IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2016 Term 

FILED 

May 20, 2016 No. 14-0919 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. 

DENNY FRANKLIN ERVIN, 

Defendant Below, Petitioner 

Appeal from the Circuit Court of Preston County
 

Honorable Lawrance S. Miller, Jr., Judge
 

Criminal Action No. 12-F-85
 

AFFIRMED
 

Submitted: April 27, 2016
 

Filed: May 20, 2016
 

Michael J. Sharley, Esq. Patrick Morrisey, Esq. 

Westover, West Virginia Attorney General 

and Shannon Frederick Kiser, Esq. 

Richard M. Gutmann, Esq. Assistant Attorney General 

Morgantown, West Virginia Charleston, West Virginia 

Attorneys for Petitioner Attorneys for Respondent 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “In reviewing challenges to findings and rulings made bya circuit court, 

we apply a two-pronged deferential standard of review. We review the rulings of the circuit 

court concerning a new trial and its conclusion as to the existence of reversible error under 

an abuse of discretion standard, and we review the circuit court’s underlying factual findings 

under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. 

Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). 

2. “A motion for a juryview lies peculiarlywithin the discretion of the trial 

court, and, unless the denial of such view works probable injury to the moving party, the 

ruling will not be disturbed.” Syl. Pt. 1, Collar v. McMullin, 107 W.Va. 440, 148 S.E. 496 

(1929). 

3. “The action of a trial court in admitting or excluding evidence in the 

exercise of its discretion will not be disturbed by the appellate court unless it appears that 

such action amounts to an abuse of discretion.” Syl. Pt. 10, State v. Huffman, 141 W.Va. 55, 

87 S.E.2d 541 (1955). 

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4. “A trial court’s evidentiaryrulings, as well as its application of the Rules 

of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State 

v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). 

5. “A jury verdict may not ordinarily be impeached based on matters that 

occur during the jury’s deliberative process which matters relate to the manner or means the 

jury uses to arrive at its verdict.” Syl. Pt. 1, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 

384 (1981). 

6. “‘A motion for a new trial on the ground of the misconduct of a jury is 

addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal 

where it appears that defendant was not injured by the misconduct or influence complained 

of. The question as to whether or not a juror has been subjected to improper influence 

affecting the verdict, is a fact primarily to be determined by the trial judge from the 

circumstances, which must be clear and convincing to require a new trial, proof of mere 

opportunity to influence the jury being insufficient.’ Syllabus Point 7, State v. Johnson, 111 

W.Va. 653, 164 S.E. 31 (1932).” Syl. Pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 

(1995). 

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7. “Failure to make timely and proper objection to remarks of counsel 

made in the presence of the jury, during the trial of a case, constitutes a waiver of the right 

to raise the question thereafter either in the trial court or in the appellate court.” Syl. Pt. 6, 

Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945). 

8. “To trigger application of the ‘plain error’ doctrine, there must be (1) 

an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the 

fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. 

Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). 

9. “An attorney for the state may prosecute vigorously as long as he deals 

fairly with the accused; but he should not become a partisan, intent only on conviction. And, 

it is a flagrant abuse of his position to refer, in his argument to the jury, to material facts 

outside the record, or not fairly deducible therefrom.” Syllabus, State v. Moose, 110 W.Va. 

476, 158 S.E. 715 (1931). 

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LOUGHRY, Justice: 

The petitioner, Denny Franklin Ervin, appeals the June 18, 2014, final order 

of the Circuit Court of Preston County denying his motion for judgment of acquittal or, 

alternatively, a new trial and sentencing him to life in prison for his jury conviction of murder 

in the first degree without a recommendation of mercy and a determinate sentence of five 

years in prison for his jury conviction of wanton endangerment. The circuit court ordered 

that the sentences be served consecutively. 

In this appeal, the petitioner contends the circuit court committed reversible 

error by: (1) not permitting the jury to visit the site of the alleged offenses; (2) excluding 

testimony of one of his witnesses; (3) allowing the jury to consider evidence not presented 

at trial; (4) allowing the State to misrepresent evidence during closing argument; and (5) not 

requiring the State to provide a bill of particulars regarding the alleged use of a firearm. 

Upon consideration of parties’ briefs and arguments, the submitted record, and the pertinent 

authorities, we find no reversible error. Accordingly, the final order of the circuit court is 

affirmed. 

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I. Factual and Procedural Background 

The petitioner was indicted by a Preston County grand juryon October 6, 2012. 

