IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2023 Term FILED
November 8, 2023
No. 22-0239 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
v.
DAVID RAY THOMAS,
Defendant Below, Petitioner.
Appeal from the Circuit Court of Ohio County
The Honorable Michael J. Olejasz
Case No. 18-F-15
AFFIRMED
________________________________________________________
Submitted: September 12, 2023
Filed: November 8, 2023
Devon T. Unger, Esq. Patrick Morrisey, Esq.
West Virginia Innocence Project Attorney General
Morgantown, West Virginia Lindsay S. See, Esq.
Counsel for the Petitioner Solicitor General
William E. Longwell, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WOOTON dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “As a general rule, the refusal to give a requested jury instruction is
reviewed for an abuse of discretion. By contrast, the question of whether a jury was
properly instructed is a question of law, and the review is de novo.” Syllabus Point 1, State
v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996).
2. ““‘The decision to declare a mistrial, discharge the jury, and order a
new trial in a criminal case is a matter within the sound discretion of the trial court.’
Syllabus point 8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989).” Syllabus Point
1, State v. Costello, 245 W. Va. 19, 857 S.E.2d 51 (2021).
3. “‘The question of whether a defendant is entitled to an instruction on
a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having
to do with whether the lesser offense is by virtue of its legal elements or definition included
in the greater offense. The second inquiry is a factual one which involves a determination
by the trial court of whether there is evidence which would tend to prove such lesser
included offense. State v. Neider, 170 W. Va. 662, 295 S.E.2d 902 (1982)’ Syl. Pt. 1, State
v. Jones, 174 W. Va. 700, 329 S.E.2d 65 (1985).” Syllabus Point 3, State v. Wilkerson,
230 W. Va. 366, 738 S.E.2d 32 (2013).
4. “‘‘The test of determining whether a particular offense is a lesser
included offense is that the lesser offense must be such that it is impossible to commit the
i
greater offense without first having committed the lesser offense. An offense is not a lesser
included offense if it requires the inclusion of an element not required in the greater
offense.’ Syllabus Point 1, State v. Louk, [169] W. Va. [24], 285 S.E.2d 432 (1981)
[overruled on other grounds, State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994)].’
Syllabus Point 1, State v. Neider, 170 W. Va. 662, 295 S.E.2d 902 (1982).” Syllabus Point
5, State v. Wright, 200 W. Va. 549, 490 S.E.2d 636 (1997).
5. “Under Code, 61-11-8, which provides, in part, that: ‘Every person
who attempts to commit an offense, but fails to commit or is prevented from committing
it, shall, where it is not otherwise provided, be punished as follows: ***’ the failure or
prevention of the accused to commit the offense attempted is as much an element of the
attempt to commit the offense as the immediate specific intent to commit to the offense
and an overt act in furtherance of such intent.” Syllabus Point. 4, State v. Franklin, 139
W. Va. 43, 79 S.E.2d 692 (1953).
6. Attempted sexual assault in the first degree is not a lesser included
offense of sexual assault in the first degree.
7. “This Court may, on appeal, affirm the judgment of the lower court
when it appears that such judgment is correct on any legal ground disclosed by the record,
regardless of the ground, reason or theory assigned by the lower court as the basis for its
judgment.” Syllabus Point. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).
ii
8. “Before a manifest necessity exists which would warrant the declaring
of a mistrial and the discharging of the jury and ordering a new trial, the circumstances
must be prejudicial, or appear to be prejudicial, to the accused or the state.” Syllabus Point
3, State ex rel. Brooks v. Worrell, 156 W. Va. 8, 190 S.E.2d 474 (1972).
9. “The traditional appellate standard for determining prejudice for
discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure
involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a
material fact, and (2) did it hamper the preparation and presentation of the defendant’s
case.” Syllabus Point 2, State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994).
10. “In determining whether an out-of-court identification of a defendant
is so tainted as to require suppression of an in-court identification a court must look to the
totality of the circumstances and determine whether the identification was reliable, even
though the confrontation procedure was suggestive, with due regard given to such factors
as the opportunity of the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of the witness’ prior description of the criminal, the level
of certainty demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation.” Syllabus Point 3, State v. Casdorph, 159 W. Va.
909, 230 S.E.2d 476 (1976) (abrogated on other grounds by State v. Persinger, 169 W.
Va. 121, 286 S.E.2d 261 (1982).
iii
11. “In the trial of a criminal prosecution, where guilt or innocence
depends on conflicting evidence, the weight and credibility of the testimony of any witness
is for jury determination.” Syllabus Point 1, State v. Harlow, 137 W. Va. 251, 71 S.E.2d
330 (1952).
12. “It is improper for a prosecutor in this State to ‘[a]ssert his personal
opinion as to the justness of a cause, as to the credibility of a witness … or as to the guilt
or innocence of the accused….’ ABA Code DR7-106(C)(4) in part.” Syllabus Point 3,
State v. Critzer, 167 W. Va. 655, 280 S.E.2d 288 (1981).
13. “‘Four factors are taken into account in determining whether improper
prosecutorial comment is so damaging as to require reversal: (1) the degree to which the
prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the remarks, the strength of the
competent proof introduced to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert attention to extraneous
matters.’ Syl. Pt. 6, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).” Syllabus
Point 1, State v. Hamrick, 216 W. Va. 477, 607 S.E.2d 806 (2004).
iv
Armstead, Justice:
Petitioner appeals his conviction of sexual assault in the first degree
following a jury trial in the Circuit Court of Ohio County. On appeal, Petitioner asserts
that the circuit court erroneously: (1) refused to instruct the jury on the offense of attempted
sexual assault in the first degree; (2) denied Petitioner’s motion for a mistrial regarding a
photographic identification; (3) denied an in camera hearing when Petitioner learned that
there was an out-of-court photographic identification; and (4) denied a mistrial when the
prosecution’s key witness testified at trial to the opposite of what had been provided in
discovery and the assistant prosecutor vouched for the witness’s credibility.
