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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2017 Term 

_______________ FILED 

June 16, 2017 No. 15-1145 released at 3:00 p.m. 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v. 

PAUL DARREN SPINKS, 

Defendant Below, Petitioner 

Appeal from the Circuit Court of Nicholas County
 

The Honorable Gary L. Johnson, Judge
 

Criminal Action No. 14-F-87
 

AFFIRMED
 

Submitted: May 3, 2017
 

Filed: June 16, 2017
 

J. Steven Hunter, Esq. Patrick Morrisey, Esq. 

Robert P. Martin, Esq. Attorney General 

Steve Hunter Associates, l.c. Zachary Aaron Viglianco, Esq. 

Lewisburg, West Virginia Assistant Attorney General 

Counsel for Petitioner Charleston, West Virginia 

Counsel for Respondent 

JUSTICE WALKER delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Except for willful, intentional fraud the law of this State does not 

permit the court to go behind an indictment to inquire into the evidence considered by the 

grand jury, either to determine its legality or its sufficiency.” Syllabus, Barker v. Fox, 

160 W.Va. 749, 238 S.E.2d 235 (1977). 

2. “‘Most courts hold that as a general rule, a trial court should not 

grant a motion to dismiss criminal charges unless the dismissal is consonant with the 

public interest in the fair administration of justice.’ Syl. Pt. 12, in part, Myers v. Frazier, 

173 W.Va. 658, 319 S.E.2d 782, 786 (1984).” Syllabus Point 4, State ex rel. Pinson v. 

Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989). 

3. “‘Dismis[s]al of [an] indictment is appropriate only ‘if it is 

established that the violation substantially influenced the grand jury’s decision to indict’ 

or if there is ‘grave doubt’ that the decision to indict was free from substantial influence 

of such violations.’ Bank of Nova Scotia v. United States, 487 U.S. 250, 261-62, 108 

S.Ct. 2369, 101 L.Ed.2d 228, 238 (1988) (citing United States v. Mechanik, 475 U.S. 66, 

78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986) (O’Connor, J., concurring)).” Syllabus 

Point 6, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989). 

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4. “‘[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)).” Syllabus Point 1, State 

v. Varlas, 237 W.Va. 399, 787 S.E.2d 670 (2016). 

5. “‘Generally, out-of-court statements made by someone other than 

the declarant while testifying are not admissible unless: 1) the statement is not being 

offered for the truth of the matter asserted, but for some other purpose such as motive, 

intent, state-of-mind, identification or reasonableness of the party’s action; 2) the 

statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an 

exception provided for in the rules.’ Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 

S.E.2d 221 (1990).” Syllabus Point 3, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 

(2010). 

6. “It is within a trial court’s discretion to admit an out-of-court 

statement under Rule 803(1), the present sense impression exception, of the West 

Virginia Rules of Evidence if: (1) The statement was made at the time or shortly after an 

event; (2) the statement describes the event; and (3) the event giving rise to the statement 

was within a declarant’s personal knowledge.” Syllabus Point 4, State v. Phillips, 194 

W.Va. 569, 461 S.E.2d 75 (1995). 

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7. “When offering evidence under Rule 404(b) of the West Virginia 

Rules of Evidence, the prosecution is required to identify the specific purpose for which 

the evidence is being offered and the jury must be instructed to limit its consideration of 

the evidence to only that purpose. It is not sufficient for the prosecution or the trial court 

merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific 

and precise purpose for which the evidence is offered must clearly be shown from the 

record and that purpose alone must be told to the jury in the trial court’s instruction.” 

Syllabus Point 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). 

8. “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 

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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). 

9. “It is presumed a defendant is protected from undue prejudice if the 

following requirements are met: (1) the prosecution offered the evidence for a proper 

purpose; (2) the evidence was relevant; (3) the trial court made an on-the-record 

determination under Rule 403 of the West Virginia Rules of Evidence that the probative 

value of the evidence is not substantially outweighed by its potential for unfair prejudice; 

and (4) the trial court gave a limiting instruction.” Syllabus Point 3, State v. LaRock, 196 

W.Va. 294, 470 S.E.2d 613 (1996). 

10. “The plain error doctrine contained in Rule 30 and Rule 52(b) of the 

West Virginia Rules of Criminal Procedure is identical. It enables this Court to take 

notice of error, including instructional error occurring during the proceedings, even 

though such error was not brought to the attention of the trial court. However, the 

doctrine is to be used sparingly and only in those circumstances where substantial rights 

are affected, or the truth-finding process is substantially impaired, or a miscarriage of 

justice would otherwise result.” Syllabus Point 4, State v. England, 180 W.Va. 342, 376 

S.E.2d 548 (1988). 

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11. “‘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). 

12. “‘Jury instructions on possible guilty verdicts must only include 

those crimes for which substantial evidence has been presented upon which a jury might 

justifiably find the defendant guilty beyond a reasonable doubt.’ Syl. pt. 5, State v. 

Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).” Syllabus Point 1, State v. Leonard, 

217 W.Va. 603, 619 S.E.2d 116 (2005). 

13. “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 

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proved beyond a reasonable doubt.” Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 

461 S.E.2d 163 (1995). 

14. “A criminal defendant challenging the sufficiency of the evidence to 

support a conviction takes on a heavy burden. An appellate court must review all the 

evidence, whether direct or circumstantial, in the light most favorable to the prosecution 

and must credit all inferences and credibility assessments that the jury might have drawn 

in favor of the prosecution. The evidence need not be inconsistent with every conclusion 

save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility 

determinations are for a jury and not an appellate court. Finally, a jury verdict should be 

set aside only when the record contains no evidence, regardless of how it is weighed, 

from which the jury could find guilt beyond a reasonable doubt. To the extent that our 

prior cases are inconsistent, they are expressly overruled.” Syllabus Point 2, State v. 

Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). 

15. “When a criminal defendant undertakes a sufficiency challenge, all 

the evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of 

vantage, and the viewer must accept all reasonable inferences from it that are consistent 

with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts 

and credibility questions in the prosecution’s favor; moreover, as among competing 

inferences of which two or more are plausible, the judge must choose the inference that 

vi 
 

 

best fits the prosecution’s theory of guilt.” Syllabus Point 3, State v. LaRock, 196 W.Va.
 

294, 470 S.E.2d 613 (1996).
 

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WALKER, Justice: 

Petitioner Paul Darren Spinks (“Petitioner”) appeals the November 1, 2015, 

order of the Circuit Court of Nicholas County sentencing him to life imprisonment 

without the possibility of parole for the 2007 murder of his wife. Petitioner asserts that 

the trial court erred by: (1) refusing to dismiss the indictment returned by the grand jury 

based upon fraud; 2) improperly admitting evidence of prior domestic violence, marital 

discord, and threats made by Petitioner against his wife; 3) refusing to instruct the jury on 

lesser included offenses; and 4) denying his motion for judgment of acquittal when the 

evidence presented at trial was insufficient to support his conviction. Upon consideration 

of the parties’ briefs and arguments, the submitted record and pertinent authorities, we 

affirm Petitioner’s conviction. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

The evidence presented at trial was that at 1:06 p.m. on October 31, 2007, 

Petitioner placed a 911 call claiming that he and his wife, Elizabeth Spinks, had been shot 

from a distance by an unknown shooter while seated on the front porch of their home. 

According to Petitioner’s recorded statement taken by police at the hospital, Petitioner 

and Elizabeth were seated on their front porch smoking when Petitioner heard what he 

thought was a “firecracker”, and Elizabeth “stood up and grabbed her . . . neck and fell 

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down on the porch in front of [him].”1 Petitioner stated that upon seeing Elizabeth drop 

to the ground, he ran into the house to get their cell phone to call 911, came back out onto 

the porch, and while bending over Elizabeth to check her and talking to the 911 

dispatcher, he likewise sustained a gunshot wound to his left thigh. 

Petitioner stated that after calling 911, he went back into the house and into 

their bedroom, where he continued to talk with the dispatcher and tell her what had 

occurred. According to his recorded statement, Petitioner then got Elizabeth’s gun, a 

.300 Winchester Magnum, out of the gun cabinet and went into the bathroom to hide for 

fear that the shooter would come into the house and try to kill him. He remained in his 

home and made other telephone calls while waiting for an ambulance and officers to 

respond to the scene.2 He contended that during the wait, he passed out twice. He also 

stated that he dropped the phone and had to look for it in the pool of blood on his 

bathroom floor. 

1 Elizabeth was shot in the upper left chest. Petitioner stated that at the time of the 

shooting, he and Elizabeth were sitting face-to-face on the porch. He described that 

Elizabeth was sitting with her back facing the house and he was sitting with his back 

away from the house. 