The indictment contained five counts: (1) first degree murder; (2) use of a firearm to commit 

murder; (3) stalking; (4) wanton endangerment involving the use of a firearm; and (5) 

domestic assault. It was alleged that all of the acts occurred on or about May 8, 2012,1 and 

resulted in the death of Leslie Dawn Layman (hereinafter “Ms. Layman” or “victim”).2 The 

record indicates that the petitioner and the victim had an intimate relationship that ended 

sometime prior to May 8, 2012. The petitioner did not deny he shot the victim but asserted 

that he had done so in self-defense. Following a seven-day trial that included testimony from 

more than twenty-five witnesses, the jury returned a verdict on April 17, 2014, finding the 

petitioner guilty of first degree murder as charged in count one of the indictment and wanton 

endangerment involving a firearm as charged in count four of the indictment. The jury also 

found that the petitioner had committed first degree murder using a firearm as charged in 

count two of the indictment. The jury did not recommend mercy with regard to the first 

degree murder conviction. 

1

With respect to the charge of stalking, the indictment alleged that this offense was 

committed from June 2010 through May 2012. 

2

The alleged victims of the wanton endangerment and domestic assault offenses 

charged in counts four and five of the indictment were Ms. Layman’s daughters, who arrived 

at the scene during the shooting. 

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The following summary of the testimony and evidence produced at trial has 

been gleaned from the trial court’s “Opinion Order Following June 5, 2014 Hearing on 

Defendant’s Post-Trial Motions.”3 That order indicates that the State’s case began with the 

testimony of Alberta Curry, the victim’s neighbor, who testified that she observed a white 

Subaru travel past the victim’s home at approximately 7:30 p.m. on May 8, 2012. She 

watched the vehicle proceed further up the road and park out of the sight of the victim’s 

residence. Ms. Curry further testified that a short time later, she heard gunfire, specifically, 

three shots and then one louder shot. Her husband, Roger Curry, testified that he observed 

the petitioner walking by his garage after the shooting. 

The victim’s daughters, Cecillia Layman and Sara Layman, testified that they 

heard gunfire as they exited their car after returning home on the evening of May 8, 2012. 

Cecillia Layman stated that the first shot sounded like it went right past them. As she 

observed her mother going up a trail toward a chicken coop, she heard her say, “Help. I love 

you guys, call the cops.” Thereafter, Cecillia heard the petitioner say, “You’re gonna die, 

mother f***er.” 

3

The parties did not provide a complete trial transcript in the joint appendix submitted 

in this case. 

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The State also presented testimonyfrom several witnesses whom the petitioner 

called immediately after he shot the victim. In particular, Don Spiker testified the petitioner 

called him after the shooting and then brought a white Subaru to Mr. Spiker’s residence, 

stating he no longer needed the vehicle and that he was probably going to prison because he 

shot the “girl down the street.” According to Mr. Spiker, the petitioner attempted to leave 

a pistol with him too, but he refused to accept it. The pistol was later found approximately 

fifty feet from the road near Mr. Spiker’s garage according to the testimony of John Barnett 

of the Mountaineer Area Rescue Group, who assisted in the recovery of the weapon. 

The petitioner’s sister-in-law, Margaret Ervin, testified the petitioner called her 

and told her he was in “bad trouble” because he had shot Ms. Layman twice. Ms. Ervin 

stated that the petitioner seemed “normal” on the telephone and never mentioned anything 

about self-defense in shooting the victim. Mark Atkinson, a friend of the petitioner, testified 

that on the day of the shooting the petitioner told him he had sent a text message telling Ms. 

Layman he was going to kill her. Mr. Atkinson stated he believed at the time that the 

petitioner was just angry. Mr. Atkinson further testified the petitioner later left a message 

on his cellular phone indicating he had shot the victim twice but never mentioned anything 

regarding self-defense. 

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The petitioner’s sister, Linda Soccorsi, testified she received a call from her 

brother sometime after 9:00 p.m. on the night of the shooting. She said the petitioner told her 

he had shot Ms. Layman twice and was going to jail for the rest of his life but gave no 

explanation as to why he shot the victim. According to the testimony of Tammy Belldina, 

the petitioner telephoned her and said he shot Ms. Layman twice, adding he was “tired of 

people messing with him.” 

The State’s evidence also included voice mail messages left by the petitioner 

on the victim’s home telephone answering machine between May 4, 2012, and May 8, 2012. 

The petitioner referred to the victim as a “whore” throughout the messages and mentioned 

a “new man” several times. He also accused Ms. Layman of cheating on him during their 

relationship. 