Upon careful review of the briefs, the appendix record, the arguments of the
parties, and the applicable legal authority, we conclude that the circuit court did not err.
We, therefore, affirm Petitioner’s conviction.
I. FACTUAL AND PROCEDURAL HISTORY
On or about February 3, 2017, A.M. 1 disclosed to her elementary school
counselor that a man touched her vagina one time. 2 This disclosure was reported to West
1
Consistent with our long-standing practice, we use initials to protect the identities
of those involved in this case. See W. Va. R. App. P. 40(e).
2
During A.M.’s fifth grade year at her elementary school, the counselor taught a
curriculum called “The Child Safety Unit,” which addressed different types of abuse and
provided the children with information about how to talk to someone about unwanted
touches.
1
Virginia Child Protective Services and the West Virginia State Police. Further, this
disclosure was memorialized in an email drafted by the counselor, which reads:
[A.M.] disclosed that in May or June of last summer (between
4 and 5 grade) a “private body part rule” had been broken with
her. She shared that while at her mom’s house, still living in
North Park Apartments, her mom’s friends “Dayo” had
touched her vagina while he thought she was asleep on the
couch. She explained that mom was in the shower and that she
had fallen asleep on the couch with her baby brother, [A].
Dayo picked up and moved [A] to the other end of the couch
and then sat back down with her and put his hand inside of her
pants. He stopped when mom opened the door to come out of
the bathroom, where she was showering. She pretended to be
asleep while Dayo touched her and she thinks he did not know
that she realized this was happening to her. She said that she
told her mom the next day and that she said, Ok, I will talk to
Dayo about it. [A.M.] thinks mom was lying [because] “I can
always tell when she’s lying” and thinks she never did anything
about it [be]cause they never talked about it again. Until
reporting to this counselor, she says that she has not told
anyone else. I called the new caseworker and she asked me to
help transport [A.M.] to Harmony House for forensic interview
this same day. I also made a formal report to WV CPS
centralized intake.
The counselor transported A.M. to Harmony House for a forensic interview.
Although the interview was recorded, the video was the only portion that actually recorded.
The audio of the interview failed to record.
A.M.’s case worker at the time of her disclosure witnessed the interview and
prepared an email memorializing it. In the email, the case worker described A.M.’s account
of the event in which she identified Dayo as the man who put his hand inside her clothes
2
in the “bikini bottom part between the legs.” Further, according to the case worker’s email,
A.M. said that Dayo “moved his fingers around and it felt ‘weird it’s hard to explain.’” She
noted that “[A.M.] denies penetration. She says that the incident stopped when he heard
the bathroom door open.”
On July 20, 2017, a criminal complaint was filed against Petitioner, and on
the same day, a warrant was issued for his arrest. Petitioner waived extradition from Ohio
and was transported to the Magistrate Court of Ohio County for his initial appearance.
Petitioner’s bail was set at $25,000 (full cash only) and due to his inability to post bail, he
was committed to jail. 3 On January 8, 2018, Petitioner was indicted on one count of sexual
assault in the first degree. He was arraigned on January 18, 2018, and at that time, the State
served “State of West Virginia’s Discovery Disclosure” upon Petitioner through his
counsel. In Section VIII of the disclosure, which deals with “Photographs from
Photographic Lineups or other Identification Proceeding,” the State noted “Not
applicable.”
Petitioner’s trial began on May 7, 2018, and concluded on May 9, 2018.
During the trial, the State called five witnesses: the school counselor, A.M.’s case worker,
3
Petitioner’s bond was subsequently modified, by agreed order, to $10,000
corporate surety bond with GPS monitored house arrest. Petitioner posted bond on
February 1, 2018, and he remained on home confinement until it was revoked following
his conviction.
3
M.F. (A.M.’s mother), Sergeant Dean (investigating officer), and A.M. Relevant to this
appeal, during the cross-examination of A.M.’s mother, M.F., she testified that Sergeant
Dean had shown her a photograph of Petitioner and asked her to identify him. Petitioner’s
counsel moved for a mistrial and argued that because the State failed to disclose the
identification pretrial, “there [was] no remedy for it other than a mistrial.” The circuit court
disagreed and denied Petitioner’s motion for a mistrial.
After the State rested its case, the parties and the court engaged in a
discussion regarding the charge and jury instructions. 4 The State included a proposed jury
instruction for the lesser included offense of sexual abuse in the first degree. Petitioner
objected to the instruction so it was withdrawn by the State. Thereafter, Petitioner
requested an instruction for attempted sexual assault in the first degree, and the State
objected to such an instruction.
After consideration of this issue, the circuit court declined to include an
instruction for attempted sexual assault in the first degree for the following reasons: (1)
Petitioner did not submit a proposed instruction for attempted first-degree sexual assault;
and (2) the court did not believe that the evidence would support giving an attempted first-
degree sexual assault instruction.
4
Both sides submitted a proposed jury charge, and the circuit court described them
as “very similar, if not virtually identical.”