2 Pursuant to the evidence admitted at trial, Petitioner’s cell phone records 

revealed that he made thirteen phone calls between the time of his initial 911 call and 

when he exited his house to meet law enforcement officers and first responders. Three of 

those calls were made to 911. The other calls were made to Petitioner’s mother and 

father, BB&T bank, and two other unidentified numbers. 

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Petitioner was still inside the residence when emergency personnel arrived. 

He emerged from the home when the 911 dispatcher instructed him to exit the house. 

The officers who responded to the scene, West Virginia State Police Sergeants Ron Lilly 

and Anthony Webb, testified that when Petitioner exited the residence, his hands 

appeared to be clean despite the fact that his leg was bleeding very heavily. Moreover, 

while Petitioner was lying on his back as paramedics prepared to transport him from the 

scene, Petitioner, stretching back and pointing up over his head, called Sergeant Lilly’s 

attention to a bullet hole located on the front of the house. Petitioner was flown to the 

hospital for medical treatment. 

In his recorded statement taken at the hospital by Corporal B.J. Wriston, a 

West Virginia State Police trooper, Petitioner indicated that when he was out on the 

porch calling 911, he saw an older model white Chevrolet truck sitting in the lower end 

of the parking lot of a nearby elementary school. He surmised that the shots possibly 

may have come from that truck. When Corporal Wriston asked if Petitioner and 

Elizabeth had been having any marital problems, Petitioner denied any. When Corporal 

Wriston asked if they had any problems with anyone else in the past, Petitioner stated that 

a man named Harvey Hersman had been calling Elizabeth’s cell phone in the last six 

months threatening Petitioner, claiming that he was going to burn down their house and 

garage. Petitioner indicated, however, that Mr. Hersman had not made any calls 

threatening him for approximately the last month. When asked if Mr. Hersman had ever 

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specifically threatened to shoot Petitioner during these calls, Petitioner replied that “[h]e 

had told some other people that, and it got word back around to me, but he – he’s the type 

of person I figure he’d get somebody else to do it. . . . But my wife never done nothing.” 

Before concluding the statement, Corporal Wriston asked whether Petitioner had 

anything to add, and Petitioner said, “I’d like you to check my hands for powder or 

whatever they do . . . because I didn’t fire no gun. She didn’t fire no gun.” 

At approximately 4:15 p.m., a West Virginia State Police crime scene 

response team arrived at the Spinks’ residence and thoroughly investigated the scene, 

collecting numerous pieces of evidence. Corporal H.C. Mitchell, a West Virginia State 

Police trooper, testified that he collected a fired .22 caliber bullet from a bookcase located 

in the living room of the residence, which appeared to have traveled through a plastic 

chair on the porch and the siding on the front of the house. Corporal Mitchell also 

recovered a Savage Model 110E, caliber .222, Remington rifle from a gun cabinet in the 

bedroom. West Virginia State Police Sergeant Robert Richards collected a second fired 

.22 caliber bullet from the front porch and another gun, a .300 Winchester Remington 

Model 700, located on the bathroom floor.3 Sergeant Ron Lilly, a detachment 

commander for the West Virginia State Police who was the custodian of the evidence in 

3 Darren Francis, an employee of the West Virginia State Police Forensic 

Laboratory (“State Forensic Lab”), testified that he tested both of the bullets retrieved 

from the scene, and neither had any blood on them. 

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this case, testified that several other guns were seized and taken from Petitioner’s 

residence. However, only three were submitted to the West Virginia State Forensic Lab 

for testing because the wound that Elizabeth suffered appeared to be from a smaller 

caliber gun. 

West Virginia State Police Sergeant Bruce Clendenin, the lead investigator 

on the case, testified that there was a significant amount of Petitioner’s blood inside the 

house, on the floor of the bathroom, and in the bedroom. Moreover, various witnesses 

testified that although there was no trail of blood leading from the porch into the house, 

there was a pool of blood in the bathroom leading into the master bedroom and less 

toward the front door. Sergeant Clendenin testified that one thing that stood out as odd to 

him that day was that the bathroom sink was wet, freshly used. Sergeant Clendenin took 

several measurements at the crime scene, in particular of the bullet hole in the siding of 

the house in relation to the green lawn chair that also appeared to have a bullet hole in it. 

He noted that there was no blood on any of the porch furniture or the walls, and that the 

majority of the blood was underneath Elizabeth’s body and nowhere else. 

Sergeant Clendenin also testified that when he and other officers were 

searching Petitioner’s home, he observed a small hump or “puffed up” disturbance in the 

carpet on the bathroom floor, so the carpet was cut back in that area and he observed 

what he believed to be an apparent bullet hole in the bathroom floor. The portion of the 

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particle board floor containing this hole was cut out by Sergeant Anthony Webb and was 

placed into evidence. Sergeant Lilly testified that the piece of carpet laying over the 

bullet hole did not have a hole in it. Sergeant Clendenin also testified that officers 

conducted a search underneath the home to retrieve a bullet, but because there was a large 

amount of nails and metal debris underneath it, their metal detectors were unable to 

locate anything. 

The question of whether the hole in the bathroom floor was caused by a 

bullet was in dispute at trial. Philip Cochran, a firearm and tool-mark examiner 

employed with the State Forensic Lab, testified that he could not confirm by the presence 

of chemical residue that the hole was caused by a bullet. However, he testified that the 

damage to the wood and the size of the hole were not inconsistent with having been 

caused by a bullet. He stated that if a bullet had passed through carpet or padding before 

going through the wood, any of the residues that he would have been looking for would 

have been removed, and thus, he did not rule out the possibility that the hole in the 

bathroom floor was caused by a bullet. He also determined that of the guns submitted to 

the State Forensic Lab for testing, none of the firearms matched the two bullets that were 

found at the scene. 

Additionally, Koren Powers, an employee of the State Forensic Lab who 

worked in the trace evidence section, conducted gunshot residue testing and determined 

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that no gunshot residue was found on either Petitioner, Elizabeth, or the piece of carpet 

that was removed from the bathroom floor by investigators. Meredith Chambers, a DNA 

analyst employed with the State Forensic Lab, testified that she tested swabs collected 

from the bathroom carpet, the Remington 700 rifle taken from the bathroom floor, and 

Petitioner’s cell phone and that the results identified from the swabs collected were 

consistent with Petitioner’s DNA. 

Petitioner subsequently gave another recorded statement to police on 

January 7, 2008, and provided details about the events that occurred on the night of the 

crime that were consistent with his prior recorded statement. In that second recorded 

statement, Petitioner offered, among other things, further details regarding the nature of 

his strained relationships with Elizabeth’s father and sister. However, Petitioner again 

denied having any prior domestic violence incidents with Elizabeth. He also offered 

further details about his relationship with Harvey Hersman and his belief that he was 

responsible for the shooting. 

Mr. Hersman was interviewed by Sergeant Clendenin, who determined that 

Mr. Hersman had a plausible alibi at the time of the murder because he was with his wife 

that day. Sergeant Clendenin interviewed Mr. Hersman’s wife and she confirmed Mr. 

Hersman’s alibi. Sergeant Clendenin also testified that Mr. Hersman’s cell phone records 

indicated that he had not called either Elizabeth’s or Petitioner’s phone, contrary to 

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Petitioner’s statement. Thus, Mr. Hersman was ruled out as a suspect.4 No arrests were 

made following the initial investigation of the crime. 

Seven years later, James Milam, Nicholas County Prosecuting Attorney, 

wrote a letter in June of 2014 to Lieutenant Colonel Jack Chambers with the West 

Virginia State Police requesting that they reopen the investigation of Elizabeth’s murder 

on the basis of “evidence which has come to light in another murder in the Birch River 

area.” The case was re-investigated by Corporal D.P. White, a West Virginia State Police 

cold case investigator. He testified before the grand jury on September 9, 2014. 

At the grand jury hearing, Corporal White testified that although Petitioner 

bled heavily on the day Elizabeth was shot, and although he told police that he dropped 

his phone while hiding in the bathroom and fumbled to recover it in his blood pools, his 

hands were relatively clean when he met officers at the door. He testified that prior to 

leaving the residence for the hospital, Petitioner pointed out a bullet hole on the side of 

the house and said that he believed the shooter was in a white pickup truck in the parking 

4 Sergeant Walter Shafer, an officer with the Nicholas County Sheriff’s 

Department, saw an individual who he believed to possibly be Harvey Hersman walking 

past the Go-Mart on Route 82 near Petitioner’s home as he was responding to the scene 

following 

Petitioner’s 911 call. However, after reviewing mug shots of both Mr. Hersman and Mr. 

