IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term

_______________

No. 21-0401

_______________

STATE OF WEST VIRGINIA ex rel.

STATE OF WEST VIRGINIA,

Petitioner

v.

THE HONORABLE DAVID W. HUMMEL, JR.,

Chief Circuit Court Judge of the Circuit Court of Marshall County, West Virginia, and

MICHAEL DANIEL BOWMAN, Criminal Defendant Below and Party in Interest,

Respondents

____________________________________________________________

ORIGINAL PROCEEDING IN PROHIBITION

WRIT GRANTED

____________________________________________________________

Submitted: November 1, 2021

Filed: November 16, 2021

Patrick Morrissey, Esq.

Attorney General

Karen C. Villanueva-Matkovich, Esq.

Deputy Attorney General

Katherine M. Smith, Esq.

Assistant Attorney General

Office of the Attorney General

Charleston, West Virginia

Counsel for Petitioner

The Honorable David W. Hummel, Jr.

Circuit Court Judge

Second Judicial Circuit

Moundsville, West Virginia

Respondent

Matthew D. Brummond, Esq.

Public Defender Services

Appellate Advocacy Division

Charleston, West Virginia

Counsel for Respondent

 Michael Daniel Bowman

JUSTICE ARMSTEAD delivered the Opinion of the Court.

FILED

November 16, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “The State may seek a writ of prohibition in this Court in a criminal 

case where the trial court has exceeded or acted outside of its jurisdiction. Where the State 

claims that the trial court abused its legitimate powers, the State must demonstrate that the 

court’s action was so flagrant that it was deprived of its right to prosecute the case or 

deprived of a valid conviction. In any event, the prohibition proceeding must offend neither 

the Double Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the 

application for a writ of prohibition must be promptly presented.” Syllabus Point 5, State 

v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds 

as stated in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d 718, 729 n.27 (2017). 

2. “In reviewing challenges to the findings and conclusions of the circuit 

court in a habeas corpus action, we apply a three-prong standard of review. We review the 

final order and the ultimate disposition under an abuse of discretion standard; the 

underlying factual findings under a clearly erroneous standard; and questions of law are 

subject to a de novo review.” Syllabus Point 1, Mathena v. Haines, 219 W. Va. 417, 633 

S.E.2d 771 (2006). 

3. “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 
ii

grand jury, either to determine its legality or its sufficiency.” Syllabus, Barker v. Fox, 160 

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

4. “Challenges to an indictment based on irregularities during grand jury 

deliberations must be raised under Rule 12(b)(2) of the West Virginia Rules of Criminal 

Procedure prior to trial.” Syllabus Point 4, State v. Bongalis, 180 W. Va. 584, 378 S.E.2d 

449 (1989).

5. “Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure 

requires that a defendant must raise any objection to an indictment prior to trial. Although 

a challenge to a defective indictment is never waived, this Court literally will construe 

an indictment in favor of validity where a defendant fails timely to challenge its 

sufficiency. Without objection, the indictment should be upheld unless it is so defective 

that it does not, by any reasonable construction, charge an offense under West Virginia law 

or for which the defendant was convicted.” Syllabus Point 1, State v. Miller, 197 W. Va. 

588, 476 S.E.2d 535 (1996). 

6. “‘[D]ismisal 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. 
iii

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).
1

Armstead, Justice:

Michael Daniel Bowman was convicted by a jury of his peers of five sexual 

offenses including sexual abuse by a custodian. His victims were young children. 

Following his convictions on these five sexual offenses, Mr. Bowman was sentenced to a 

term of incarceration of twenty-eight to seventy years. This Court affirmed his convictions. 

See State v. Bowman, No. 17-0698, 2018 WL 6131290 (W. Va. Nov. 21, 2018) 

(memorandum decision).

Mr. Bowman subsequently filed a petition for a writ of habeas corpus arguing 

that the indictments were defective because the grand jury foreperson did not sign them. 

The circuit court rejected this argument. However, while not raised by Mr. Bowman, the 

circuit court sua sponte found “fatal flaws” with the grand jury proceedings including 

“inflammatory remarks” made by an investigator who testified before the grand jury. 