4
During closing arguments, the assistant prosecutor made the following
remarks concerning A.M.’s trial testimony:
“[p]robably the most critical, most reliable most inherently
non-tainted evidence in this case is A.M. A.M. came to court
today as an 11-year old child that plays the violin and is in
chorus and has so many pets that I can’t even remember and
now lives with her grandma, and she testified to you,
specifically and in detail, about the sexual assault by Dayo,
David Ray Thomas. A.M. has no motivation to lie.”
Petitioner made a timely objection to this statement and argued that the
assistant prosecutor was “vouching for the witness.” For this reason, Petitioner again
moved for a mistrial. Although the circuit court did not find that vouching had occurred,
it instructed the assistant prosecutor not to vouch for the credibility of witnesses. Upon
resuming her closing argument, the assistant prosecutor said “[y]ou are the trier of the facts
and you can judge the credibility of the witness – the witnesses.”
During the State’s rebuttal closing argument, the assistant prosecuting
attorney said: “[t]hat child was so deliberate and factual and just listened to the questions.
She wasn’t coached. She wasn’t lying about issues and saying things.” Petitioner made a
timely objection and again moved for a mistrial arguing that the assistant prosecutor had
vouched for A.M. The circuit court sustained Petitioner’s objection and instructed the jury
to “disregard counsel’s last statement.”
5
Following deliberations, Petitioner was convicted of sexual assault in the first
degree and was sentenced to an indeterminate term of incarceration of not less than twenty-
five nor more than one hundred years.
Petitioner now appeals his conviction. 5
II. STANDARDS OF REVIEW
Initially, Petitioner asserts that the circuit court erred by refusing to instruct
the jury on the offense of attempted sexual assault in the first degree. “As a general rule,
the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By
contrast, the question of whether a jury was properly instructed is a question of law, and
the review is de novo.” Syl. Pt. 1, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257
(1996).
“‘The decision to declare a mistrial, discharge the jury, and order a new trial
in a criminal case is a matter within the sound discretion of the trial court.’ Syllabus point
5
Following his conviction, Petitioner requested new counsel, and his request was
granted. Petitioner appeared for his sentencing hearing on August 28, 2018, and his
sentence was memorialized in an order entered on November 9, 2018. On May 15, 2019,
the circuit court entered an Amended Sentencing Order to correct an error in the State’s
recitation of the evidence introduced at trial, but the amended order did not change
Petitioner’s sentence, conditions of registration or supervised release. On April 5, 2019,
this Court granted prior counsel’s Motion to Withdraw Petitioner’s Appeal. On or about
February 8, 2022, Petitioner moved to be resentenced to renew his appeal period. By order
entered on March 22, 2022, Petitioner was resentenced and the instant appeal followed.
6
8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989).” Syl. Pt. 1, State v. Costello,
245 W. Va. 19, 857 S.E.2d 51 (2021).
“The decision to grant or deny a motion for mistrial is reviewed under an
abuse of discretion standard.” State v. Lowery, 222 W. Va. 284, 288, 664 S.E.2d 169, 173
(2008).
III. DISCUSSION
In his appeal before this Court, Petitioner argues that the circuit court
erroneously: (1) refused to instruct the jury on the offense of attempted sexual assault in
the first degree; (2) denied Petitioner’s motion for a mistrial regarding a photographic
identification; (3) denied an in camera hearing when Petitioner learned that there was an
out-of-court photographic identification; and (4) denied a mistrial when the prosecution’s
key witness testified at trial to the opposite of what had been provided in discovery and the
assistant prosecutor vouched for the witness’s credibility.
A. LESSER INCLUDED OFFENSE
In Petitioner’s first assignment of error, he asserts that the circuit court
erroneously denied his motion to instruct the jury on the lesser included offense of
attempted sexual assault in the first degree.
7
Petitioner was indicted and convicted of sexual assault in the first degree. 6
During a discussion regarding jury instructions, the State provided the circuit court with a
written instruction for the lesser included offense of sexual abuse in the first degree.
Petitioner objected to the State’s instruction for sexual abuse in the first degree so it was
withdrawn by the State. The State informed the court that it was “comfortable with first-
degree sexual assault … just guilty or not guilty.”
Petitioner moved to have the jury instructed on the crime of attempted sexual
assault in the first degree but did not provide the circuit court with a proposed written
instruction for that offense. 7 Following a recess, the circuit court informed the parties that
it would not include a jury instruction for attempted sexual assault in the first degree. In
support of its ruling, the circuit court indicated that “[t]here hasn’t been one submitted, but
notwithstanding that, I don’t believe the evidence would support giving an attempted
sexual assault instruction. I think, based on the evidence, it’s either the State has met its
6
West Virginia Code § 61-8B-3(a)(2) provides: “A person is guilty of sexual
assault in the first degree when: The person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is younger than twelve years
old and is not married to that person.”
7
Immediately after this request was made, the discussion veered from the attempt
instruction to the topic of a possible alibi defense when Petitioner interjected himself into
the discussion and stated that he was out of state at the time the crime occurred. Petitioner’s
trial counsel indicated that Petitioner was “going to testify to that,” and the State objected
because the Petitioner had not provided notice of an alibi defense. The alibi issue was
eventually resolved when the circuit court indicated that an alibi defense would be
improper, and counsel for Petitioner agreed and indicated: “[o]ur defense is we didn’t do
it. That’s not an alibi.”