To support his claim of self-defense, the petitioner called David McMasters 

as a witness during his case-in-chief. Mr. McMasters, who lives approximately fifty yards 

from the Layman residence, testified that he heard several gunshots between 8:20 p.m. and 

8:30 p.m. on the night the victim was killed. He said he heard eight to ten .22 caliber shots 

followed by a single shot from a large-caliber shotgun. He further testified that after hearing 

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the gunshots, he observed Sara Layman drive down to her grandparents’ nearby home. On 

cross-examination, Mr. McMasters testified that the large-caliber round sounded like it was 

shot at the ground. 

The petitioner presented testimony from Robert White, a forensic chemist and 

an expert in the field of gunshot residue analysis. Mr. White testified that he worked for the 

West Virginia State Police Lab for thirty years, holding the position of director of the lab 

during his last three years of employment. After stating that a gunshot residue analysis was 

not performed on the victim, Mr. White voiced his disagreement with the current practice of 

the West Virginia State Police Lab not to test for gunshot residue on a victim. He opined that 

a gunshot residue analysis of the victim would have been probative given the circumstances 

of this case.4 

The petitioner called Rebecca Turner as a witness. Ms. Turner works at a gas 

station in Masontown, West Virginia. She testified that the petitioner came into the station 

4

The State presented testimony from the lead investigator, Former Lieutenant J. Stiles 

of the Preston County Sheriff’s Department. He testified it was raining very hard the night 

the victim was killed and that a critical decision had to be made regarding whether to move 

the body out of the rain or leave it in place for the collection of evidence in the morning after 

the sun came up. Ultimately, the decision to move the body was made although the body had 

been exposed to heavy rain for some period of time before it was moved. In denying the 

petitioner’s motion for acquittal based on alleged insufficiency of the evidence, the circuit 

court concluded that the exposure of the victim’s body to rain may have affected the 

probative value of any gunshot residue analysis if such testing had been performed. 

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between 1:00 and 2:00 p.m. on May 8, 2012, and purchased a thirty-pack of Bud Light beer. 

According to Ms. Turner, the petitioner was in a “normal” mood. 

The petitioner presented testimony from Chad Miller, who is married to the 

petitioner’s niece. Mr. Miller testified that on the day of the shooting, he, his wife, and their 

five-year-old son picked up the petitioner in Masontown and traveled to Pennsylvania to get 

a part for his vehicle. He testified that the petitioner had argued with his son, upsetting his 

wife. On cross-examination, Mr. Miller testified it was like the petitioner had “flipped a 

switch.” He also stated he told the police anything would “piss off” the petitioner. 

The petitioner called Koren Powers as a telephonic witness.5 Ms. Powers is 

the section supervisor of the trace evidence section at the West Virginia State Police Lab. 

Recognized by the trial court as an expert in forensic science, Ms. Powers testified that the 

lab’s general policy is to recommend a gunshot residue kit be utilized on a shooting victim. 

Explaining further, she stated that the test is typically not performed at the lab because the 

victim has been in the environment of a gunshot, making the probative value of any analysis 

low. She added that the location of the victim in relation to the fired weapon and other 

5

By agreement of the parties, Ms. Powers was allowed to testify telephonically 

because she suffered from an illness and travel to Preston County would have been an 

imposition. 

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factors, such as the weapon’s caliber and wind direction, affects whether there is gunshot 

residue on a victim. Ms. Powers testified no request was made to test Ms. Layman’s t-shirt 

for gunshot residue. 

The petitioner called Dr. James L. Frost, the former Deputy Chief Medical 

Examiner in West Virginia, to testify. Recognized by the trial court as an expert in forensic 

pathology, Dr. Frost testified he would always request an opportunity to inspect the victim’s 

clothing for the presence of gunshot residue. He also testified, however, that rain may dilute 

or wash away gunshot residue. He stated that both bullet wounds sustained by Ms. Layman 

indicated a slight upward trajectory. Dr. Frost opined to a reasonable degree of medical 

certainty that Ms. Layman was first shot in the arm and then in the back. 

The petitioner called two 911 operators to testify. The first, Jana Wolfe, 

received an emergency 911 call from Tammy Belldina on the night of shooting. Ms. Belldina 

reported the petitioner told her he shot Ms. Layman in the head and the back but did not 

know if she were dead. On cross-examination, Ms. Wolfe read the entirety of the Incident 

Detail Report generated from the call made by Ms. Belldina, which included Ms. Belldina’s 

statement that the petitioner had told her he was “tired of taking people’s sh*t.” 