Based on these conclusions, the circuit court ruled that Mr. Bowman’s convictions on five 

sexual offenses were null and void, ordered that the indictments against him be dismissed 

with prejudice, ordered his immediate release from custody, and ordered that he no longer 

be required to register as a sex offender or be subjected to supervised release. 

Following entry of the circuit court’s order, the State of West Virginia filed 

this original jurisdiction proceeding. After review, we agree with the State and find that 

the circuit court far exceeded its authority in ordering the dismissal of the indictments, 

releasing Mr. Bowman from incarceration and the granting of additional relief. We 
2

therefore grant the requested writ of prohibition. Mr. Bowman’s convictions are reinstated 

forthwith, and we set aside all other relief contained in the circuit court’s orders. This 

matter is remanded to the circuit court for immediate proceedings consistent with this 

opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Michael Daniel Bowman was indicted on sex crimes against minor children, 

including various counts of first-degree sexual assault, first-degree sexual abuse, sexual 

abuse by a parent, guardian, or custodian or person in a position of trust, child abuse 

resulting in bodily injury by a parent, guardian or custodian, and second-degree sexual 

assault, for a total of thirteen separate counts. See id. at *1. These charges were alleged to 

have been committed against two minor children, E.W. and H.S. See id. During Mr. 

Bowman’s trial, the prosecuting attorney moved to dismiss a total of four counts, all related 

to E.W., leaving nine to be considered by the jury. See id. at *2. At the conclusion of his 

jury trial, Mr. Bowman was convicted on five counts of sex crimes against minors. During 

her presentation to the grand jury, the prosecutor read the proposed indictments1 for each 

of the five counts upon which Mr. Bowman was convicted to the grand jury.

2

1 The prosecutor had prepared the proposed indictments prior to the 

presentation to the grand jury.

2 These counts of the indictment alleged:

(continued . . .)
3

Count I – 15-F-59

That sometime between the 1st day of January, 2001, 

and the 30th day of July, 2002, in the County of Marshall, State 

of West Virginia, MICHAEL DANIEL BOWMAN, whose 

date of birth is [redacted], as a parent, guardian, custodian or 

person in a position of trust to E. W., whose date of birth is 

[redacted], a minor female child, under the age of eighteen 

years, committed the offense of “sexual abuse by a custodian, 

parent or person in a position of trust”, by unlawfully and 

feloniously engaging in sexual contact with the said E. W., towit: the said MICHAEL DANIEL BOWMAN engaged in 

sexual contact by forcing the said E. W. to touch his penis with 

her hand, the said E.W., being in the care, custody, and control 

of the said MICHAEL DANIEL BOWMAN, against the peace 

and dignity of the State, and in violation of §61-8D-5(a) of the 

West Virginia Code.

Count V – 15-F-59

That sometime between the 1st day of January, 2001, 

and the 30th day of July, 2002, in the County of Marshall, State 

of West Virginia, MICHAEL DANIEL BOWMAN, whose 

date of birth is [redacted] being fourteen (14) years old or more, 

committed the offense of “sexual abuse in the first degree”, by 

unlawfully and feloniously subjecting E. W., whose date of 

birth is [redacted], a person who was twelve (12) years old or 

less and is not married to the said MICHAEL DANIEL 

BOWMAN, to sexual contact by forcing the said E. W. to 

touch his penis with her hand, against the peace and dignity of 

the State, and in violation of §61-8B-7(a)(3) of the West 

Virginia Code.

Count VII – 15-F-59

That sometime between the 1st day of January 2001, and 

the 30th day of July, 2002, in the County of Marshall, State of 

West Virginia, MICHAEL DANIEL BOWMAN, whose date 

(continued . . .)
4

of birth is [redacted], being fourteen (14) years old or more, 

committed the offense of “First degree sexual assault”, by 

unlawfully and feloniously engaging in sexual intercourse with 

E.W., a minor child whose date of birth is [redacted], a person 

who was twelve years old or less and is not married to the said 

MICHAEL DANIEL BOWMAN, by inserting his penis into 

her mouth, against the peace and dignity of the State, and in 

violation of §61-8B-3(a)(2) of the West Virginia Code.

