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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 22-0315 (Ohio County CC-35-2019-F-78) 

Bryan O.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Bryan O. appeals the Circuit Court of Ohio County’s March 15, 2022, order 

resentencing him, for purposes of an appeal, following his convictions for three counts of firstdegree sexual assault; two counts of third-degree sexual assault; five counts of sexual abuse by a

parent, guardian, or custodian; and two counts of child abuse resulting in injury.1 Petitioner 

challenges the circuit court’s decision to proceed in his absence on the third day of trial. Upon our 

review, finding no substantial question of law and no prejudicial error, we determine that oral 

argument is unnecessary and that a memorandum decision affirming the circuit court’s order is 

appropriate. See W. Va. R. App. P. 21(c).

The Ohio County Grand Jury returned a twelve-count indictment against petitioner, 

charging him with three counts of first-degree sexual assault; two counts of third-degree sexual 

assault; five counts of sexual abuse by a parent, guardian, or custodian; and two counts of child 

abuse resulting in injury. His three-day jury trial on these charges began on August 18, 2020. The 

State rested on day two of trial, and, after the jury was excused for the day, petitioner and his 

counsel informed the circuit court that, although the two planned to further discuss whether 

petitioner would testify later that evening, the “game plan” at that time was for petitioner to testify 

the following day. 

On day three of trial, however, petitioner failed to appear. Outside the presence of the jury, 

petitioner’s counsel explained to the court that, despite calling petitioner six or seven times, 

counsel had been unable to reach petitioner. Petitioner’s counsel said that petitioner’s phone rang 

when counsel called the “[f]irst three or four times,” but after those attempts, petitioner’s “phone 

was shutoff [sic] and it just went right into voice[mail].” The court responded, “Well, given the 

1 Petitioner appears by counsel Dean E. Williams, and the State appears by Attorney 

General Patrick Morrisey and Assistant Attorney General Mary Beth Niday. Initials are used where 

necessary to protect the identities of those involved in this case. See W. Va. R. App. P. 40(e).

FILED

January 25, 2024

C.CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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magnitude of the multi-count charges, and the evidence that the State has presented against 

[petitioner], the [c]ourt is at a loss as to whether or not [petitioner] has voluntarily absenced [sic] 

himself, he has absconded, or if he has possibly perpetrated harm on himself.” The court directed 

the bailiff to undertake efforts to locate petitioner, and it took a one-hour recess for that purpose. 

Petitioner was not located during that recess, nor did he appear during that time. Upon 

reconvening with petitioner’s counsel and the State, again outside the presence of the jury, the 

court found that, 

especially after yesterday’s hearing, after the trial wherein we were discussing plans 

for today, . . . it would have been abundantly clear to [petitioner] that he needed to 

come today because he was to present his case in chief, and I think there can be no 

reasonable denial of his knowledge that we were proceeding today at 9:00 A.M.

Accordingly, the court concluded that petitioner absented himself, but it was “not in a position to 

say” whether that absence was voluntary because “we have yet to make contact, or actually find 

[petitioner].” 

After making that finding, the court brought the jury back into the courtroom, and the 

defense rested.

2 The jury was again excused for a recess. During that recess, the court learned from 

petitioner’s mother that she had accompanied petitioner shopping that morning. Petitioner’s 

mother also reported that petitioner had since been located “in the woods near a park.” Given these 

circumstances, the court found that petitioner voluntarily absented himself under Rule 43(b)(1) of 

the West Virginia Rules of Criminal Procedure—and petitioner’s counsel did not argue 

otherwise—so the court determined to proceed with trial. Accordingly, the court instructed the 

jury, counsel presented closing arguments, and the jury deliberated, finding petitioner guilty of 

each count charged in the indictment. The court sentenced petitioner to the statutorily prescribed 

indeterminate terms of incarceration, ordered to run consecutively. For purposes of pursuing an 

appeal, the court resentenced petitioner on March 15, 2022, and petitioner now appeals.

In his lone assignment of error, petitioner argues that the court erred in proceeding with

trial in his absence. Petitioner asserts that he did not waive his right to be present, and he challenges 

the court’s decision to proceed without knowing whether his absence was voluntary. Petitioner

further argues that he was prejudiced by the court’s decision because he “could have provided 

substantial benefit to the proceedings.” Because this issue involves interpretation of Rule 43 of the 

West Virginia Rules of Criminal Procedure, our review is plenary. See State v. Sites, 241 W. Va. 

430, 443, 825 S.E.2d 758, 771 (2019) (“The general right of a criminal defendant to be present 

during courtroom proceedings is addressed through the interpretation of the state constitution, a 

Court rule and statute. Consequently, our review of the issue raised in this case is plenary.”).

Rule 43(b) provides that 

2 Before the defense rested, the bailiff called petitioner’s name three times. Petitioner did 

not appear.
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[t]he further progress of the trial to and including the return of the verdict shall not 

be prevented and the defendant shall be considered to have waived the right to be 

present whenever a defendant, initially present . . . [i]s voluntarily absent after the 

trial has commenced (whether or not the defendant has been informed by the court 

of the obligation to remain during the trial). 

(Emphasis added.) Here, petitioner ceased communication with his counsel the night before the 

third day of trial, shopped with his mother in the morning of the third day, then headed for the 

woods instead of the courthouse. Petitioner does not argue that his absence on the third day of trial 

was involuntary, and, unquestionably, the facts surrounding his absence compel the conclusion 

that it was voluntary. That voluntary absence resulted in his waiver of the right to be present on 

the third day of trial. Further, in light of this waiver, and under the facts of this case, we find that 

any error in proceeding with trial for a limited time prior to determining that petitioner’s absence 

was voluntary was harmless. See Sites, 241 W. Va. at 433, 825 S.E.2d at 762, Syl. Pt. 5 (providing 

that violations of Rule 43 are subject to a harmless error analysis).

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 25, 2024

CONCURRED IN BY:

Chief Justice Tim Armstead 

Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn