitioner testified that he was present when the trial court responded to the first two jury questions, but that his trial counsel was not present. Petitioner also testified that he was not present when the trial judge responded to the last five jury questions. Petitioner's trial counsel testified that he was only present for one of the questions (possibly the sixth question) submitted by the jury. Trial counsel also disputed a claim that the trial judge contacted him by cell phone regarding the first two jury questions. The trial judge testified that Petitioner was not present when he responded to the last five jury questions, but that Petitioner's trial counsel was present for all of the questions except the first jury question.[13] The trial judge also stated that he called trial counsel on his cell phone and consulted with him regarding the first jury question.[14] The official court reporter testified that the court reporting equipment was running in the courtroom during the jury deliberations. The court reporter indicated that the recording equipment only picked up trial counsel's voice once, and that was around the time when the sixth jury question was sent into the courtroom. The court reporter also testified that she distinctly remembered that trial counsel was not present for the first question, because "[w]e contacted him at McDonald's and waited." The trial judge's law clerk testified that the trial judge called Petitioner's trial counsel to inform him of the first jury question. The law clerk also testified that trial counsel was present for the last five jury questions. The bailiff for the trial judge testified that trial counsel was present for all of the jury questions. Two other witnesses at the hearing testified that they had no recollection of the events surrounding the jury questions.[15]

         Subsequent to the remand hearing, the Petitioner filed a supplemental brief addressing the jury question issues. The State then filed its brief, which addressed the jury question issues.

         II. STANDARD OF REVIEW

         This case comes to this Court after the trial court denied Petitioner's post-trial motions for judgment of acquittal and new trial. We have held that "[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). It has also been noted that "a trial judge should rarely grant a new trial. . . . Indeed, a new trial should not be granted unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." McInarnay v. Hall, 241 W.Va. 93, 818 S.E.2d 919, 924 (2018) (internal quotation marks and citation omitted). This Court applies the following general standard when reviewing a circuit court decision denying a motion for a new trial:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Further, we have held that:

The trial court's disposition of a motion for judgment of acquittal is subject to our de novo review; therefore, this Court, like the trial court, must scrutinize the evidence in the light most compatible with the verdict, resolve all credibility disputes in the verdict's favor, and then reach a judgment about whether a rational jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). Additional review standards will be used for specific issues. Accordingly, we proceed to consider the parties' arguments.

         III.

         DISCUSSION

         A.

         Admission of Toxicology Evidence

         During the trial the State introduced the results of toxicology tests that were performed on Ms. Cantwell's blood. This evidence was introduced through Dr. James Kraner, the Chief Toxicologist of the Medical Examiner's Office. Dr. Kraner testified that Ms. Cantwell's blood had a level of the drugs Alprazolam and Oxycodone "that could cause fatal respiratory depression." In this appeal, the Petitioner contends that his Sixth Amendment right to confrontation was violated because Dr. Kraner did not perform the toxicology testing. The State argues that Petitioner failed to object to Dr. Kraner's testimony or his toxicology report on this ground during the trial, and therefore any alleged Sixth Amendment violation was waived.

         The Sixth Amendment confrontation right that the Petitioner contends was violated is set out in Syllabus point 6 of State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006) as follows:

Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.

         The decision in Mechling defined a testimonial statement as "a statement that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Syl. pt. 8, Mechling, in part.

         Assuming that the toxicology evidence in this case constitutes a statement under Mechling, the record supports the State's contention that Petitioner failed to object to the evidence on Sixth Amendment grounds.[16] We have recognized that "[o]ne of the most familiar procedural rubrics in the administration of justice is the rule that the failure of a litigant to assert a right in the trial court likely will result in the imposition of a procedural bar to an appeal of that issue." State v. Miller, 194 W.Va. 3, 17, 459 S.E.2d 114, 128 (1995) (internal quotation marks omitted). That is, "'[t]o 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)." Syl. pt. 10, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774 (2003). This principle is designed to prevent "a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result)." LaRock, 196 W.Va. at 316, 470 S.E.2d at 635. Petitioner's failure to raise a Confrontation Clause objection at trial precludes this Court from addressing the matter in this appeal. See State v. Shingleton, 237 W.Va. 669, 684, 790 S.E.2d 505, 520 (2016), abrogated by statute on other grounds ("The petitioner did not assert a Confrontation Clause objection to L.C.'s testimony during trial. Consequently, he has waived the right to raise the issue on appeal."); State v. Reed, 223 W.Va. 312, 321-22, 674 S.E.2d 18, 27-28 (2009) ("Assuming that Crawford is applicable to the facts of this case, we find that Mr. Reed waived the right to raise the issue in this appeal.").[17]

         B. Admission of Rule 404(b) Evidence

         The Petitioner next contends that the trial court committed error in admitting certain evidence under Rule 404(b) of the West Virginia Rules of Evidence, in violation of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). Specifically, Petitioner argues that the trial court improperly permitted four witnesses to present testimony showing that he previously gave controlled substances to women and engaged in sexual conduct with them. The State contends that this evidence was admissible to show Petitioner's common plan or scheme in giving women controlled substances in order to render them incapable of resisting his sexual advances.