Count I – 15-F-60

That sometime between the 1st day of January, 2006, 

and the 29th day of March, 2008, in the County of Marshall, 

State of West Virginia, MICHAEL DANIEL BOWMAN, 

committed the offense of “sexual abuse in the first degree”, by 

unlawfully and feloniously subjecting H. S., a minor female 

child, [handwritten D.O.B. redacted] who is not married to the 

said MICHAEL DANIEL BOWMAN, to sexual contact by 

touching her breast with his hand, without her consent, the lack 

of consent resulting from forcible compulsion, against the 

peace and dignity of the State, and in violation of §61-8B7(a)(1) of the West Virginia Code.

Count II – 15-F-60

That sometime between the 1st dayf [sic] of January, 

2006, and the 29th day of March, 2008, at a date and time 

separate and apart from that set forth in Count One, in the 

County of Marshall, State of West Virginia, MICHAEL 

DANIEL BOWMAN, committed the offense of “sexual abuse 

in the first degree”, by unlawfully and feloniously subjecting 

H. S., a minor female child, [handwritten D.O.B. redacted] 

who is not married to the said MICHAEL DANIEL 

BOWMAN, to sexual contact by touching her vagina with his 

hand, without her consent, the lack of consent resulting from 

forcible compulsion, against the peace and dignity of the State, 

and in violation of §61-8B-7(a)(1) of the West Virginia Code.
5

For these five convictions, Mr. Bowman was sentenced “to consecutive 

terms of incarceration that resulted in an effective sentence of not less than twenty-eight 

years nor more than seventy years.” Id. at *3. Mr. Bowman was also ordered to serve a 

fifty-year period of supervised release and to register as a sex offender for life. 

Mr. Bowman then filed various petitions for writs of habeas corpus and 

attendant motions pursuant to the Post-Conviction Habeas Corpus statute. See W. Va. 

Code §§ 53-4A-1 – 11 (2021 Supp). On April 13 and 14, 2021, the circuit court held a 

hearing on the underlying petition and the various motions. Mr. Bowman argued that the 

circuit court should dismiss the indictments because they were not signed by the grand jury 

foreperson. The circuit court concluded that the indictments were properly signed.

However, the circuit court sua sponte announced that it had found “fatal 

flaws ... in the presentation of Mr. Bowman’s case to the grand jury” and in its order 

dismissing the indictments made specific findings:

First, this Court FINDS that Prosecuting Attorney Wade 

failed to instruct the Grand Jury as to the law to be applied by 

the Grand Jury. This point of error is undisputed by the State.

Second, this Court FINDS that the Grand Jurors could 

not have applied the facts without first having the law. This is 

necessary in order to make a decision of whether there was 

probable cause to believe that Petitioner Bowman had 

committed some or all of the alleged offenses.

Third, the Court FINDS the needless, inflammatory, 

and outrageous conduct by the prosecutor and her investigator, 

created an unlawful bias fully intended to sway the Grand 
6

Jurors to find true bills on multiple sex charges against the

Petitioner, without first examining any law, let alone pertinent 

law, and evidence necessary to substantiate a violation thereof.

The circuit court then detailed what it found to be “needless, inflammatory 

and outrageous”:

Alarmingly, one thing the investigator did “instruct” the grand 

jurors about, was the fact that the Magistrate had already found 

probable cause at the preliminary hearing and that new charges 

were likely “forthcoming” out of Ohio County, West Virginia 

against the Petitioner. These comments are highly prejudicial.

The statements made by the investigator only had one 

purpose. That purpose was to improperly influence the Grand 

Jurors to sign the pre-printed indictment forms. There was no 

attempt to let the Grand Jury exercise discretion and apply the 

law. The only attempt that was being made was to improperly 

create a bias in their minds without any regard to the law or the 

facts regarding the Petitioner. Instead[,] the Grand Jurors were 

being influenced improperly into thinking that if the magistrate 

already found probable cause in this case then so should you.