Hersman’s brother, Sonny Propps, Sergeant Walters determined that the individual he 

saw that day was Mr. Propps. 

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lot of the school adjacent to his house. He also testified that a bullet recovered from the 

vicinity of Elizabeth’s body adjacent to her head, and another recovered from the side of 

the house, had no human tissue and blood on them. 

Corporal White testified that pursuant to the autopsy report, the projectile 

track of the bullet recovered from Elizabeth’s body was inconsistent with the manner in 

which Petitioner described the incident. The projectile tract was from front to back, left 

to right and downward. Although there was a pool of blood underneath where Elizabeth 

laid on the porch, there was no blood spatter anywhere. Furthermore, no blood spatter 

was found on the porch where Petitioner stated he was shot, and there was no path of 

blood where Petitioner stated that he turned toward the door. Corporal White testified 

that there was also what appeared to be a bullet hole in the bathroom floor where 

Petitioner told police he hid, along with a substantial amount of blood. There was also a 

blood trail from the bathroom leading back out to the front porch. 

Corporal White also testified that following the murder, Petitioner’s house 

burned down, and it remained an unsolved arson case. However, despite the fire, the 

original concrete porch remained intact and a new mobile home had been attached. He 

testified that using a laser rangefinder, the distance to Petitioner’s porch from the school 

was 262 yards, and would have required the rifle to be held “three inches high” to hit 

Elizabeth as it did. However, automobiles were parked between the school and 

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Petitioner’s porch when Elizabeth was shot. He testified that Petitioner’s pants were 

found to be negative for gunshot residue and positive for LeadFree. He testified that he 

believed LeadFree was a cleaning solvent used to clean firearms. The bullets that passed 

through both Elizabeth and Petitioner were not recovered. 

Corporal White testified regarding the domestic violence petition that 

Elizabeth had filed against him in April of 2007, wherein she stated that Petitioner had 

shoved her around, slammed her to the floor, and threatened her, making her fear for not 

only her life but for the safety of their kids. He also testified regarding the divorce papers 

that were found hidden in the springs underneath the driver’s seat in Elizabeth’s car that 

indicated that his Elizabeth was planning to file for a divorce. 

With respect to Petitioner’s allegations that he believed Harvey Hersman 

had shot them, Corporal White stated those allegations were not true. He indicated that 

Mr. Hersman, who had an alibi, was now deceased and had been killed in an unrelated 

case. Although Petitioner told police that the shot that wounded him came approximately 

twenty seconds after the shot that killed Elizabeth, Corporal White told the grand jury 

that upon his re-interview of every witness, neighbor and various teachers at the adjacent 

school, these witnesses told police that they heard shots approximately three to eight 

minutes apart, with the first shot being loud, as if it was outside, and the second shot 

muffled, as if it was inside. 

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Corporal White also testified about the allegations Petitioner made in a 

third recorded statement given in 2014, after Corporal White told Petitioner that based 

upon the trajectory of their wounds, they could not have been shot from the school 

parking lot. Petitioner surmised that his neighbor, Mike Butcher, a known alcoholic, may 

have shot them from an upstairs window in his home. Corporal White indicated that 

although Mr. Butcher was deceased, having died from natural causes, he interviewed the 

woman that Mr. Butcher lived with at the time of the murder, Lexy Cutlip. Ms. Cutlip 

remembered that Mr. Butcher was heavily intoxicated on the day in question. She 

granted Corporal White permission to come into their home and operate a laser 

rangefinder from the upstairs window targeting Petitioner’s front porch. Corporal White 

testified that he determined, once again, that it was physically impossible for the bullet to 

strike Petitioner and Elizabeth from that location, based on the trajectories. 

Corporal White testified that he never received any specific information 

from the prosecutor regarding the new evidence that had come to light in another murder 

investigation in the Birch River area, other than that he was told “it was due to receiving 

a conversation with one of the defense attorneys here on – on another murder, and that’s 

what led him to bring this to me.” While Corporal White knew that there was only one 

other open murder investigation in the Birch River area, he did not obtain any evidence 

from that investigation or speak with the attorneys involved in that case. Based on the 

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testimony of Corporal White, the Nicholas County Grand Jury returned an indictment in 

September 2014. 

In December 2014, Petitioner filed a motion to dismiss the indictment on 

the ground that the grand jury testimony of Corporal White was speculative, misleading 

and tantamount to fraud. During a hearing held by the trial court on January 16, 2015, 

Petitioner’s counsel provided lengthy argument concerning portions of the grand jury 

transcript and the State objected to the motion. In an order entered March 25, 2015, the 

trial court denied Petitioner’s motion finding that Petitioner had not shown that Corporal 

White’s grand jury testimony was willfully or intentionally fraudulent, and therefore, the 

court was not permitted to “go behind an indictment” to inquire into the evidence 

considered by the grand jury. 

Prior to trial, the State filed a motion to admit intrinsic evidence of 

domestic abuse. Specifically, the State sought to introduce evidence of: (1) prior 

domestic violence between Petitioner and Elizabeth that occurred on April 22, 2007, 

resulting in an emergency domestic violence protective order obtained by Elizabeth, and 

other prior incidents of domestic violence occurring in November 2006 and March 2007; 

(2) ongoing marital problems between them; and (3) threats made by Petitioner to 

Elizabeth. Petitioner opposed the motion, arguing that the April 22, 2007, incident was 

isolated, the domestic violence proceeding was voluntarily dismissed by Elizabeth, and 

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that Elizabeth told the family court that she was “angry” when she filed her petition. An 

in camera hearing was conducted on June 12, 2015, and the court heard testimony from 

Sergeant William Nunley, a Nicholas County Sheriff’s Department officer, who 

responded to the April 22 domestic call; Tabitha Hooker, a domestic violence advocate 

who assisted Elizabeth in filing the petition for domestic violence protective order; 

Catherine Gregory (“Catherine”), Elizabeth’s sister; and Michelle Cowger (“Michelle”), 

Elizabeth’s daughter. 

On August 7, 2015, the circuit court entered an order granting the State’s 

motion and admitting the evidence, finding the evidence of domestic violence on April 

22, 2007, intrinsic. However, the court found statements made by Elizabeth to Sergeant 

Nunley and Ms. Hooker regarding the April 22, 2007, incident to be testimonial in nature 

and barred by the confrontation clause. Each of the four witnesses presented were 

permitted to testify as to their observations and actions. The court determined that 

Catherine and Michelle were permitted to testify at trial about statements Elizabeth made 

to them. The court found the instances occurring prior to that event to be “too remote to 

be intrinsic” and engaged in a Rule 404(b) analysis, ultimately determining that 

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petitioner’s prior violence against Elizabeth was relevant and more probative than 

prejudicial. 5 

At trial, the State elicited testimony from Dr. Zia Sabet, the State medical 

examiner who conducted Elizabeth’s autopsy, indicating that the entrance wound on 

Elizabeth’s body was near her clavicle and the exit wound on her “mid-lower back.” No 

bullet was found in Elizabeth’s body upon autopsy examination. Dr. Sabet opined that if 

she had been sitting upright when the bullet struck her, as Petitioner alleged in his prior 

statements, and if the shot was fired from the distance Petitioner claimed, the only way a 

bullet could have entered and exited Elizabeth’s body in the manner it did was if that 

bullet had been fired “from the top or . . . third or fourth floor on some building or maybe 

[from an] airplane.” When asked if Dr. Sabet could determine what size bullet likely 

killed Elizabeth, he testified that he could not make a determination due to the skin’s 

elasticity. 

5 The circuit court also concluded that three exhibits offered by the State during 

the hearing (the police report prepared by Sergeant Nunley, Ms. Hooker’s notes from her 

meeting with Elizabeth, and the domestic violence protective order) would not be 

admissible at trial. In determining that the Rule 404(b) evidence was admissible, the 

court ordered that the proper limiting instructions required by State v. McGinnis, 193 

W.Va. 147, 455 S.E.2d 516 (1994) and Rule 105 of the West Virginia Rules of Evidence 

would be provided. 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The State’s trajectory and blood spatter expert, Sergeant Michael Lynch 

with the West Virginia State Police, presented various trigonometry calculations to the 

jury to demonstrate that if Petitioner had been sitting upright when she was shot, from the 

distance Petitioner claimed in his statements, the shooter would have had to have fired 

from at least several hundred feet above Elizabeth. Sergeant Lynch stated that the 

location of Elizabeth’s wounds were consistent with her being shot from a much closer 

distance while she was in a different position such as bent over to tie her shoes, getting 

ready to leave. He also noted the lack of blood in the photographs despite the fact that he 

opined she would have bled immediately. With respect to Petitioner’s injuries, Sergeant 

Lynch testified that the location of the entry and exit wounds that Petitioner suffered were 

inconsistent with his own sketched representations that he drew posturing himself on the 

porch. He testified that there should have been blood trails and stains visible on the front 

porch if Petitioner was shot in the manner in which he claimed. 