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Justin Wolfe testified he took an emergency 911 call from the victim on 

February 28, 2011, regarding a domestic violence incident between her and the petitioner. 

He relayed a statement made by Ms. Layman during the call that she would shoot the 

petitioner if he returned to her home. On cross-examination, the entirety of the Incident 

Detail Report was read to the jury. The report revealed that the petitioner had been 

threatening Ms. Layman and had entered her home, ripped off the back door of her trailer, 

hit her with a bucket, and spit in her face. He also cut the brakes on one of her vehicles 

during this incident. 

The defendant chose not to testify at his trial. The jury deliberated for three 

hours before returning its verdict. During the deliberations, the jury asked to see the data or 

call log from the petitioner’s cell phone and a video that had been obtained from another cell 

phone, which had been taken to the Digital Forensics Unit in August 2013. Although these 

items were mentioned during the trial, neither were admitted into evidence. Accordingly, the 

trial court advised the jury: “The Court has previously ruled that this evidence cannot be 

published to the jury.” 

Subsequent to the jury’s return of guilty verdicts with regard to the charges of 

first degree murder and wanton endangerment, the petitioner filed a motion for judgment of 

acquittal or, alternatively, a new trial. The trial court held a hearing on the motions on June 

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5, 2014. The motions were denied in the sentencing order entered on June 18, 2014. This 

appeal followed. 

II. Standard of Review 

The petitioner appeals the trial court’s final order denying his post-conviction 

motion for judgment of acquittal6 or, alternatively, a new trial. We have explained that 

[i]n reviewing challenges to findings and rulings made by 

a circuit court, we apply a two-pronged deferential standard of 

review. We review the rulings of the circuit court concerning a 

new trial and its conclusion as to the existence of reversible 

error under an abuse of discretion standard, and we review the 

circuit court's underlying factual findings under a clearly 

erroneous standard. Questions of law are subject to a de novo 

review. 

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). To the extent a more 

specific standard of review applies to a particular assignment of error, it will be set forth in 

the discussion that follows. Accordingly, we proceed to consider the parties’ arguments. 

III. Discussion 

The petitioner’s five assignments of error will be addressed separately below. 

6

While the petitioner challenged the sufficiency of the evidence produced at trial, 

resulting in his convictions of first degree murder and wanton endangerment, he did not raise 

that issue in this appeal. 

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A. Request for Jury View 

The petitioner first contends the trial court erred by denying his motion for a 

jury visit to the site where the shooting occurred.7 The petitioner contends the jury should 

have been allowed to view the victim’s mobile home in relation to the location of Roger 

Curry’s residence; Mark Atkinson’s residence; the chicken coop; the brush/tree line; an 

abandoned home; the area where the petitioner parked the Subaru; the homes of other State 

witnesses; and the road leading to the victim’s parents’ home. The petitioner contends 

visiting the site would have allowed the jury to get a sense of the crime scene. The trial 

occurred in April and was close to the time of year –May–when the shooting occurred. The 

petitioner acknowledges the vegetation might have been slightly different but contends that 

7

West Virginia Code § 56-6-17 (2012) provides: 

The jury may, in any case, at the request of either party, 

be taken to view the premises or place in question, or any 

property, matter or thing relating to the controversy between the 

parties, when it shall appear to the court that such view is 

necessary to a just decision, and in such case the judge presiding 

at the trial may go with the jury and control the proceedings; 

and in a felony case the judge and the clerk shall go with the 

jury and the judge shall control the proceedings, and the accused 

shall likewise be taken with the jury or, if under recognizance, 

shall attend the view and his recognizance shall be construed to 

require such attendance. The party making the motion, in a civil 

case, shall advance a sum sufficient to defray the expenses of 

the jury and the officers who attend them in taking the view, 

which expenses shall be afterwards taxed like other legal costs. 

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overall there was not a significant change in the area since the shooting occurred. The 

petitioner maintains that where self-defense is asserted, it is important for the jury to know 

the “lay of the land” where the incident occurred. 

Conversely, the State contends the trial court did not abuse its discretion in 

refusing the petitioner’s motion. Noting there were numerous photographs, charts, and aerial 

shots that allowed the jury to visualize the scene of the crime, the State asserts the petitioner 

simply failed to set forth a legitimate purpose for a jury view of the site of the alleged 

offenses. 