The circuit court also took issue with other aspects of the investigator’s testimony. These 

included references by the investigator to Mr. Bowman being held on a “very high” cash 

bond that was set by a magistrate who felt that Mr. Bowman would be a danger if he were 

let out of jail. At the end of his testimony, the investigator stated that he “hate[d] talking 

about [Mr. Bowman].” The circuit court was also critical of the investigator testifying in 

narrative form. Based upon what the circuit court “uncovered,” it signaled its intent to look 
7

behind other indictments handed down in the same term that Mr. Bowman’s case was 

presented and to delve into “perhaps more.”3

Based upon these findings, the circuit court dismissed the indictments against 

Mr. Bowman with prejudice. The circuit court also entered an Administrative Order that 

released Mr. Bowman from custody, declared that Mr. Bowman’s convictions were null 

and void, withdrew the jury’s guilty verdict against Mr. Bowman, expunged Mr. 

Bowman’s convictions, vacated all fees & costs assessed against Mr. Bowman, and ordered

that he no longer be required to register as a sex offender or be subject to fifty years of 

supervised release. 

3 Specifically, the circuit court found:

More unsettling is that the former prosecutor’s actions 

calls into question what happened during all the presentments 

during the November 2015 term and perhaps more. The 

Prosecutor’s office after reviewing the Bowman transcript, 

requested the court reporter to transcribe Arthur Crow’s Grand 

Jury transcript, another case that was presented during the 

November 2015 term of court. The court has already had a 

preliminary opportunity to review the Grand Jury transcript

regarding Arthur Crow and has unfortunately noticed similar 

errors in that proceeding as well. The Prosecutor’s office 

malfeasance did more than just open a can of worms, it may 

have opened Pandora’s box, because it now calls into question 

all the other Grand Jury presentments during the November 

term of the Grand Jury and beyond.
8

The State of West Virginia then sought this writ to prohibit the circuit court 

from enforcing its orders.

II. STANDARD OF REVIEW

This matter invokes this Court’s original jurisdiction in prohibition. We have

previously held that the State of West Virginia may petition this Court for a writ of 

prohibition because the State generally cannot appeal a criminal matter:

The State may seek a writ of prohibition in this Court in 

a criminal case where the trial court has exceeded or acted 

outside of its jurisdiction. Where the State claims that the trial 

court abused its legitimate powers, the State must demonstrate 

that the court’s action was so flagrant that it was deprived of 

its right to prosecute the case or deprived of a valid conviction. 

In any event, the prohibition proceeding must offend neither 

the Double Jeopardy Clause nor the defendant’s right to a 

speedy trial. Furthermore, the application for a writ of 

prohibition must be promptly presented.

Syllabus Point 5, State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded by 

statute on other grounds as stated in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d 

718, 729 n.27 (2017). To grant a discretionary writ of prohibition, five factors must be 

considered:

In determining whether to entertain and issue the writ of 

prohibition for cases not involving an absence of jurisdiction 

but only where it is claimed that the lower tribunal exceeded 

its legitimate powers, this Court will examine five factors: (1) 

whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 
9

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as a 

useful starting point for determining whether a discretionary 

writ of prohibition should issue. Although all five factors need 

not be satisfied, it is clear that the third factor, the existence of 

clear error as a matter of law, should be given substantial 

weight. 

Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 

The circuit court sua sponte granted relief after Mr. Bowman had filed a petition for PostConviction Habeas Corpus. See W. Va. Code §§ 53-4A-1 – 11 (2021 Supp).4

 Under that 

statute, “we are given broad powers in fashioning the form of relief accorded.” State ex 

rel. McMannis v. Mohn, 163 W. Va. 129, 141, 254 S.E.2d 805, 811 (1979). In that posture, 

we have adopted a three-prong standard of review:

In reviewing challenges to the findings and conclusions 

of the circuit court in a habeas corpus action, we apply a threeprong standard of review. We review the final order and the 

ultimate disposition under an abuse of discretion standard; the 

underlying factual findings under a clearly erroneous standard; 

and questions of law are subject to a de novo review.

Syllabus Point 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). We now 

turn to the issues raised by the petition.