With respect to Petitioner’s claim that he was shot shortly after Elizabeth 

was hit, the State presented testimony from Donna Park, JoAnn Davis, Betsy Strickland, 

and Mitzi Frame, who were inside the nearby elementary school at the time of the 

shooting. Donna Park testified that she was teaching in a classroom on the backside of 

the building near the playground when she heard one loud gunshot that sounded like it 

came from behind the building. When she looked out the window to determine whether 

someone had shot at the school, she did not see any people or movement anywhere. The 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

other three witnesses were also working at the school and were located in the multipurpose room on the other end of the building, near the parking lot. When they heard the 

first shot, which they testified sounded very loud and close, they looked at the window 

and observed an older model white truck. They each testified that there was a delay of 

approximately five minutes between when they heard the initial shot and when they heard 

the later one. Each of the witnesses had different recollections regarding whether the 

white truck was still present at the time they heard the second shot fired.6 

Finally, Michelle testified that she observed several arguments between 

Elizabeth and Petitioner. During two of those arguments, one in November 2006 and the 

other in March 2007, Petitioner struck or was otherwise physically aggressive toward 

Elizabeth. She also testified about two separate occasions on which Petitioner threatened 

Elizabeth’s life. One incident occurred on April 22, 2007, when Michelle was supposed 

to drive Petitioner’s Camaro to the prom. At some point throughout the night, Michelle 

6 JoAnn Davis, who worked part-time as a parent coordinator at the school, 

testified that the truck was moving when she observed it and she heard the second 

gunshot five minutes later. Betsy Strickland, a special education teacher, testified that the 

white truck was still in the parking lot at the time the second shot was fired. Mitzi Frame, 

who worked as a tutor, testified that when she saw the truck after hearing the first 

gunshot, it was rolling, headed down towards Birch River. The State also presented 

testimony from Petitioner’s neighbor, Katie Coffman, who testified that while she was 

sitting near a partially opened glass door in her dining room on the day of the shooting, 

she heard two shots from the direction of Petitioner’s house. Like the teachers that 

testified, Mrs. Coffman testified that she heard the second shot five minutes after she 

heard the first shot. 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and Petitioner got into a dispute over her use of the car and Michelle decided to take 

Catherine’s car instead. Michelle testified that once Petitioner found out that they had 

left his car parked at her grandfather’s house, he threatened that “Catherine or anybody in 

[her] family better not move the car, or he was going to kill [Elizabeth].” Catherine 

testified that Elizabeth also called her that night and when she learned that Catherine gave 

Michelle her own car and had then driven Petitioner’s Camaro to their father’s house to 

park it, Elizabeth told her “[h]e can’t know you drove it down there. Don’t tell him. . . . 

He’s on his way home. Don’t call here. He can’t know.” Elizabeth filed a domestic 

violence petition on the same night. Michelle also testified that subsequently, in the 

summer of 2007, Elizabeth got into a shouting match with Petitioner, during which 

Elizabeth said she was “gonna pack her bags” and Petitioner replied that “he was gonna 

bury her before . . . she left him.” 

Michelle further testified that in either August or September of 2007, she 

went with Elizabeth to pick up divorce papers, started filling them out, and then hid them 

under the Dale Earnhardt seat covers in Elizabeth’s car. Those divorce papers, which 

were discovered when Petitioner sold Elizabeth’s car, were the subject of testimony and 

exhibited at trial. Catherine testified that because she knew Elizabeth was going to 

divorce Petitioner, she had the name on Elizabeth’s gravestone changed to reflect her 

maiden name. Michelle also provided testimony about the various types of guns that 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitioner kept in the home and in his vehicle. She testified specifically that Petitioner 

kept a .22 and a .9 millimeter handgun in his truck. 

At the conclusion of the evidence, the jury found Petitioner guilty of 

murder in the first degree. He was sentenced to a term of life imprisonment in the state 

penitentiary without the possibility of parole. Petitioner now appeals his conviction. 

II. STANDARD OF REVIEW 

Petitioner presents four issues for this Court’s consideration, each of which 

have specific review standards.7 Accordingly, instead of setting forth a general standard 

of review, we will discuss the specific standards of review separately as we address each 

issue presented. 

III. DISCUSSION 

A. Refusal to Dismiss the Indictment 

7 While Petitioner’s brief asserts six assignments of error, the last two assignments 

merely provide: (1) that the cumulative effect of all error assigned denied his right to a 

fair trial and (2) that all other error apparent from the face of the record should be 

considered. Because Petitioner fails to address, factually or legally, either of these two 

errors, we deem them waived. 

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Petitioner alleges that the State obtained the indictment against him by 

making several critical fraudulent misrepresentations before the grand jury. Specifically, 

Petitioner identifies four pieces of evidence presented to the grand jury that he contends 

are indicative of the State’s fraudulent efforts to obtain an indictment. 

First, Petitioner argues that none of the “bullet holes” that Corporal White 

identified were ever tested or confirmed to be bullet holes, with the exception of the piece 

of flooring cut out of the bathroom, which he alleges was determined not to contain a 

bullet hole. Second, he alleges that there was no gunshot residue located on either 

Elizabeth or Petitioner, or any of the items submitted to the State Forensic Lab for 

gunshot residue testing, including the piece of carpet removed from the bathroom, 

Elizabeth’s red shirt, and Petitioner’s blue jeans. He maintains that significantly, 

Petitioner’s blue jeans did not test positive for LeadFree, as Corporal White told the 

grand jury. Rather, they tested positive for “lead wipe” and Mr. Cochran, the State 

Forensic Lab examiner, testified that, “I did find lead wipe around those defects to show 

that those were consistent with the passage of a bullet.” Petitioner argues that contrary to 

the grand jury testimony of Corporal White, Mr. Cochran testified that the substance 

identified on Petitioner’s blue jeans was not a substance used to wipe off lead or gun 

powder residue. 

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Third, Petitioner alleges that Corporal White’s representation that Petitioner 

“shot himself in the leg to try and make himself look like a victim” was willfully and 

intentionally fraudulent because this theory was not supported by the evidence presented 

at trial. Fourth, Petitioner contends that Corporal White’s testimony concerning 

Petitioner’s alleged motive that he did not want Elizabeth to divorce him and statements 

related to a domestic violence protective order that was initially obtained but 

subsequently dropped by Elizabeth were also misrepresentations. Petitioner also alleges 

that the basis for the reinvestigation of this case was based upon a false representation 

made by the prosecuting attorney of Nicholas County in a letter indicating that new 

evidence had been discovered when Corporal White testified during the grand jury 

hearing that no such evidence was discovered or pursued by him. In response, the State 

asserts that Petitioner failed to make a prima facie showing of fraud. 

“Our standard of review of a motion to dismiss an indictment is generally 

de novo.” State v. Davis, 205 W.Va. 569, 578, 519 S.E.2d 852, 861 (1999). The wellsettled rule in West Virginia is that “[e]xcept for willful, intentional fraud the law of this 

State does not permit the court to go behind an indictment to inquire into the evidence 

considered by the grand jury, either to determine its legality or its sufficiency.” Syllabus, 

Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977). 

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In State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989), 

we observed that: 

Criminal defendants have frequently sought to challenge the 

validity of grand jury indictments on the ground that they are 

not supported by adequate or competent evidence. (citations 

omitted). This contention, however, often runs counter to the 

function of the grand jury, which is not to determine the truth 

of the charges against the defendant, but to determine whether 

there is sufficient probable cause to require the defendant to 

stand trial. (citations omitted). 

Pinson at 665, 383 S.E.2d at 847. Thus, we have held that: “‘[m]ost courts hold that as a 

general rule, a trial court should not grant a motion to dismiss criminal charges unless the 

dismissal is consonant with the public interest in the fair administration of justice.’ Syl. 

Pt. 12, in part, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782, 786 (1984).” Id. at Syl. 

Pt. 4. Furthermore, 

“[D]ismis[s]al of [an] indictment is appropriate only ‘if it is 

established that the violation substantially influenced the 

grand jury’s decision to indict’ or if there is ‘grave doubt’ that 

the decision to indict was free from substantial influence of 

such violations.” Bank of Nova Scotia v. United States, 487 

U.S. 250, 261-62, 108 S.Ct. 2369, 101 L.Ed.2d 228, 238 

(1988) (citing United States v. Mechanik, 475 U.S. 66, 78, 

106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986) (O’Connor, J., 

concurring)). 