         We have held that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to a review under an abuse of discretion standard." Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). "Our function . . . is limited to the inquiry as to whether the trial court acted in a way that was so arbitrary and irrational that it can be said to have abused its discretion." McGinnis, 193 W.Va. at 159, 455 S.E.2d at 528.

         Rule 404(b) provides that "[e]vidence 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." However, the rule goes on to provide that "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." The procedure for admitting evidence under Rule 404(b) was outlined in Syllabus point 2 of McGinnis as follows:

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 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.

         The record shows that the trial court held a McGinnis hearing at which the State presented evidence from eight witnesses that it intended to call at trial, to testify to prior acts of Petitioner providing controlled substances to woman for the purpose of engaging in sexual conduct with them. The trial court ultimately ruled that only four of the witnesses would be allowed to testify, because testimony by the remaining four witnesses would be cumulative. The court also held that the testimony would be admissible for all of the charges, except the hostage charge.[18] Ultimately the court gave a limiting instruction on the evidence when each witness's testimony was given at trial and during its charge to the jury.

         In this appeal, the Petitioner argues several reasons as to why the trial court erred in admitting the Rule 404(b) evidence. First, the Petitioner contends that the testimony of the witnesses at the McGinnis hearing did not show by a preponderance of the evidence that he engaged in sexual acts with the witnesses or that they were under the influence of drugs "where they could not resist." We disagree. The Petitioner's daughter, Ms. Kivett, testified at the McGinnis hearing that she saw Petitioner give drugs to women, and that on different occasions she saw women naked his home. Ms. Kivett also testified that Petitioner tried to seduce her several times while she was under the influence of drugs. Another witness named Nicole Cain, testified that she stayed with Petitioner for about a month and that he supplied her with drugs. Ms. Cain stated that she left Petitioner's home after he made sexual advances toward her when she was blacked out from drugs. A third witness, Devon Harlow, testified that Petitioner gave her drugs and that she slept in his bed. The fourth witness, Corey Teeter, testified regarding Petitioner giving drugs to his former girlfriend and performing oral sex on her. In light of the sworn testimony of the witnesses, we find that the trial court properly found by a preponderance of the evidence that the conduct each witness described actually occurred and that the Petitioner committed the acts.

         The Petitioner also contends that the Rule 404(b) evidence was not admissible because it lacked relevancy. Under Rule 402 of the West Virginia Rules of Evidence it is expressly provided that "[i]rrelevant evidence is not admissible." It has been recognized that "evidence is relevant so long as it has any tendency, however slight, to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 1 Palmer, et al., Handbook on Evidence, § 401.03[1], at 260. See W.Va. R. Evid. Rule 401. According to Petitioner the Rule 404(b) evidence would only be relevant if he were charged with sexual assault in the second degree, because that offense occurs when a person engages in sexual conduct with another person who is physically helpless. See W.Va. Code § 61-8B-4(a)(2) (1991). We disagree with the Petitioner's narrow interpretation of the type of evidence that may be used to show a common plan or scheme.

         It has been recognized that "a common plan or scheme may be established by evidence that the defendant committed markedly similar acts of misconduct against similar victims under similar circumstances." State v. DeVincentis, 112 Wash.App. 152, 157, 47 P.3d 606, 608-09 (2002) (internal quotation marks and citation omitted). See United States v. Ramey, 791 F.2d 317, 323 (4th Cir.1986) ("[O]ther identical instances of [conduct] to that charged in the indictment, occurring reasonably current with the activity charged in the indictment and connected with the very illegal activity which was the subject matter of the indictment, is admissible under the rubric of intent, plan, scheme or design."). In the instant case the Petitioner was charged with three counts of delivery of a controlled substance, and one count of first degree murder by supplying Ms. Cantwell with lethal amounts of controlled substances. The testimony of the Rule 404(b) witnesses was relevant to these offenses and the State's theory that the Petitioner had a common plan or scheme of supplying controlled substances to women in order to seduce them. See State v. Lough, 125 Wash.2d 847, 863-64, 889 P.2d 487, 496 (1995) ("Because the Defendant drugged his victims, rendering them unconscious or unable to clearly remember everything that happened, the evidence of many prior similar episodes to prove a plan was necessary and probative of the facts of the charged crime."); People v. Carroll, No. 327707, 2011 WL 2423918, at *1 (Mich. Ct. App. June 16, 2011) ("Without using the words 'scheme, plan, or system,' the court did in fact indicate that the testimony was pertinent to show that defendant had a system whereby he tried to obtain sex from women after providing them with alcohol or drugs.").