4 Under the provisions of West Virginia Code § 53-4A-9(a) (1967), “[a] final 

judgment entered under the provisions of this article by a circuit court . . . may be appealed 

by the petitioner or the State to the Supreme Court of Appeals.” Donnie Ames, 

Superintendent of the Mt. Olive Correctional Complex and the State of West Virginia filed 

a direct appeal of the underlying order in case number 21-0402 before this Court. The 

State sought and received a stay of that appeal pending the outcome of this writ petition.
10

III. ANALYSIS

Our case law is abundantly clear. Except in very limited circumstances 

involving willful and intentional fraud, a circuit court exceeds its lawful authority when it 

goes behind the four corners of an indictment:

[I]t is not usual, under practice in this state, to challenge an 

indictment on either the ground of want of sufficient evidence 

to sustain it or even the incompetency of evidence before the 

grand jury. It would be a practice of great inconvenience. Very 

plainly a court cannot go into the question of the weight and 

sufficiency of the evidence to sustain the indictment, and thus 

review the action of the grand jury. That would be for the court 

to usurp the office of the grand jury, and also to usurp the office 

of the petit jury, because the court is not the judge of the weight 

of the evidence, but the grand jury in the first instance is, and 

finally the petit jury. When once an indictment is returned a 

true bill, it has legal force. You cannot go behind the return. It 

is not void, and it only remains to try its truth.

State v. Woodrow, 58 W. Va. 527, 532, 52 S.E. 545, 547 (1905). In Woodrow, we held 

“[a]n indictment cannot be quashed because it rests in whole or part on incompetent 

evidence.” Syllabus Point 4, Id. However, in rare instances a court may delve further into 

what transpired in the grand jury. In those cases, we have established a very narrow path 

for circuit courts to follow, so as not to usurp the grand jury’s role in our justice system, 

“[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). In this matter, there were no allegations of willful, intentional fraud in 

the grand jury proceedings raised in the habeas corpus petition filed below. Moreover, the 
11

alleged grand jury deficiencies cited by the circuit court do not implicate willful and 

intentional fraud.

Importantly, Mr. Bowman raised no issue with the indictments pretrial as 

required under Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure which 

provides:

The following [defense, objection, or request] must be raised 

prior to trial: ... (2) Defenses and objections based on defects 

in the indictment or information (other than that it fails to show 

jurisdiction in the court or to charge an offense which 

objections shall be noticed by the court at any time during the 

pendency of the proceedings).

Pursuant to this rule, we have held that “[c]hallenges to an indictment based on 

irregularities during grand jury deliberations must be raised under Rule 12(b)(2) of the 

West Virginia Rules of Criminal Procedure prior to trial.” Syllabus Point 4, State v. 

Bongalis, 180 W. Va. 584, 378 S.E.2d 449 (1989).

Despite the lack of allegations of willful, intentional fraud in the procurement 

of the indictments, Mr. Bowman alleged in his habeas petition that the foreperson of the 

grand jury did not sign the indictments. On that issue, the circuit court should have deemed 

the issue waived for failing to raise it pretrial. Nonetheless, the circuit court considered 

Mr. Bowman’s claim in this regard and found that the foreperson of the grand jury did sign 

the indictments. Absent any allegations of willful, intentional fraud, the circuit court had 

no authority to look behind the indictments. At this point, the circuit court’s inquiry should 
12

have ceased. However, the circuit court’s order stated that “[t]he sufficiency of the 

evidence [supporting the indictment] cannot be assumed by this court.” This statement is 

counter to the law: 

Rule 12(b)(2) of the West Virginia Rules of Criminal 

Procedure requires that a defendant must raise any objection to 

an indictment prior to trial. Although a challenge to a 

defective indictment is never waived, this Court literally will 

construe an indictment in favor of validity where a defendant 

fails timely to challenge its sufficiency. Without objection, 

the indictment should be upheld unless it is so defective that it 

does not, by any reasonable construction, charge an offense 

under West Virginia law or for which the defendant was 

convicted.

Syllabus Point 1, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996). Thus, we 

conclude that the circuit court should have assumed the validity of the indictments. The 

circuit court clearly lacked the authority to look behind them, absent any allegation of 

willful, intentional fraud.