This Court has long held that “[a] motion for a jury view lies peculiarly within 

the discretion of the trial court, and, unless the denial of such view works probable injury to 

the moving party, the ruling will not be disturbed.” Syl. Pt. 1, Collar v. McMullin, 107 

W.Va. 440, 148 S.E. 496 (1929). Here, the record reflects the circuit court denied the 

petitioner’s motion because the parties agreed prior to trial that the scene was no longer as 

it was on the night of the shooting due to the removal of some vehicles that might be of issue 

and the absence of foliage that would have been there when the shooting occurred.8 The 

8

The petitioner was appointed new counsel to handle all post-conviction matters after 

the trial court entered the sentencing order. While the record indicates the petitioner’s trial 

counsel acknowledged prior to trial that the site of the offenses had changed since the 

shooting because of the removal of certain vehicles, the petitioner’s appellate counsel 

maintains the site was sufficiently similar to have warranted a jury visit. 

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court also considered the fact that the location of the shooting was thirty minutes from the 

courthouse and there were numerous photos and other documents available to present at trial 

to allow the jury to visualize the scene of the alleged offenses. Given these facts and the 

broad discretion afforded to the trial court on this issue, we conclude there is no merit to this 

assignment of error. 

B. Exclusion of Witness Testimony 

The petitioner next asserts the trial court erred by refusing to allow his witness, 

Lisa McCartney, to testify regarding a statement made to her by the victim. Prior to trial, the 

petitioner filed a motion in limine explaining that 

[t]he victim’s best friend, Lisa McCartney[,] was 

interviewed by the police in this case and Ms. McCartney told 

the police that Ms. Layman, at one time, had “met [the 

petitioner] at the door with a shotgun[”], and “she backed him 

out of the door,” and that she had “fired a warning shot” at him. 

Seeking to use the victim’s statement to Ms. McCartney about this incident to support his 

claim of self defense, the petitioner argued during the proceedings below that this evidence 

was admissible as a statement against interest pursuant to Rule 804(b)(3) of the West 

Virginia Rules of Evidence.9 He now contends in this appeal that the evidence was 

9

Rule 804(b)(3) provides an exception to the hearsay rule for a statement against 

interest which is defined as a statement that 

(A) a reasonable person in the declarant’s position would 

have made only if the person believed it to be true because, 

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admissible as a statement of a party opponent under Rule 801(d)(2) of the West Virginia 

Rules of Evidence.10 The State maintains, however, that the trial court did not err in 

concluding this evidence was inadmissible hearsay. 

It is well settled that “[t]he action of a trial court in admitting or excluding 

evidence in the exercise of its discretion will not be disturbed by the appellate court unless 

when made, it was so contrary to the declarant’s proprietary or 

pecuniary interest or had so great a tendency to invalidate the 

declarant’s claim against someone else or to expose the 

declarant to civil or criminal liability; and 

(B) is supported by corroborating circumstances that 

clearly indicate its trustworthiness, if it is offered in a criminal 

case as one that tends to expose the declarant to criminal 

liability. 

10Rule 801(d)(2) of the West Virginia Rules of Evidence provides that a statement 

offered against an opposing party is not hearsay if that statement: 

(A) was made by the party in an individual or 

representative capacity; 

(B) is one the party manifested that it adopted or believed 

to be true; 

(C) was made by a person whom the party authorized to 

make a statement on the subject; 

(D) was made by the party’s agent or employee on a 

matter within the scope of that relationship and while it existed; 

or 

(E) was made by the party’s coconspirator during and in 

furtherance of the conspiracy. 

The statement must be considered but does not by itself establish the 

declarant's authority under (C); the existence or scope of the relationship under 

(D); or the existence of the conspiracy or participation in it under (E). 

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it appears that such action amounts to an abuse of discretion.” Syl. Pt. 10, State v. Huffman, 

141 W.Va. 55, 87 S.E.2d 541 (1955). In other words, “a trial court’s evidentiary rulings, as 

well as its application of the Rules of Evidence, are subject to review under an abuse of 

discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). 

As noted above, the petitioner argues in this appeal that Ms. Layman’s statement to Ms. 

McCartney should have been admitted into evidence by the trial court as a party admission 

pursuant to Rule 801(d)(2) of the West Virginia Rules of Evidence. However, Ms. Layman 

is not a party in this case; she is the victim. The parties in this case are the petitioner and the 

State of West Virginia. Accordingly, the statement is not a party admission. 