8
burden of proof as to the charged offense or it has not met its burden of proof as to the
charged offense.” Counsel for Petitioner offered the following proffer of what his
instruction would have been:
[i]t would’ve been – well, actually, it would’ve been – it
would’ve been that the jury could return one – it could return
three verdicts. It could return a verdict of guilty of first-degree
sexual assault, guilty of attempted first-degree sexual assault,
or not guilty. My attempt instruction would’ve come from
West Virginia Code 61-11-8, and it says that every person who
attempts to commit an offense, that failed to commit an offense
or is prevented from committing it, shall, where it is not
otherwise provided by law, be punished as followed [sic]. And
I also would’ve said that there’s two elements for the attempt.
First, there has to be an intent to commit the crime, and then,
second, there has to be a substantial step in furtherance of that
crime with the intent to commit the crime. That would’ve been
what I would’ve instructed with regards to my attempt
instruction.
This Court has previously held:
[t]he question of whether a defendant is entitled to an
instruction on a lesser included offense involves a two-part
inquiry. The first inquiry is a legal one having to do with
whether the lesser offense is by virtue of its legal elements or
definition included in the greater offense. The second inquiry
is a factual one which involves a determination by the trial
court of whether there is evidence which would tend to prove
such lesser included offense.
Syl. Pt. 3, State v. Wilkerson, 230 W. Va. 366, 738 S.E.2d 32 (2013).
We begin our analysis by first determining whether the crime of attempted
sexual assault in the first degree is actually a lesser included offense of sexual assault in
the first degree. Petitioner argues that “[t]he test of determining whether a particular
9
offense is a lesser included offense is that the lesser offense must be such that it is
impossible to commit the greater offense without having first committed the lesser
offense.” State v. Bell, 211 W. Va. 308, 311, 565 S.E.2d 430, 433 (2002). Petitioner
acknowledges that whether the crime of attempted sexual assault in the first degree is a
lesser included offense of sexual assault in the first degree is an issue of first impression
for this Court. In essence, Petitioner argues that a person cannot complete an act without
first attempting to complete the act. 8 In support of this argument, Petitioner urges this
Court to follow decisions from other jurisdictions which have concluded that attempted
sexual assault in the first degree is a lesser included offense of sexual assault in the first
degree. We decline to do so.
Petitioner’s analysis of whether a particular offense is a lesser included
offense does not provide the complete picture. “The test of determining whether a
particular offense is a lesser included offense is that the lesser offense must be such that it
is impossible to commit the greater offense without first having committed the lesser
offense. An offense is not a lesser included offense if it requires the inclusion of an
element not required in the greater offense.’ Syllabus Point 1, State v. Louk, [169] W.
Va. [24], 285 S.E.2d 432 (1981)[overruled on other grounds, State v. Jenkins, 191 W. Va.
87, 443 S.E.2d 244 (1994)].’ Syllabus Point 1, State v. Neider, 170 W. Va. 662, 295 S.E.2d
8
In his brief before this Court, Petitioner lays out this argument as follows:
“[n]eedless to say, attempted penetration is a lesser included offense of completed
penetration because it is impossible for a person to complete an act (at least where intent
is an element) if the person didn’t attempt to complete it.”
10
902 (1982).” Syl. Pt. 5, State v. Wright, 200 W. Va. 549, 490 S.E.2d 636 (1997) (emphasis
added).
Unlike the jurisdictions Petitioner cites, this Court is bound to apply the
elements in the attempt statute of this State and as interpreted by this Court in ascertaining
whether the elements of attempted sexual assault include an element not required of
completed sexual assault The general attempt statute, West Virginia Code § 61-11-8,
provides in relevant part that “[e]very person who attempts to commit an offense, but fails
to commit or is prevented from committing it, shall, where it is not otherwise provided, be
punished as follows….”
In State v. Starkey, we noted the difficulties in contouring the elements of the
general attempt statute, “result[ing] from the fact that an attempt to commit a crime covers
a broad spectrum of different criminal offenses.” 161 W. Va. 517, 522, 244 S.E.2d 219,
222 (1978), overruled on other grounds by State v. Guthrie, 194 W. Va. 657, 461 S.E.2d
163, (1995). 9 Nevertheless, under Starkey “[i]n order to constitute the crime of attempt,
two requirements must be met: (1) a specific intent to commit the underlying substantive
9
The Court in Starkey further noted that the difficulty in attempted crimes can be
attributed, in part, to the fact that “[t]he crime of attempt does not exist in the abstract, but
rather exists only in relation to other offenses.” And “[e]ach criminal offense contains
separate elements. Consequently, the type of facts necessary to prove an attempt to commit
murder will not be the same as those necessary to prove an attempt to commit
embezzlement or arson.” Starkey, 161 W. Va. at 522, 244 S.E.2d 219, 222-223.
11
crime; and (2) an overt act toward the commission of the crime, which falls short of
completing the underlying crime. Id. at Syl. Pt. 2.
Important for our purposes, this Court has held, since at least 1953, that
“[u]nder Code, 61-11-8, … the failure or prevention of the accused to commit the offense
attempted is as much an element of the attempt to commit the offense as the immediate
specific intent to commit the offense and an overt act in furtherance of such intent.” Syl.
Pt. 4, State v. Franklin, 139 W. Va. 43, 79 S.E.2d 692 (1953). Having cited Franklin, the
Starkey Court was aware of and did not disturb that point of law. Starkey, 161 W. Va. at
521, 244 S.E.2d at 222. While Petitioner argues that logic demands the conclusion that
one must always attempt a crime before completing it, that logic is not universally
applicable, particularly given that attempt requires the specific intent to commit a crime
and not all crimes are intentionally committed. We find that applying this Court’s
precedent relative to the elements of attempted sexual assault compels the conclusion that
it requires proof of an element not required of sexual assault, namely, the failure or
prevention of the accused to actually commit a sexual assault. 10 Therefore, the crime of
10
Rule 31(c) of the West Virginia Rules of Civil Procedure provides: “(c)
Conviction of lesser offense.—The defendant may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either the offense charged or an
offense necessarily included therein if the attempt is an offense.” This rule refers to attempt
and lesser included offenses with the disjunctive “or” – that is, that attempt is distinct from
a lesser included offense of the greater charged, albeit all under the umbrella of “lesser
offenses.” Lesser included offenses offer a criminal defendant the benefit of mitigation for
not having committed some extra element of the greater offense that is tantamount to
greater culpability. The inchoate crime of attempt, by contrast, is a “lesser offense”
(continued . . .)