Id. at Syl. Pt. 6. See also State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975); State v. 

Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966). Moreover, “[t]he mere fact that some 

illegal or improper evidence has been received before the grand jury. . . will not 

invalidate an indictment where other legal evidence was received in its support.” State v. 

Clark, 64 W. Va. 625, 63 S.E. 402, 403 (1908). 

21
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The question before this Court is whether Petitioner made a prima facie 

case that such fraud occurred before this grand jury. With respect to Corporal White’s 

comment related to the bullet hole in the bathroom floor and his representation that 

Petitioner shot himself in the leg in an effort to deceive law enforcement, these 

statements are not fraudulent simply because they are inconsistent with statements of the 

accused. As previously stated, the issue of whether the hole in the bathroom floor was 

actually caused by a bullet was in dispute at trial. Although Mr. Cochran, the State’s 

firearms expert, could not confirm the presence of chemical residue demonstrating that 

the hole was caused by a bullet, he testified that the damage to the wood and the size of 

the hole were not inconsistent with having been caused by a bullet. He stated that if a 

bullet had passed through carpet or padding before going through the wood, any of the 

residues that he would have been looking for would have been removed, and thus, he did 

not rule out the possibility that the hole in the bathroom floor was caused by a bullet. 

Additionally, the other evidence introduced before the grand jury concerning the lack of 

blood spatter on the front porch and the location of the blood trails and pools at the crime 

scene supported the State’s theory that Petitioner was attempting to cover up his 

involvement. Accordingly, Petitioner has failed to establish that these statements were 

fraudulent. 

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In addition, with respect to Corporal White’s statement that Elizabeth 

obtained a domestic violence petition in April of 2007 against her husband in which she 

stated a genuine fear for her life, the fact that she stated in a subsequent family court 

hearing that she was “more angry than fearful” when she initially filed the petition and 

ultimately asked the family court judge not to issue a protective order does not make her 

initial statements in the petition irrelevant. This Court has recognized that “domestic 

violence cases inherently present a combination of circumstances that obstruct, yet 

simultaneously intensify the need for, successful criminal prosecutions: low victim 

cooperation and high same-victim recidivism.” State v. Mechling, 219 W. Va. 366, 379, 

633 S.E.2d 311, 324 (2006) (citing Tom Lininger, “Prosecuting Batterers after 

Crawford,” 91 Va.L.Rev. 747, 768–71 (2005)). For example, “[a]ccording to one recent 

estimate, eighty to ninety percent of domestic violence victims who appeal to the criminal 

justice system for help recant or otherwise fail to assist the prosecution at some point in 

the proceedings.” Id. (quoting Lininger, 91 Va.L.Rev. at 768 n. 103; Douglas E. Beloof 

& Joel Shapiro, “Let the Truth Be Told: Proposed Hearsay Exceptions to Admit 

Domestic Violence Victims’ Out of Court Statements as Substantive Evidence,” 11 

Colum. J. Gender & L., 1, 3 (2002)). Moreover, Corporal White explained to the grand 

jury that Elizabeth subsequently dropped the domestic violence petition. Thus, White’s 

statements about the domestic violence petition were not fraudulent. 

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Likewise, Corporal White did not lie or misrepresent to the grand jury that 

Petitioner knew that Elizabeth was planning to divorce him. The following exchange 

occurred between the prosecutor and Corporal White during the grand jury proceeding: 

Q: And that this was a premeditated murder in your opinion 

based on his finding out that she was planning to divorce or 

separation (sic)? 

A: Yes, sir. I’m not sure exactly what caused this. I don’t 

know if he knew about the divorce or not. To my knowledge, 

he still doesn’t know that we discovered the divorce papers. 

What makes me as a police officer believe that it was a 

premeditated killing is the great steps he has taken in the last 

six and a half years to conceal what happened on that front 

porch. 

Thus, Petitioner fails to show how Corporal White’s statements regarding Petitioner’s 

alleged motive to kill Elizabeth were fraudulent. 

With respect to Corporal White’s statement that Petitioner’s pants tested 

positive for LeadFree, he told the grand jury: 

[Petitioner’s] pants was cut off him . . . They was collected by 

our crime scene team, and they was sent to our lab, and . . . 

they tested negative for gunshot residue. What they did test 

positive for, however, was something our crime lab referred 

to as LeadFree. Anybody that hunts and has firearms, you 

have to clean those firearms, do you not? . . . Again, I’m no 

expert, but my cleaning solvents . . . contains a substance 

called LeadFree.” 

The State contends that given the technical nature of the term “lead wipe,” and taking 

into account both White’s admission that he is not a ballistics expert and his considerable 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

familiarity with firearms in general as a police officer and hunter, it is understandable that 

he might misconstrue this particular piece of evidence. 

The characterization of this evidence was undoubtedly incorrect. Despite 

this, “the mere fact that some illegal or improper evidence has been received before the 

grand jury . . . will not invalidate an indictment where other legal evidence was received 

in its support.” Clark, 64 W. Va. at 625, 63 S.E. at 403; see also United States v. Estes, 

793 F.2d 465, 466 (2d Cir. 1986) (holding that “the mere fact that some incompetent or 

privileged testimony is heard by a . . . grand jury” will not “invalidate an indictment 

returned by it”); State v. Bonham, 184 W. Va. 555, 558, 401 S.E.2d 901, 904 (1990) 

(holding that “although the Court believes that the chief investigating officer’s testimony 

was improper, the State did introduce substantial legal and competent evidence upon 

which the grand jury reasonably could have found the indictment against the defendant” 

and therefore the Court “cannot conclude that the testimony of the chief investigating 

officer was so prejudicial as to invalidate the indictment”). 

Despite the fact that Corporal White’s testimony concerning LeadFree was 

incorrect, this statement alone was not so prejudicial as to invalidate the indictment. 

There was other substantial and legal evidence presented to the grand jury upon which it 

could have indicted Petitioner, including: (1) the projectile track of the bullet wounds on 

Elizabeth’s body being inconsistent with Petitioner’s description of the incident; (2) the 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

lack of blood spatter, although there was a pool of blood underneath where Elizabeth laid 

on the porch; (3) the lack of any blood spatter on the porch where Petitioner stated he was 

shot and no path of blood was found where Petitioner stated that he turned toward the 

door; (4) the existence of blood leading from the bathroom to the porch where Petitioner 

met police; and (5) the fact that Petitioner told police that the shot that wounded him 

came approximately twenty seconds after the shot that killed Elizabeth, although multiple 

other witnesses told police that they heard shots several minutes apart. This evidence 

was substantially similar to the evidence eventually presented at trial. Thus, the incorrect 

evidence did not substantially influence the decision to indict. Pinson at Syl. Pt. 6. 

Accordingly, we conclude that the circuit court’s denial of Petitioner’s motion to dismiss 

the indictment was proper. 

B. Admission of Evidence Regarding Prior Domestic Violence and Marital Discord 

Petitioner challenges the circuit court’s admission of evidence regarding 

prior domestic violence and marital discord. We will discuss each of these types of 

evidence in turn. 

i. Testimony Regarding Incident on April 22, 2007 

Both Michelle and Catherine testified about the events on April 22, 2007, 

when Michelle borrowed Petitioner’s car and Elizabeth spoke with both her sister and 

daughter by telephone because she was concerned that Petitioner would be angry. 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Michelle testified that she heard Petitioner threaten to kill Elizabeth while the two were 

on the phone that day. The circuit court found that (1) this evidence was intrinsic and not 

too remote in time to be considered because it occurred close in time to Elizabeth’s 

murder and was reflective of the violent relationship between her and Petitioner; and (2) 

the statements made by Elizabeth to Michelle and Catherine regarding the events 

occurring on April 22, 2007, were “out-of-court statements made by someone other than 

the declarant while testifying” but were nevertheless admissible at trial because they were 

not offered for the truth of the matter asserted, but were rather admitted solely for the 

purpose of showing Elizabeth’s state of mind and the reasonableness of her actions in 

fleeing her home, calling 911 and obtaining a domestic violence protective order. The 

circuit court determined that alternatively, the statements fell within the present sense 

impression exception to the hearsay rule under Rule 803(1) of the West Virginia Rules of 

Evidence.8 

8 Additionally, the circuit court ruled that the testimony of Michelle and Catherine 

did not violate the Confrontation Clause. Petitioner asserts that he disagrees with the 

circuit court’s determination on this issue, however, he fails to set forth any reasoning 

supporting this assertion. Because Petitioner fails to develop this argument, we will not 

address it on appeal. State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) 

(“Although we liberally construe briefs in determining issues presented for review, issues 

which are not raised, and those mentioned only in passing [which] are not supported with 

pertinent authority, are not considered on appeal.” (emphasis added) (citation omitted)); 

see also Ohio Cellular RSA Ltd. P’ship v. Bd. of Pub. Works of W.Va., 198 W.Va. 416, 

424 n. 11, 481 S.E.2d 722, 730 n. 11 (1996) (refusing to address issue on appeal that had 

not been adequately briefed). 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitioner first asserts that the circuit court’s ruling that the events of April 

22, 2007, were intrinsic was erroneous because the testimony presented at the evidentiary 

hearing and trial was that Elizabeth subsequently recanted the allegations and statements 

she had made to the State’s witnesses in filing a domestic violence protective order. 