The record shows the trial court ruled that this evidence was classic hearsay, 

which was not admissible as a present sense impression, excited utterance, or then existing 

state of mind because the statement was allegedly made to Ms. McCartney some time after 

the incident occurred.11 The trial court rejected the petitioner’s contention that the victim’s 

statement to Ms. McCartney constituted a statement against interest. In that regard, the 

petitioner asserted Ms. Layman exposed herself to criminal prosecution for wanton 

endangerment by telling Ms. McCartney that she forced the petitioner from her home with 

a shotgun and then fired a warning shot at him. 

11See W.Va.R.Evid. 803 (providing exceptions to the hearsay rule). 

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The trial court noted that the test to be applied under Rule 804(b)(3) is whether 

a reasonable person would have thought the statement was against his or her interest when 

it was made. 2 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 

804.04[4] (6th ed. 2015). The reliability of this type of statement is founded on the belief the 

declarant would not have made the statement unless it was true, because “when made, it was 

so contrary to the declarant’s proprietary or pecunitary interest or had so great a tendency to 

invalidate the declarant’s claim against someone else or to expose the declarant to civil or 

criminal liability.” Id. 

The trial court found that Ms. Layman would not have thought her statement 

would expose her to criminal culpability given the circumstances. As the trial court 

explained, this statement was made by the victim to her best friend, someone whom she 

likely felt safe confiding in and, therefore, she would not have believed that criminal charges 

might result from her disclosure. The trial court also pointed out that during the incident, the 

petitioner hit Ms. Layman with a bucket, spit in her face, and cut the brakes on one of her 

vehicles; thus, it was not reasonably clear that Ms. Layman’s actions toward the petitioner 

were criminal because case law permits the occupant of a dwelling to use deadly force when 

threatened by an intruder with serious bodily injury or death. See Syl. Pt. 2, State v. W.J.B., 

166 W.Va. 602, 276 S.E.2d 550 (1981) (“The occupant of a dwelling is not limited in using 

deadly force against an unlawful intruder to the situation where the occupant is threatened 

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with serious bodily injury or death, but he may use deadly force if the unlawful intruder 

threatens imminent physical violence or the commission of a felony and the occupant 

reasonably believes deadly force is necessary.”). Accordingly, the trial court concluded that 

Ms. Layman’s statement to Ms. McCartney was not sufficiently reliable to fall under the 

exception set forth in Rule 803(b)(3). The trial court further noted the petitioner was able 

to introduce the same evidence through a non-testimonial, excited utterance made by the 

victim to Justin Wolfe, the 911 operator. Mr. Wolfe testified about the same incident, 

revealing to the jury that Ms. Layman said she would shoot the petitioner if he were to come 

back to her home. 

Upon review, we find no error in the trial court’s decision to exclude Ms. 

McCartney’s testimony regarding the statement made to her by the victim. As the trial court 

noted, the jury was aware of the threats made by the victim against the petitioner, and the 

jury, as the fact finder, chose not to believe the petitioner had acted in self-defense. In sum, 

we find no merit to this assignment of error. 

C. Alleged Juror Misconduct 

The petitioner next asserts that the jury considered evidence not presented at 

trial in reaching its verdict. Prior to trial, the petitioner filed a motion to exclude two items 

from evidence: his cell phone call log and a video obtained from another cell phone 

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belonging to a female.12 The State did not oppose the petitioner’s motion, indicating it had 

not planned to offer this evidence during its case-in-chief, but might seek to introduce the 

video should the petitioner open the door to his character during trial. 

At trial, during the testimony of Lieutenant Kenneth Wotring of the Preston 

County Sheriff’s Department, the State asked if a cell phone, other than the petitioner’s cell 

phone, was taken to the Digital Forensics Unit. Lieutenant Wotring answered affirmatively, 

stating that a female had called and told him she had received a video on her cell phone 

pertaining to the petitioner. Lieutenant Wotring further stated he met this female at the 

Digital Forensics Unit to obtain the video from her phone. Counsel for the petitioner 

objected to this testimony. Although Lieutenant Wotring testified that the State Police 

extracted a video from the cell phone, the video was not admitted into evidence at trial. 

Nonetheless, the jury requested to see both the video and the petitioner’s cell phone call log 

during deliberations. With consent of counsel, the trial court informed the jury it had already 

ruled that this evidence could not be published to the jury. Relying upon this Court’s 

decision in State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981), the petitioner argues 

12This female is not identified in the record before this Court; neither have we been 

apprised of the content of the video at issue. 

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the jury’s verdict must be reversed because the jury’s decision was based, at least in part, on 

the existence of this video. Conversely, the State maintains there is no evidence that the jury 

considered matters not presented at trial. 