12
attempted sexual assault in the first degree is not a lesser included offense of sexual assault
in the first degree and Petitioner was not entitled to the instruction because the first prong
of Neider is not met . 11
While we need not continue the Neider analysis of whether the attempt
instruction was supportable by the evidence, we find it incumbent to mention that Petitioner
relied on a misidentification defense, not mitigation for a crime that he failed to complete
because he was interrupted during its commission. 12 The evidence presented at trial was
because it offers the defendant mitigation insofar as the crime intended was not
accomplished either by choice or by happenstance. Petitioner does not cite or otherwise
argue that he is entitled to relief based on Rule 31, couching his argument solely in terms
of attempt as a lesser included offense, and we address his argument accordingly.
11
In support of his argument regarding the circuit court’s refusal to instruct the jury
on the crime of attempted sexual assault in the first degree, Petitioner also asserts that the
denial of his proffered instruction resulted in a dramatic difference in his sentence.
Petitioner’s reliance upon the differences in the severity of the sentences between the two
crimes is without merit. Although Petitioner correctly notes that the crime of sexual assault
in the first degree, for which he was convicted, carries an indeterminate sentence of 25 to
100 years, and the crime of attempted sexual assault in the first degree carries a much
reduced sentence of 1 to 3 years, he fails to acknowledge that this issue is not a factor that
this Court can consider. “[S]entence length is not a factor in … [the] test for determining
whether a defendant is entitled to a lesser-included offense instruction.” State v. Wegman,
No. 17-1041, 2019 WL 2406521 at *3 (W. Va. Supreme Court, June 7,
2019)(memorandum decision). Interestingly, Petitioner also asserts that his sentence
would have been greatly reduced if he had been convicted of what he terms “sexual
contact,” which is sexual abuse in the first degree. However, as we have previously noted,
Petitioner objected to the giving of this specific instruction so the State withdrew its
proposed instruction for sexual abuse in the first degree.
12
Petitioner acknowledges that identification was an issue in this case, and in fact
during closing arguments, Petitioner’s trial counsel said “[s]omething may have happened
(continued . . .)
13
that of a completed sexual assault (penetration) or a completed sexual abuse in the first
degree (sexual contact without penetration). The only evidence that Petitioner was
prevented from committing the completed crime of sexual assault was the victim’s
interview at Harmony House when she told the interviewer that he stopped touching her
when her mother got out of the shower and opened the bathroom door – by which time he
had already completed the offense of sexual abuse in the first degree. However, when
offered an instruction on the lesser included offense of sexual abuse in the first degree, 13
Petitioner objected, contending that it was an “all or nothing” case. In other words,
Petitioner’s view of the evidence was that the State had to prove penetration (the completed
crime of sexual assault in the first degree) or be content with an acquittal for no crime
having occurred at all. Under those circumstances, we have difficulty concluding that the
circuit court abused its discretion in finding that the evidence did not support an attempt
instruction. Moreover, the circuit court was only obligated to give the instruction at issue
if it was a lesser included offense. Because we have concluded that attempted sexual
assault in the first degree is not a lesser included offense of sexual assault in the first degree,
Petitioner was not entitled to the requested instruction.
to this child. I don’t know. Let me tell you, that man [Petitioner] didn’t do it.” The State
argues that this defense may preclude a criminal defendant from requesting a lesser
included offense instruction.
13
See State v. Dellinger, 178 W. Va. 265, 358 S.E.2d 826 (1987) (holding that,
under certain facts, sexual abuse in the first degree is a lesser included offense of sexual
assault in the first degree.)
14
Although the crime of attempted sexual assault in the first degree is not a
lesser included offense of sexual assault in the first degree, this Court has previously
concluded that the crime of sexual abuse in the first degree is a lesser included offense of
sexual assault in the first degree under certain facts. See State v. Dellinger, 178 W. Va.
265, 358 S.E.2d 826 (1987) (per curiam). While Petitioner argued that it was error for the
circuit court to fail to instruct the jury on attempted sexual assault in the first degree,
counsel conceded that if Petitioner objected to the lesser included offense instruction of
sexual abuse in the first degree (which he did below), he cannot complain and would have
waived that issue. Accordingly, Petitioner’s counsel essentially conceded the issue relating
to the lesser included offense instruction during oral argument.
While the circuit court focused on Petitioner’s failure to submit a written
instruction and its belief that the evidence did not support giving such an instruction, we
find that the more compelling fact is that, pursuant to the standard set forth in State v.
Neider as well as this Court’s prior holding in State v. Franklin, attempted sexual assault
in the first degree is not a lesser included offense of sexual assault in the first degree. 14
Accordingly, the circuit court did not err in declining to give the requested instruction.
B. PHOTOGRAPHIC IDENTIFICATION
14
“This Court may, on appeal, affirm the judgment of the lower court when it
appears that such judgment is correct on any legal ground disclosed by the record,
regardless of the ground, reason or theory assigned by the lower court as the basis for its
judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).