         The Petitioner further argues that even if the Rule 404(b) evidence was relevant, it should have been excluded as highly prejudicial under Rule 403 of the West Virginia Rules of Evidence. It has been recognized that under Rule 403 "a court has discretion to exclude evidence if its probative value is substantially outweighed by a danger of unfair prejudice." 1 Palmer, et al., Handbook on Evidence, § 403.05[2], at 295. It has been said that unfair prejudice is evidence that has "an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one." Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (internal quotation marks and citation omitted). Petitioner contends that "prejudice occurred as a result of the thirty year age difference between the Petitioner and the young women he allegedly engaged in sexual acts with." Additionally, Petitioner argues that prejudice occurred from some of the witnesses testifying that he used and sold drugs other than his prescription medication. Assuming that the facts Petitioner argues prejudiced him, we do not find that the admission of the Rule 404(b) evidence was unfairly prejudicial. See State v. Corey, 233 W.Va. 297, 307, 758 S.E.2d 117, 127 (2014) ("Although the evidence of the knives was prejudicial, such evidence was not unfairly prejudicial."); State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245, 260 n. 10 (2013) ("In weighing the probative value and the danger of unfair prejudice, it is imperative to note that the purpose of Rule 403 is not to exclude all evidence that results in prejudice to a defendant. It is the danger of unfair prejudice to which a reviewing court must be attuned."). "Rule 403 was never intended to exclude relevant evidence simply because it is detrimental to one party's case; rather, the relevant inquiry is whether any unfair prejudice from the evidence substantially outweighs its probative value." 1 Palmer, et al., Handbook on Evidence, § 403.05[2], at 297. See United States v. Pitrone, 115 F.3d 1, 8 (1st Cir.1997) ("Virtually all evidence is prejudicial--if the truth be told, that is almost always why the proponent seeks to introduce it--but it is only unfair prejudice against which the law protects."); Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977) ("Virtually all evidence is prejudicial or it isn't material. The prejudice must be 'unfair.'"). We simply do find that any prejudice caused by the Rule 404(b) evidence substantially outweighed the probative value of that evidence.[19]

         C. Joinder of Count II with other Offenses

         The Petitioner contends that the trial court committed error in denying his motion to sever the hostage count from the remaining charges, after ruling that the Rule 404(b) evidence was not admissible as to the hostage charge. The State argues that the trial court did not abuse its discretion in denying the motion.

         We have held that "[t]he decision to grant a motion for severance pursuant to W.Va. R. Crim. P. 14(a) is a matter within the sound discretion of the trial court." Syl. pt. 3, in part, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988). The standard for severing charges is set out under Rule 14(a) of the West Virginia Rules of Criminal Procedure, in part, as follows:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts or provide whatever other relief justice requires.

         The record shows that the trial court ruled that the Rule 404(b) evidence, regarding Petitioner's use of controlled substances to seduce women, was not admissible with respect to the hostage charge. The State points out that the trial court provided a limiting instruction each time a witness gave Rule 404(b) testimony, and that the court included an instruction in its charge. Petitioner argues, without any citation to authorities, "[t]here is no conceivable way the jury completely disregarded the large amount of 404(b) evidence when it deliberated Count II."[20] Petitioner's failure to include any legal authority in support of his argument is in direct contradiction to this Court's appellate rules and administrative order. Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that:

The brief must contain an argument exhibiting clearly the points of fact and law presented, the standard of review applicable, and citing the authorities relied on. . . .

         Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate Procedure, it provides that "[b]riefs that lack citation of authority [or] fail to structure an argument applying applicable law" are not in compliance with this Court's rules. Insofar as this assignment of error is inadequately briefed and fails to comply with the administrative order and our appellate rules, this Court will not address this assignment of error. See State v. Back, ___ W.Va.___, 820 S.E.2d 916, 920 n.4 (2018) ("In his appellate brief, Mr. Back fails to cite to a single authority on this issue. Accordingly, we decline to address this inadequately briefed issue."); State v. Shelby S., No. 14-0456, 2016 WL 2978567, at *5 ( W.Va. May 23, 2016) (Memorandum Decision) ("Here, petitioner's additional alleged errors are woefully inadequate as he fails to comply with the administrative order and the West Virginia Rules of Appellate Procedure. Thus, we decline to address petitioner's additional alleged errors[.]").

         D. Failure to Sever Offenses Occurring on ...


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