In Scotchel, the defendant challenged his assault and battery conviction based 

on the trial court’s refusal to overturn the jury’s verdict after a juror stated by affidavit that 

she had voted for conviction because another juror represented that the maximum penalty for 

the charged offense was a fine. The juror also stated she had been verbally abused by her 

fellow jurors and felt pressured to vote for a conviction because another juror appeared to be 

ill during deliberations. As this Court recognized in Scotchel, “a jury verdict may be 

impeached for matters of misconduct extrinsic to the jury’s deliberative process.” Id. at 545, 

285 S.E.2d at 385, syl. pt. 2, in part. Upon review, this Court concluded the matters at issue 

were intrinsic to the jury’s deliberative process. Denying the defendant relief, we held in 

Scotchel that “a jury verdict may not ordinarily be impeached based on matters that occur 

during the jury’s deliberative process which matters relate to the manner or means the jury 

uses to arrive at its verdict.” Id. at 545, 285 S.E.2d at 385, syl. pt. 1. 

In the case sub judice, the circuit court determined there was no basis to 

conclude that the jury either considered inadmissable or unadmitted evidence or failed to 

consider the evidence introduced at trial. As the circuit court explained, 

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[T]here is no evidence presented by the [petitioner] that 

the jury considered the content of the video on the iPhone. 

Instead, the jury merely requested to see it, which request was 

refused by the Court after consultation with counsel and the 

[petitioner]. Although this particular scenario does not fall 

squarely within the examples provided in Scotchel, the Court 

considers this a “matter inherent in the jury’s deliberative 

process.” The jury had heard testimony that a video on the 

iPhone was retrieved by the Digital Forensics Unit, but were not 

shown the video based upon a prior motion in limine, and then 

asked to see it during deliberations. No showing has been made 

that the jury otherwise saw it or relied on it during their 

deliberations. Accordingly, this ground for a new trial is 

without merit. 

This Court has held: 

“A motion for a new trial on the ground of the 

misconduct of a jury is addressed to the sound discretion of the 

court, which as a rule will not be disturbed on appeal where it 

appears that defendant was not injured by the misconduct or 

influence complained of. The question as to whether or not a 

juror has been subjected to improper influence affecting the 

verdict, is a fact primarily to be determined by the trial judge 

from the circumstances, which must be clear and convincing to 

require a new trial, proof of mere opportunity to influence the 

jury being insufficient.” Syllabus Point 7, State v. Johnson, 111 

W.Va. 653, 164 S.E. 31 (1932). 

Syl. Pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995). 

In this case, there is simply no evidence the jury engaged in any misconduct. 

The fact that the jury asked to view the video does not indicate its existence played a role 

in the jury’s decision. Moreover, even if the existence of the video was considered by the 

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jury in reaching its decision, absent evidence the jury was somehow able to view the video, 

it is a matter intrinsic to the deliberative process. Consequently, we find no merit to this 

assignment of error. 

D. Prosecutor’s Closing Argument 

The defendant next contends the circuit court erred by allowing the State to 

misrepresent evidence during its closing argument. Specifically, the petitioner argues that 

prosecutorial misconduct occurred when the prosecutor, while discussing a series of phone 

messages left by the petitioner on Ms. Layman’s voice mail, told the jury, 

He [referring to petitioner] says “I’ll slay you.” Now, Mr. 

Tipton [petitioner’s trial counsel] might argue that he’s actually 

said, “I’ll show you” there. And that is a question of fact for 

you to decide. I can’t tell you what he said. But what would be 

the difference? 

Through these comments, the petitioner asserts the prosecutor wanted the jury to think that 

the petitioner intended to “slay” Ms. Layman when he went to her house. By inserting 

statements not in evidence to bolster his case of premeditated murder, the petitioner 

maintains the prosecutor’s comments prevented him from receiving a fair trial. 

In response, the State points out that the petitioner made no objection to the 

prosecutor’s remarks at trial and asserts that the only avenue for relief on this issue is by 

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application of the plain error doctrine. The State maintains that under such an analysis, there 

was simply no error. We agree. 