15
Petitioner’s second and third assignments of error relate to a pretrial
photographic identification, and for ease of reference, we will address both assignments
together. In his second assignment of error, Petitioner alleges that the circuit court erred
by denying his motion for a mistrial that was made after he learned of a pretrial
photographic identification during his trial. In his third assignment of error, Petitioner
argues that the circuit court compounded this error by denying his motion for an in camera
hearing on the suggestibility of the pretrial photographic identification.
The record reflects that Petitioner first learned of a pretrial photographic
identification during the cross examination of A.M.’s mother, M.F. M.F. testified that
Sergeant Dean showed her a picture of Petitioner and she identified the person in the
photograph as Dayo. M.F. did not know whether the photograph had been shown to A.M.
After M.F. completed her trial testimony and after she was excused, Petitioner moved for
a mistrial. Following a recess, the circuit court heard arguments regarding the motion for
a mistrial. The circuit court denied Petitioner’s motion, concluding that the photograph
was used to confirm that the person in the photograph was Dayo, not to identify Dayo.
Petitioner concedes that there are various remedies available to a circuit court
when there has been a discovery violation.
Rule 16(d)(2) [of the West Virginia Rules of Criminal
Procedure] provides that where there has been noncompliance
with legitimate discovery requests, a circuit court, in addition
to ordering immediate disclosure, granting a continuance, and
excluding evidence, “may enter such other order as it deems
just under the circumstances.” This broad language justifies
16
the adding of several other remedies or sanctions to the list
such as (a) advising the jury to assume the existence of facts
that might have been established by the missing information,
(b) holding the violator in contempt of court, (c) granting a
mistrial, and (d) dismissing the charges.
State ex rel. Rusen v. Hill, 193 W. Va. 133, 140, 454 S.E.2d 427, 434 (1994). Importantly,
“[w]hich remedy is preferable is best left to the discretion of the circuit court.” Id.
The remedy sought by Petitioner was a mistrial. Petitioner did not seek a
continuance or any of the other possible remedies. The circuit court concluded that a
mistrial was not appropriate. This Court has previously held:
[t]he decision to declare a mistrial, discharge the jury and order
a new trial in a criminal case is a matter within the sound
discretion of the trial court. A trial court is empowered to
exercise this discretion only when there is a “manifest
necessity” for discharging the jury before it has rendered its
verdict. This power of the trial court must be exercised wisely;
absent the existence of manifest necessity, a trial court’s
discharge of the jury without rendering a verdict has the effect
of an acquittal of the accused and gives rise to a plea of double
jeopardy.
State v. Williams, 172 W. Va. 295, 304, 305 S.E.2d 251, 260 (1983) (citations omitted).
“Before a manifest necessity exists which would warrant the declaring of a mistrial and the
discharging of the jury and ordering a new trial, the circumstances must be prejudicial, or
appear to be prejudicial, to the accused or the state.” Syl. Pt. 3, State ex rel. Brooks v.
Worrell, 156 W. Va. 8, 190 S.E.2d 474 (1972).
The circuit court’s denial of Petitioner’s motion for a mistrial is reviewed
under an abuse of discretion standard. State v. Lowery, 222 W. Va. 284, 664 S.E.2d 169,
17
(2008). We must now determine if “manifest necessity” existed requiring the circuit court
to declare a mistrial. In making this determination, we are guided by our prior decisions
regarding discovery violations and out-of-court identifications.
“The traditional appellate standard for determining prejudice for discovery
violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-
pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and
(2) did it hamper the preparation and presentation of the defendant’s case.” Syl. Pt. 2, State
ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994). While Petitioner was
surprised by M.F.’s testimony regarding an out-of-court photographic identification, we
are not persuaded that this violation meets the second prong of Rusen.
Although Petitioner asserts that the circuit court’s ruling was based, in part,
“on a difficult-to-comprehend assertion that the suggestive photo was not presented to
A.M.’s mother for identification, but only for a ‘a confirmation of it,’” we disagree with
Petitioner’s characterization. Even if we were to find that the out-of-court identification
was suggestive, the question we must then decide is whether “under the totality of the
circumstances” the identification was reliable.
In determining whether an out-of-court identification of a
defendant is so tainted as to require suppression of an in-court
identification a court must look to the totality of the
circumstances and determine whether the identification was
reliable, even though the confrontation procedure was
suggestive, with due regard given to such factors as the
opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of the
18
witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.
Syl. Pt. 3, State v. Casdorph, 159 W. Va. 909, 230 S.E.2d 476 (1976) (abrogated on other
grounds by State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982).
Significantly, the photographs were not used to identify an unknown
assailant. Instead, they were used to confirm that the individual in the photograph was
Dayo, the person A.M. identified as the perpetrator from the moment she disclosed the
assault. Of particular significance is the fact that A.M. did not see the photographs and the
record does not reveal that A.M. even heard discussion relating to the photographs. The
jury heard testimony that M.F. knew Petitioner and that he had been to her house “[a]
couple of times. Maybe four.” The jury also heard that Petitioner had contact with A.M.
and her brother and that Petitioner gave M.F. presents for the children. Accordingly, the
victim, A.M., did not identify the Petitioner based on the photographs and the evidence
clearly established that A.M.’s mother, M.F., knew the Petitioner independent of the
photographs. 15
15
Petitioner also asserts that the circuit court compounded the error regarding
the photographic identification by denying his motion for an in camera hearing on whether
an in-court identification would be tainted by an unduly suggestive out of court
identification. Petitioner’s arguments in support of this assignment of error are difficult to
follow. Petitioner argues that he “moved for both an in camera hearing on the admissibility
of the out-of-court identification and a mistrial based on the late disclosure.” The State
argues that Petitioner did not move for an in camera hearing and, therefore, waived this
assignment of error. A review of the trial transcript reveals that Petitioner moved for a
mistrial, not an in camera hearing. Further, in his reply before this Court, Petitioner
(continued . . .)