Moreover, when questioned by the family law judge about seeking to voluntarily dismiss 

the domestic violence petition, Elizabeth stated that she was simply “angry”, rather than 

fearful, at the time of the complaint. Petitioner likewise asserts that the circuit court 

erroneously concluded that evidence of the events on April 22, 2007, was inextricably 

intertwined with the crime charged and was therefore admissible, as this was an isolated 

incident. 

“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. 1, State 

v. Varlas, 237 W.Va. 399, 787 S.E.2d 670 (2016) (citing Syl. Pt. 4, State v. Rodoussakis, 

204 W.Va. 58, 511 S.E.2d 469 (1998)). With respect to a trial court’s determination that 

evidence is intrinsic, this Court has explained that: 

Our cases have “consistently held that evidence which 

is ‘intrinsic’ to the indicted charge is not governed by Rule 

404(b).” State v. Harris, 230 W.Va. 717, 722, 742 S.E.2d 

133, 138 (2013). In [State v.] LaRock, [196 W.Va. 294, 470 

S.E.2d 613 (1996)], we noted that other bad acts “evidence is 

intrinsic when the evidence of the other act and the evidence 

of the crime charged are ‘inextricably intertwined’ or both 

acts are part of a ‘single criminal episode’ or the other acts 

were necessary preliminaries to the crime charged.” LaRock, 

196 W.Va. at 312 n. 29, 470 S.E.2d at 631 n. 29 (internal 

28 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

quotations and citation omitted). In Syllabus point 3 of State 

v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), 

overruled on other grounds by State v. Kopa, 173 W.Va. 43, 

311 S.E.2d 412 (1983), we held: 

Events, declarations and circumstances which 

are near in time, causally connected with, and 

illustrative of transactions being investigated 

are generally considered res gestae and 

admissible at trial. 

State v. McKinley, 234 W. Va. 143, 155, 764 S.E.2d 303, 315 (2014). We have further 

held that: 

If the proffer fits into the “intrinsic” category, evidence of 

other crimes should not be suppressed when those facts come 

in as res gestae—as part and parcel of the proof charged in 

the indictment. See United States v. Masters, 622 F.2d 83, 86 

(4th Cir. 1980) (stating evidence is admissible when it 

provides the context of the crime, “is necessary to a ‘full 

presentation’ of the case, or is . . . appropriate in order ‘to 

complete the story of the crime on trial by proving its 

immediate context or the “res gestae”’”). (Citations omitted). 

State v. Bowling, 232 W. Va. 529, 547, 753 S.E.2d 27, 45 (2013)(quoting LaRock, 196 

W. Va. at 312 n.29, 470 S.E.2d at 631 n.29). 

As the circuit court properly determined, in the six months leading up to her 

death, Elizabeth’s relationship with Petitioner was “marked by a pattern of domestic 

violence, marital discord and threats of violence,” and the events on April 22, 2007, were 

“illustrative of that relationship and not too remote in time to be intrinsic.” Because the 

State’s theory of the case was that marital issues and domestic violence between 

Petitioner and Elizabeth provided his motive to kill her, the circuit court properly 

29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

determined that testimony of Michelle and Catherine regarding the events on April 22, 

2007 demonstrated the motive and setup of the crime and was “necessary to a full 

presentation of the case, . . . [and] is appropriate in order ‘to complete the story of the 

crime on trial . . . .’”9 Id. 

With respect to the circuit court’s hearsay ruling, Petitioner asserts that the 

circuit court erroneously concluded that the statements made by Elizabeth to Michelle 

and Catherine were admissible at trial because the State’s purpose in admitting such 

evidence showed Elizabeth’s state of mind and the reasonableness of Elizabeth’s actions. 

Petitioner asserts that because Elizabeth testified that she was simply angry with 

Petitioner when she sought the domestic violence protective order, seeking such an order 

was certainly “not reasonable” under any analysis. Petitioner further contends that in 

order to determine that this testimony constituted a present sense impression Rule 803(1) 

of the West Virginia Rules of Evidence, the circuit court had to erroneously disregard this 

evidence and also ignore the openly hostile relationship between Michelle and Petitioner 

as well as her sketchy recollections on the events that she testified about. 

9 The trial court also ruled in the alternative that if it had not found the evidence to 

be intrinsic it would have been properly admitted under Rule 404(b) of the West Virginia 

Rules of Evidence to show motive and intent to kill. 

30
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hearsay is defined in the West Virginia Rules of Evidence as “a statement, 

other than one made by the declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” W. Va. R. Evid. 801(c). Ordinarily, 

hearsay is inadmissible. W. Va. R. Evid. 802. This Court has held that: 

“Generally, out-of-court statements made by someone 

other than the declarant while testifying are not admissible 

unless: 1) the statement is not being offered for the truth of 

the matter asserted, but for some other purpose such as 

motive, intent, state-of-mind, identification or reasonableness 

of the party’s action; 2) the statement is not hearsay under the 

rules; or 3) the statement is hearsay but falls within an 

exception provided for in the rules.” Syl. Pt. 1, State v. 

Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990). 

Syl. Pt. 3, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010). 

Based on the evidence presented in this case, we conclude that the circuit 

court did not abuse its discretion in determining that the statements made by Elizabeth to 

Michelle and Catherine regarding the incidents occurring on April 22, 2007, were 

admissible because they were not offered for the truth of the matter asserted, but were, 

rather admitted solely for the purpose of showing Elizabeth’s state of mind. Because the 

statements were used for that limited purpose, they did not constitute inadmissible 

hearsay. 

Moreover, as the lower court alternatively recognized, Elizabeth’s 

comments to Michelle and Catherine were made when she was describing the ongoing 

31
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

events that led her decision to seek a domestic violence protective order. Thus, these 

comments, even if hearsay, would have still been admissible under the “present sense 

impression” exception in Rule 803(1) of the West Virginia Rules of Evidence, which 

provides that “[a] statement describing or explaining an event or condition made while 

the declarant was perceiving the event or condition, or immediately thereafter” is not 

excluded by the hearsay rule. Id. 

This Court has stated that: 

It is within a trial court’s discretion to admit an out-of-court 

statement under Rule 803(1), the present sense impression 

exception, of the West Virginia Rules of Evidence if: (1) The 

statement was made at the time or shortly after an event; (2) 

the statement describes the event; and (3) the event giving 

rise to the statement was within a declarant’s personal 

knowledge. 

Syl. Pt. 4, State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995), overruled on other 

grounds by State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013). 

In properly considering the factors outlined in Phillips, the circuit court 

noted that (1) the statements made by Elizabeth were directly after the occurrence of the 

incident of domestic violence; (2) the statements described the event; and (3) the event 

giving rise to the statement was within Elizabeth’s personal knowledge. See id. 

Accordingly, we conclude that the circuit court’s admission of this testimony was not an 

abuse of discretion. 

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ii. Testimony Regarding Incidents in November 2006 and March 2007 

The circuit court also addressed the State’s request to admit testimony 

regarding some alleged incidents of domestic violence allegedly witnessed by Michelle in 

November 2006 and March 2007. Specifically, Michelle testified that she witnessed a 

physical altercation between Petitioner and Elizabeth in November 2006 when she pulled 

up in the driveway and saw Petitioner grab Elizabeth’s arms “and stuff” and hit her in the 

arm “a couple times.” Michelle testified that she did not intervene but, instead, sat in her 

car in the driveway. She also testified about another incident that occurred in March 

2007 involving an altercation that was related to one of Petitioner’s sons. Michelle 

testified that there was a lot of yelling during the incident and that she witnessed 

Petitioner shove Elizabeth before the couple continued back into another room and shut 

the door. 

The circuit court determined that Michelle’s testimony regarding these 

incidents of domestic violence in November 2006 and March 2007 were admissible, but 

that they were too remote to be intrinsic, as they occurred seven to eleven months before 

Elizabeth’s death. Accordingly, the circuit court conducted an analysis under Rule 

404(b) of the West Virginia Rules of Evidence and determined that these prior incidents 

were relevant to show motive and intent to kill Elizabeth, that the incidents were reliable 

and highly probative of the relationship between Petitioner and Elizabeth, and that the 

33
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

probative value of this evidence outweighed any danger of unfair prejudice under Rule 

403. 