This Court has held that “[f]ailure to make timely and proper objection to 

remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a 

waiver of the right to raise the question thereafter either in the trial court or in the appellate 

court.” Syl. Pt. 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945). Because the 

petitioner’s counsel did not object to the prosecutor’s remarks, any error is foreclosed from 

our review unless it rises to the level of plain error. “To trigger application of the ‘plain 

error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; 

and (4) seriously affects the fairness, integrity, or public reputation of the judicial 

proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Upon review, 

we find the prosecutor was simply invoking his power to vigorously prosecute the State’s 

case. As we have explained, 

An attorney for the state may prosecute vigorously as 

long as he deals fairly with the accused; but he should not 

become a partisan, intent only on conviction. And, it is a 

flagrant abuse of his position to refer, in his argument to the 

jury, to material facts outside the record, or not fairly deducible 

therefrom. 

Syllabus, State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931). In this instance, the 

prosecutor merely pointed out two possible interpretations of a statement made by the 

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petitioner on the victim’s answering machine and reminded the jury that it had to decide what 

the petitioner said. We do not find that these remarks constitute plain error. Accordingly, 

we find no merit to the petitioner’s argument. 

V. Failure to Provide a Bill of Particulars 

The petitioner’s last assignment of error is that he was prejudiced by the 

prosecutor’s failure to provide a bill of particulars regarding the alleged use of a firearm. 

According to the petitioner, his motion for a bill of particulars was granted by the trial court; 

however, the State failed to provide him with a bill of particulars throughout his trial. The 

petitioner claims he needed more detail from the State regarding the alleged use of a firearm 

and how such use violated the law. The petitioner further contends discoverywas incomplete 

under Rule 7(f) of the West Virginia Rules of Criminal Procedure13 because he never 

received the bill of particulars and, therefore, he was not provided a fair trial. The State 

maintains the petitioner was fully informed of the nature of the charges against him by the 

13Rule 7(f) of the West Virginia Rules of Criminal Procedure provides: 

Bill of particulars. – The court may direct the filing of a 

bill of particulars. A motion for a bill of particulars shall be 

made pursuant to the provisions of Rule 12(b)(4) or at such later 

time as the court may permit. A bill of particulars may be 

amended at any time subject to such conditions as justice 

requires. 

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indictment and, therefore, the fact that the petitioner did not receive a bill of particulars does 

not constitute reversible error. 

This Court has long recognized “[i]t is fundamental that the accused must be 

fully and plainly informed of the character and cause of the accusation. The Constitution so 

requires. . . . A bill of particulars is for the purpose of furnishing details omitted from the 

accusation or indictment, to which the defendant is entitled before trial.” State v. Counts, 90 

W.Va. 338, 342, 110 S.E. 812, 814 (1922). In this case, count two of the indictment charged 

the petitioner with “unlawfully, knowingly and feloniously commit[ting] the felony charged 

in Count 1 [First Degree Murder] by the use, presentment or brandishment of a firearm, in 

violation of West Virginia Code §§ 62-12-1 and 62-12-13, as amended, against the peace and 

dignity of the State.” Count four of the indictment charged that the petitioner 

committed the criminal offense of “Wanton Endangerment 

Involving a Firearm” by feloniously and wantonly performing 

an act with a firearm which created a substantial risk of death or 

serious bodily injury, to wit: prior to matters otherwise alleged 

herein, Denny Franklin Ervin discharged a firearm in a 

threatening manner and in close proximity to the daughters of 

Leslie Dawn Layman, in violation of West Virginia Code § 61­

7-12, as amended, against the peace and dignity of the State. 

Upon review, we find the indictment fully informed the petitioner of the charges against 

him.14 The indictment provided details as to the nature of the allegations with respect to how 

14It was also asserted in count five of the indictment that the petitioner discharged a 

firearm during the commission of domestic assault. However, the petitioner was not 

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the firearm was used to commit the alleged offenses and identified the victims of those 

offenses. The petitioner has presented no evidence that the State’s failure to provide a bill 

of particulars deprived him of exculpatory material or impaired his cross-examination of 

witnesses. 

While we have previously indicated that “we are unanimously 

of the opinion that the proper way to try a criminal case is to be 

responsive to all reasonable defense requests,” State v. Sette, 

167 W.Va. 385[, 397] 242 S.E.2d 464, 472 (1978), we have also 

held that, absent a showing that lack of discovery was 

prejudicial there is no reversible error, Wilhelm v. Whyte, W.Va., 

239 S.E.2d 735, 739 (1977). 

State v. White, 167 W.Va. 374, 384-85, 280 S.E.2d 114, 121-22 (1981). Accordingly, we 

find no merit to this assignment of error. 

IV. Conclusion 

For the reasons set forth above, we find no reversible error. Therefore, the 

final order of the Circuit Court of Preston County entered on June 18, 2014, is affirmed. 

Affirmed. 

convicted of this offense. 

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