19
For these reasons set forth herein and under the facts of this case, the circuit
court did not abuse its discretion when it denied Petitioner’s motion for a mistrial with
respect to the photographic identification. Accordingly, we affirm the circuit court’s
decision in this regard.
C. AMBUSH & VOUCHING
In his final assignment of error, Petitioner combines two complaints: (1) the
State ambushed him when A.M. allegedly testified contrary to the discovery that was
provided; and (2) the State improperly vouched for A.M.’s credibility during its closing
arguments. 16 We find no merit to Petitioner’s arguments in this regard.
acknowledges that “an in camera hearing would [have] be[en] meaningless … because the
in-court identification had already occurred.”
The in camera hearing Petitioner refers to is generally known as a “Casdorph
hearing.” See State v. Casdorph, 159 W. Va. 909, 230 S.E.2d 476 (1976) (abrogated on
other grounds by State v. Persinger, 169 W. Va. 121, 286 S.E.2d 261 (1982).
As we noted, supra, Petitioner only moved for a mistrial. He did not move for a
continuance. Further, in support of his motion for a mistrial, his counsel stated “there is
no remedy for [the failure to disclose] other than a mistrial.”
16
Petitioner’s specific assignment of error in this regard is that the circuit court erred
in denying his motion for a mistrial regarding these alleged errors. Although Petitioner
made two motions for a mistrial during the State’s closing arguments, it does not appear
that he made a motion for a mistrial during the alleged ambush that he claims occurred
during A.M.’s trial testimony. Following A.M.’s testimony, the State rested. After the
jury was excused from the courtroom, Petitioner made a motion for judgment of acquittal
pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure. Since Petitioner
made a motion for a mistrial during the State’s closing argument and because he combines
his claims of ambushing and vouching, we will analyze this assignment of error under the
lens of a motion for a mistrial.
20
Initially, Petitioner asserts that he was ambushed by A.M.’s trial testimony
because it was only then that he “first learn[ed]” that A.M. was alleging that penetration
occurred. Essentially, Petitioner’s argument is that the State committed discovery
violations that hampered his trial preparation.
As we noted, supra, “[t]he traditional appellate standard for determining
prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal
Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the
defendant on a material fact, and (2) did it hamper the preparation and presentation of the
defendant’s case.” Syl. Pt. 2, State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427
(1994). Despite Petitioner’s argument of surprise, he had been provided, prior to trial, a
copy of the grand jury transcript in which Sergeant Dean testified that he had determined,
through his investigation, that Petitioner “penetrated, however slight, the female sexual
organ of A.M.” In fact, the alleged discrepancy between A.M.’s interview with the
interviewer at Harmony House and Sergeant Dean’s grand jury testimony formed, in part,
the basis for Petitioner’s Motion to Dismiss the Indictment. Petitioner’s motion to dismiss
was denied as “untimely and in violation of the Court’s Scheduling order.” In addition,
the circuit court found that Petitioner’s motion “appears to summarily highlight conflicts
in the evidence rather than providing factual support for allegations of fraud and/or
prosecutorial misconduct by the prosecuting attorney.” (Emphasis added). Clearly,
Petitioner was aware of A.M.’s interview and of Sergeant Dean’s grand jury testimony.
21
For these reasons, we are not persuaded by Petitioner’s claim that he was ambushed or
surprised by A.M.’s trial testimony. Further, we find that the preparation and presentation
of Petitioner’s case was not hampered by this alleged conflict in the evidence.
Significantly, Petitioner did not move for a continuance to allow him to address the alleged
“ambush.”
In addition to his claim of being ambushed, Petitioner also maintains that the
assistant prosecutor “vouched for [A.M.’s] credibility, despite personally knowing that
[A.M.] had not been truthful.” We begin our analysis with Petitioner’s assertion that the
State “personally” knew that A.M. had not been truthful. 17 Petitioner was provided
discovery regarding A.M.’s forensic interview with interviewer at Harmony House in
which it was noted that A.M. denied penetration. During A.M.’s trial testimony, she
testified that Petitioner put his hand “a little bit inside my private part.” She then clarified
that she meant vagina when she used the term “private part.” Counsel for Petitioner
thoroughly cross-examined A.M. regarding the issue of penetration, and during redirect,
A.M. was asked if she knew what the word “penetration” meant. Her answer was “[n]ot
really.”
At the time of her testimony, A.M. was eleven years old. According to her
trial testimony, the crime occurred during the summer between fourth and fifth grade when
This claim appears to be directed toward the assistant prosecutor who met with
17
A.M. prior to her trial testimony.
22
she “nine, turning ten.” Although Petitioner describes A.M.’s trial testimony as a “last-
minute assertion of a lack of understanding of the meaning of the word ‘penetration,’” and
argues that such assertion “seems improbable,” he points to no evidence that A.M. had
previously indicated that she knew what penetration meant. Further, the jury heard A.M.’s
testimony as well as Petitioner’s cross-examination and made a credibility determination,
which we will not disturb.