Petitioner asserts that the probative value of this proposed evidence is 

substantially outweighed by the danger of unfair prejudice because it was duplicative and 

cumulative of the testimony concerning the incident that took place on April 22, 2007. 

He additionally argues that while Michelle presented testimony concerning the parties’ 

arguments over petty things, the trial court made a significant leap when it characterized 

these incidents as violence inflicted upon her. Further, as to the court’s finding that these 

statements tended to show Petitioner’s motive and intent, he contends that there is no 

evidence in the record of the June 12, 2015 hearing, nor of the trial, that he had any 

knowledge as to the existence of the divorce packet or of any plans that Elizabeth had of 

pursuing a divorce. 

With respect to the standard applicable to our review of a Rule 404(b) 

ruling, we held in LaRock that: 

The standard of review for a trial court’s admission of 

evidence pursuant to Rule 404(b) involves a three-step 

analysis. First, we review for clear error the trial court’s 

factual determination that there is sufficient evidence to show 

the other acts occurred. Second, we review de novo whether 

the trial court correctly found the evidence was admissible for 

a legitimate purpose. Third, we review for an abuse of 

discretion the trial court’s conclusion that the “other acts” 

evidence is more probative than prejudicial under Rule 403. 

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Larock at 310, 470 S.E.2d at 620 (footnotes and citations omitted). In syllabus point one 

of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), we held that: 

When offering evidence under Rule 404(b) of the West 

Virginia Rules of Evidence, the prosecution is required to 

identify the specific purpose for which the evidence is being 

offered and the jury must be instructed to limit its 

consideration of the evidence to only that purpose. It is not 

sufficient for the prosecution or the trial court merely to cite 

or mention the litany of possible uses listed in Rule 404(b). 

The specific and precise purpose for which the evidence is 

offered must clearly be shown from the record and that 

purpose alone must be told to the jury in the trial court’s 

instruction. 

Id. at Syl. Pt. 1. We have provided the following guidance for how a trial court must 

consider proposed Rule 404(b) evidence: 

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 

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that it be repeated in the trial court’s general charge to the 

jury at the conclusion of the evidence. 

Id. at Syl. Pt. 2. We have further explained that: 

It is presumed a defendant is protected from undue prejudice 

if the following requirements are met: (1) the prosecution 

offered the evidence for a proper purpose; (2) the evidence 

was relevant; (3) the trial court made an on-the-record 

determination under Rule 403 of the West Virginia Rules of 

Evidence that the probative value of the evidence is not 

substantially outweighed by its potential for unfair prejudice; 

and (4) the trial court gave a limiting instruction. 

Syl. Pt. 3, LaRock, 196 W.Va. 294, 470 S.E.2d 613. 

In the present case, the trial court conducted an in camera hearing on June 

12, 2015, and heard the proposed evidence of alleged prior abuse. The circuit court’s 

order, which thoroughly analyzes each of the factors required in McGinnis, made the 

proper determination that evidence that Petitioner previously abused Elizabeth would 

have the tendency to make it more probable that Petitioner intended to and did cause her 

death, and therefore, it was relevant to show his motive or intent. 

In LaRock, we elaborated on the importance of evidence of prior violence 

in a murder prosecution: 

The theory underlying the introduction of evidence regarding 

a prior violent relationship in a murder prosecution is not that 

the assailant is a bad person and that bad people are likely to 

commit the charged offense. It is precisely this train of 

thought that Rule 404 prohibits. Instead, the theory under 

which such evidence is allowed arises from the idea that, 

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when a defendant has demonstrated the same type of violence 

towards a victim on a recent occasion, it is probative of his or 

her intent, motive, malice, and premeditation. Thus, in the 

present case, the prosecutor understandably attempted to 

demonstrate some prior animosity to explain why the accused 

had a motive to do the illegal acts charged in the indictment. . 

. . . Not only is evidence of the prior relationship between the 

defendant and his deceased son relevant, it also is considered 

crucial evidence in proving premeditation. 

Id. at 311-12 n.27, 470 S.E.2d at 631 n.27 (emphasis added). Thus, the fact that 

Petitioner had demonstrated the same type of violence toward Elizabeth on a recent 

occasion was relevant and highly probative of the nature of their relationship and 

Petitioner’s motive and intent, and weighing those factors in favor of admissibility, the 

circuit court’s determination that the probative value of this evidence outweighed any 

danger of unfair prejudice was not an abuse of discretion. Id. at 312, 470 S.E.2d at 631. 

For these reasons, we conclude that this testimony was neither unfair nor duplicative in 

nature. In addition, while the jury heard Michelle’s testimony regarding the fact that 

Elizabeth planned to divorce Petitioner, Petitioner vehemently denied any knowledge of 

her plans in closing arguments and the jury heard evidence that the divorce packet had 

been hidden under the seat covers in Elizabeth’s vehicle. The jury weighed all of this 

evidence accordingly. Thus, the circuit court’s admission of this testimony was not an 

abuse of discretion. 

iii. Testimony Regarding Marital Discord 

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The circuit court next addressed the State’s request to introduce evidence of 

the marital relationship between Petitioner and Elizabeth. Michelle and Catherine offered 

testimony regarding other marital problems between the couple, the history of their 

relationship, and Petitioner’s controlling behavior. However, because their testimony 

covered issues that arose as early as 2001 through 2005, the circuit court determined that 

historical relationship evidence was too remote in time to be admissible as extrinsic 

evidence. 

Michelle also offered relationship testimony related closer in time to 

Elizabeth’s death. She testified regarding arguments during the summer of 2007 over 

petty things, Elizabeth’s plans to divorce Petitioner, and the divorce packet that she and 

Elizabeth picked up. The circuit court determined that Michelle’s testimony regarding 

their relationship during the six months preceding Elizabeth’s death was relevant and 

admissible as intrinsic evidence, concluding that “‘it seem[ed] doubtful that this case 

could [be] appropriately presented without such sufficient background information.’ 

State v. Dennis, 216 W. Va. 331, 352, 607 S.E.2d 437, 458 (2004)” and was necessary to 

“‘complete the story of the violence [Petitioner] inflicted upon her.’ State v. McKinley, 

234 W. Va. 143, 764 S.E.2d 303, 316 (2014).” The circuit court also concluded that 

these statements were non-testimonial in nature and did not constitute inadmissible 

hearsay because they were admitted for the purpose of showing Petitioner’s motive and 

intent, and Elizabeth’s state of mind. Petitioner asserts that this testimony was 

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duplicative and cumulative and that these incidents were not indicative of any violence 

inflicted upon her. However, for the reasons stated by the circuit court, we conclude that 

the circuit court’s admission of these statements was not an abuse of discretion. 

Accordingly, we affirm the circuit court’s ruling on this issue. 

C. Refusal to Give Instruction on Lesser Included Offenses 

Petitioner alleges that the circuit court failed to instruct the jury on the 

lesser-included offenses of second degree murder, voluntary manslaughter, and 

involuntary manslaughter. Although Petitioner alleges that he requested these 

instructions at trial, he admits that the record reveals no such request and that counsel did 

not submit such proposed jury instructions to the trial court. Accordingly, Petitioner 

alleges that this was plain error as contemplated by Rules 30 and 52(b) of the West 

Virginia Rules of Criminal Procedure. This Court has held that: 

The plain error doctrine contained in Rule 30 and Rule 

52(b) of the West Virginia Rules of Criminal Procedure is 

identical. It enables this Court to take notice of error, 

including instructional error occurring during the 

proceedings, even though such error was not brought to the 

attention of the trial court. However, the doctrine is to be used 

sparingly and only in those circumstances where substantial 

rights are affected, or the truth-finding process is substantially 

impaired, or a miscarriage of justice would otherwise result. 

Syl. Pt. 4, State v. England, 180 W. Va. 342, 376 S.E.2d 548 (1988). This Court has held 

that, generally: 

“The question of whether a defendant is entitled to an 

instruction on a lesser included offense involves a two-part 

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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). 

Syl. Pt. 3, State v. Wilkerson, 230 W. Va. 366, 738 S.E.2d 32 (2013). 