The assistant prosecutor made two statements during closing arguments that
resulted in Petitioner motions for a mistrial. First, the assistant prosecutor said:
Probably the most critical, most reliable, most inherently non-
tainted evidence in this case is A.M. A.M. came to court today
as an 11-year-old child that plays the violin and is in chorus
and has so many pets that I can’t even remember and now lives
with her grandma, and she testified to you, specifically and in
detail, about the sexual assault by Dayo, David Ray Thomas.
A.M. has no motivation to lie.
Petitioner objected and during a sidebar discussion with the circuit court, counsel for
Petitioner argued that the assistant prosecutor was vouching for the credibility of A.M. For
this reason, Petitioner moved for a mistrial. The circuit court denied Petitioner’s motion
but instructed the State not to vouch for credibility. Immediately thereafter, the State made
the following statement to the jury: “[y]ou are the trier of facts and you can judge the
credibility of the witness – the witnesses.”
23
During the State’s rebuttal closing argument, the assistant prosecutor made
the following statement: “[t]hat child was so deliberate and factual and just listened to the
questions. She wasn’t coached. She wasn’t lying about issues and saying things.” Counsel
for Petitioner objected and again moved for a mistrial. The circuit court denied Petitioner’s
motion for a mistrial but sustained the objection and instructed the jury to disregard the
State’s last statement.
“It is improper for a prosecutor in this State to ‘[a]ssert his personal opinion
as to the justness of a cause, as to the credibility of a witness … or as to the guilt or
innocence of the accused….’ ABA Code DR7-106(C)(4) in part.” Syl. Pt. 3, State v.
Critzer, 167 W. Va. 655, 280 S.E.2d 288 (1981). This Court has held that the following
“‘[f]our factors are taken into account in determining whether
improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of the competent proof introduced to
establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert
attention to extraneous matters.’ Syl. Pt. 6, State v. Sugg, 193
W. Va. 388, 456 S.E.2d 469 (1995).”
Syl. Pt. 1, State v. Hamrick, 216 W. Va. 477, 607 S.E.2d 806 (2004). In addition to
articulating the factors to be examined when analyzing an alleged prejudicial prosecutorial
remark, Sugg also “clarified that not every improper prosecutorial remark will result in
reversal of a conviction: ‘[a] judgment of conviction will not be set aside because of
24
improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice
the accused or result in manifest injustice.’” State v. Mills, 219 W. Va. 28, 631 S.E.2d 586
(2005) (quoting Syl. Pt. 5, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995)).
The first comment was made during the State’s closing argument, and it was
immediately followed by the following statement: “[y]ou are the trier of facts and you can
judge the credibility of the witness – the witnesses.” The second comment occurred during
rebuttal closing argument, and was, in part, a response to comments made by Petitioner’s
counsel that A.M. had been coached into changing her testimony. Petitioner asserts that
these comments required the circuit court to declare a mistrial. In support of this argument,
Petitioner relies, in part, on two prior decisions of this Court, but his reliance is misplaced
as neither of these cases bolster his argument. In State v. England, 180 W. Va. 342, 376
S.E.2d 58 (1988), this Court affirmed a conviction despite the prosecutor saying that two
witnesses “were here to tell the truth,” and that neither had “something to gain” by
testifying against the defendant. In fact, the prosecutor in England concluded: “They [the
State witnesses] took an oath to tell you the truth , and I submit to you that that’s what they
did.” Id. at 351, 376 S.E.2d 548, 557 (1988). In State v. Critzer, 167 W. Va. 655, 280
S.E.2d 288 (1981), this Court reversed a defendant’s criminal conviction because the
prosecutor “injected his personal opinion as to the guilt of the defendant, asserted his belief
in the honesty, sincerity, truthfulness, and good motives of his witnesses,” and also “argued
facts not in evidence.” Id. at 660-661, 280 S.E. 288, 292. In addition, the prosecutor
“compared the defendant to a vulture and appealed to local prejudice by indicating that the
25
defendant came to West Virginia to victimize dumb hillbillies.” Id. at 661, 280 S.E.2d 288,
292. Further, the prosecutor “pointed to and directly addressed the defendant.” Id.
Significantly, and in sharp contrast to the facts of the instant case, this Court noted in
Critzer that “no instructions were given to the jury telling them the prosecutor’s comments
were improper and that they should disregard them.” Id. at 661, 280 S.E.2d 288, 292
(1981).
The statements at issue in the instant case were limited, not extensive. With
respect to these statements, the assistant prosecutor did not vouch for the truthfulness of
any specific statement that A.M. made. The statements at issue did not mislead the jury,
and Petitioner has not alleged that they were deliberately placed before the jury to divert
attention to extraneous matters. Petitioner’s objection to the second statement at issue was
sustained, and the jury was instructed to disregard the statement. Importantly, the strength
of the evidence that established Petitioner’s guilt weighs heavily against a finding that the
circuit court erred in declining to declare a mistrial.
We believe that the circuit court “acted within appropriate bounds of
discretion” 18 in deciding that the assistant prosecutor’s statements, followed by (1) a
reminder by the assistant prosecutor that the jury was the trier of fact and could judge the
credibility of the witnesses as to the first statement; and (2) a sustained objection and an
18
State v. Lowery, 222 W. Va. at 288, 664 S.E.2d at 173.
26
instruction by the circuit court to disregard the assistant prosecutor’s last statement, did not
create a manifest necessity requiring a mistrial. For these reasons, we find that the circuit
court did not abuse its discretion by denying Petitioner’s motions for a mistrial due to
vouching.
IV. CONCLUSION
Therefore, for the reasons set forth herein, the decision of the Circuit Court
of Ohio County is affirmed.
Affirmed.
27