As to the first inquiry identified in Wilkerson, there is no question that 

second degree murder, voluntary manslaughter, and involuntary manslaughter are lesser 

included offenses of murder. See W. Va. Code §§ 61-2-1 through 61-2-5 (2014). With 

respect to the second inquiry, we must determine whether there was sufficient evidence 

introduced at trial to support a verdict on one of the lesser-included offenses. “‘Jury 

instructions on possible guilty verdicts must only include those crimes for which 

substantial evidence has been presented upon which a jury might justifiably find the 

defendant guilty beyond a reasonable doubt.’ Syl. pt. 5, State v. Demastus, 165 W.Va. 

572, 270 S.E.2d 649 (1980).” Syl. Pt. 1, State v. Leonard, 217 W. Va. 603, 619 S.E.2d 

116 (2005). “When there is no evidence to support giving a particular instruction the trial 

court is not obligated to give that instruction.” State v. Sapp, 207 W. Va. 606, 615, 535 

S.E.2d 205, 214 (2000). 

We conclude that in this case, there was no evidence to support giving an 

instruction on these lesser included offenses because Petitioner presented an identity of 

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the shooter defense. In doing so, Petitioner did not present any evidence from which the 

jury could have concluded that Petitioner killed Elizabeth without premeditation. Nor did 

he claim that he was suddenly provoked by something Elizabeth said or did. See e.g., 

Sapp, 207 W. Va. at 615, 535 S.E.2d at 214 (“The defendant does not claim he was 

suddenly provoked by something [the victim] said or did; he claims he did not kill him, 

[someone else] did. Based upon this evidence, an instruction on voluntary manslaughter 

was not warranted.”). The State offered ample evidence of premeditation and deliberation 

in demonstrating that Petitioner had committed prior acts of violence against Elizabeth, 

that Elizabeth had planned to divorce Petitioner, and that Petitioner had threatened to kill 

her if she tried to leave him. Because there was no evidence relating to second-degree 

murder or manslaughter introduced at trial, the circuit court was not required to give an 

instruction on lesser-included offenses and its failure to do so was not plain error. 

D. Sufficiency of the Evidence 

Petitioner alleges that the circuit court erred in denying his motion for 

judgment of acquittal because the evidence presented by the State was insufficient to 

convince a reasonable jury that Petitioner was guilty beyond a reasonable doubt. 

Specifically, he asserts that despite the State’s theory that Petitioner shot Elizabeth and 

then shot himself in the bathroom, no gunshot residue, flashing or stippling was found on 

either Petitioner or Elizabeth, and there was no mixing or crossing of the locations where 

Petitioner and Elizabeth’s blood was found. He also maintains that (1) none of the 

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alleged bullet holes were confirmed to be bullet holes; (2) no one was seen coming or 

leaving the residence around the time of the shooting; and (3) although multiple officers 

were in exclusive possession of the crime scene for eight hours conducting an extensive 

investigation using metal detectors, none of this evidence that the law enforcement 

officers presented at trial implicated Petitioner. Furthermore, he contends that the State 

failed to establish any motive to kill his wife, as one incident of domestic violence six 

months prior to the murder wherein she later recanted her statements, and a couple of 

other arguments, did not establish motive. In response, the State contends that it is 

evident from the record that the State introduced more than enough direct evidence 

related to Petitioner’s willingness to harm Elizabeth, and a copious amount of 

circumstantial evidence from which a jury could infer that Petitioner shot her. 

We apply a de novo standard of review to the denial of a motion for 

judgment of acquittal based upon the sufficiency of the evidence. LaRock, 196 W.Va. at 

304, 470 S.E.2d at 623. With regard to the standard of review applied to challenges to 

the sufficiency of the evidence, this Court has explained as follows: 

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. 

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Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Accordingly, we 

have held that: 

A criminal defendant challenging the sufficiency of the 

evidence to support a conviction takes on a heavy burden. An 

appellate court must review all the evidence, whether direct 

or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility 

assessments that the jury might have drawn in favor of the 

prosecution. The evidence need not be inconsistent with every 

conclusion save that of guilt so long as the jury can find guilt 

beyond a reasonable doubt. Credibility determinations are for 

a jury and not an appellate court. Finally, a jury verdict 

should be set aside only when the record contains no 

evidence, regardless of how it is weighed, from which the 

jury could find guilt beyond a reasonable doubt. To the extent 

that our prior cases are inconsistent, they are expressly 

overruled. 

Id. at Syl. Pt 3 (emphasis added). In emphasizing the necessity to view all evidence in 

the light most favorable to the prosecution and to resolve all evidentiary conflicts in favor 

of the prosecution, we have stated: 

When a criminal defendant undertakes a sufficiency 

challenge, all the evidence, direct and circumstantial, must be 

viewed from the prosecutor’s coign of vantage, and the 

viewer must accept all reasonable inferences from it that are 

consistent with the verdict. This rule requires the trial court 

judge to resolve all evidentiary conflicts and credibility 

questions in the prosecution’s favor; moreover, as among 

competing inferences of which two or more are plausible, the 

judge must choose the inference that best fits the 

prosecution’s theory of guilt. 

Syl. Pt. 2, LaRock, 196 W.Va. 294, 470 S.E.2d 613. 

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This Court has previously ruled that we may accept any adequate evidence, 

including circumstantial evidence, as support for a conviction. Guthrie, 194 W.Va. at 

668, 461 S.E.2d at 174. It was noted in Guthrie that: 

Circumstantial evidence . . . is intrinsically no different from 

testimonial evidence. Admittedly, circumstantial evidence 

may in some case point to a wholly incorrect result. Yet this 

is equally true of testimonial evidence. In both instances, a 

jury is asked to weigh the chances that the evidence correctly 

points to guilt against the possibility of inaccuracy or 

ambiguous inference. In both, the jury must use its experience 

with people and events in weighing the probabilities. If the 

jury is convinced beyond a reasonable doubt, we can require 

no more. 

Id. at 668, 461 S.E.2d at 174 (quoting Holland v. United States, 348 U.S. 121, 139-40 

(1954)). 

In the case at bar, the State introduced significant evidence from which a 

rational jury could have relied in order to satisfy the elements of first-degree murder. The 

State introduced evidence sufficient to prove the elements of malice and premeditation, 

including various threats the Petitioner made toward Elizabeth, their history of violence, 

and Elizabeth’s plans to divorce Petitioner. 

Furthermore, the State provided ample evidence to implicate Petitioner 

circumstantially and to discredit his version of the events. The State’s trajectory expert 

and the medical examiner opined that based upon the location of Elizabeth’s entry and 

exit wounds, it was virtually impossible for Elizabeth to have been shot in the manner in 

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which Petitioner claimed at the time of the shooting. Additionally, the State presented 

undisputed testimony regarding the lack of a blood trail on the front porch and the lack of 

blood on any furniture or walls, along with the existence of blood leading from the 

interior bathroom and bedroom to the front door. Unexplainably, the two bullets that 

were recovered from the scene had no human blood or DNA on them. This evidence, 

combined with all of the witness testimony regarding whether the hole in the bathroom 

floor was actually a bullet hole, and the heavy amount of Petitioner’s blood found in the 

bathroom, all circumstantially implicated the Petitioner. 

The jury heard the testimony of Petitioner’s crime scene reconstruction and 

ballistics expert, Mark McMillian, who countered the State’s experts’ opinions and 

provided his own opinions regarding the manner in which the responding officers 

investigated the crime scene, gunshot range and distance determinations, and gunshot 

residue testing, among other things, and the jury weighed all of this evidence accordingly. 

Additionally, the jury heard a great deal of testimony from various witnesses in and 

around the elementary school that day concerning the gunshots that they heard and the 

fact that they all remembered hearing the second gunshot approximately five minutes 

after the first gunshot. 

Moreover, although Petitioner argues that no gunshot residue was found on 

Petitioner’s hands, the State introduced evidence that the bathroom sink was wet and 

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Petitioner’s hands were noticeably clean when he emerged from his home after the arrival 

of emergency personnel. The jury also heard evidence that directly following the 

incident, Petitioner asked to have his hands tested for gunshot residue to demonstrate that 

he “didn’t shoot no gun.” Further, Petitioner called Sergeant Lilly’s attention to a bullet 

hole located on the front of the house as he was lying on his back while paramedics 

prepared to transport him from the scene. 

All of this evidence supported the State’s theory that Petitioner took efforts 

to cover up his involvement, clean the gunshot residue off of his hands, and then bring his 

lack of gunshot residue to the attention of law enforcement, and these were all credibility 

determinations that the jury properly made. Based upon the evidence presented, we find 

no error in the circuit court’s conclusion that the evidence was sufficient to support the 

jury’s verdict. 

IV. CONCLUSION 

We affirm the judgment of the Circuit Court of Nicholas County convicting 

Petitioner of first-degree murder and sentencing him to life in prison without the 

possibility of parole. 

Affirmed. 

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