Further, the dismissal of the indictments and grant of other relief was after a 

jury returned a verdict against Mr. Bowman convicting him of five criminal acts. We have 

long held that once a trial is had, an error in the grand jury proceedings is cured:

Often incompetent evidence is heard by grand juries, not 

merely incompetent matter, but incompetent witnesses. It 

would be an inconvenient and dangerous practice to institute 

preliminary investigation to ascertain what incompetent 

evidence was before the grand jury, how much good and how 

much bad evidence, and what its weight. Where there is any 

competent evidence before the grand jury, it cannot be 

quashed, though there may have been some incompetent 

evidence of witnesses, say the authorities just cited. This 

proposition would hardly seem to require authority. The court 
13

cannot say on what the grand jury found its indictment, or how 

far the incompetent evidence operated, or on what members it 

operated. You cannot call each member and ascertain on what 

evidence he formed judgment. Next, take the case where the 

indictment rests alone on evidence of an incompetent witness. 

In such cases some authorities say that the indictment must go, 

but, even here, why shall we not say that on the trial the state 

may furnish other evidence ample to sustain its indictment 

which was not before the grand jury? The indictment is only a 

charge, to be sustained by competent evidence on the trial. So 

the court said in State v. Dayton, [23 N.J.L. 49], 53 Am. Dec. 

270 [1850]. The accused can have the evidence, if 

incompetent, excluded on the trial. True, it is hard on him to be 

put to trial upon an indictment resting alone on incompetent 

evidence, but grand juries are not good judges of competency, 

and oftentimes do not consult the court. It would be very bad 

practice, endless inconvenience, to have a full preliminary trial 

of competence of evidence before the grand jury in many cases. 

How far would the practice go? Does the inconvenience to the 

accused justify the institution of such a practice? Are not his 

rights fully vindicated by his right to exclude improper 

evidence on the trial?

Woodrow, 58 W. Va. at 533, 52 S.E. at 547. Similarly, we have stated:

It is the policy of the law, in the interest of justice, that 

this preliminary hearing should be conducted with closed 

doors. This secrecy is not only consistent with, but essential to, 

the nature of the institution. The sufficiency of the proof cannot 

be inquired into to invalidate an indictment found by a lawfully 

constituted grand jury. The presumption is that every 

indictment is found upon proper evidence. If anything 

improper is given in evidence before a grand jury, it can be 

corrected on the trial before the petit jury. 

Noll v. Dailey, 72 W. Va. 520, 522, 79 S.E. 668, 669 (1913), citing Wadley v. 

Commonwealth, 35 S.E. 452, 453 (1900). More recently, we have reaffirmed this maxim 

when we cited, with approval, reasoning from our federal courts that “errors before a grand 

jury, such as perjured testimony, could easily be corrected during a trial with its incumbent 
14

procedural and evidentiary safeguards.” State ex rel. Pinson v. Maynard, 181 W. Va. 662, 

667, 383 S.E.2d 844, 849 (1989) (citing United States v. Udziela, 671 F.2d 995 (7th Cir. 

1982), cert. denied, 457 U.S. 1135 (1982)). 

Here, the circuit court not only erroneously looked behind the indictments 

but did so after a jury trial in which Mr. Bowman was convicted of five sex crimes against 

children. Mr. Bowman never raised any pretrial issue of willful, intentional fraud in the 

procurement of his indictments. Even if improper evidence was adduced before the grand 

jury, Mr. Bowman’s subsequent trial by petit jury cured any infirmity. 

Although we believe this precedent resolves the issues raised here, we 

nonetheless find that, even if the circuit court could have properly considered the grand 

jury presentment, we still find no error. First, we disagree that the prosecutor did not advise 

the grand jury as to the elements of the crimes to be presented. Second, we also do not 

find there was “needless, inflammatory, and outrageous conduct by the prosecutor and her 

investigator, [which] created an unlawful bias.” 

In our review of the grand jury transcript, during her presentation, the 

prosecutor read the text of the proposed indictments to the grand jury. Indeed, in its order, 

the circuit court states “[t]he prosecutor never instructed the Grand Jury that the indictment 

would mirror the statutes on §61-8D-5, §61-8B-7, §61-8B-3, §61-8D-3, and §61-8B-4.” 

Plainly, the circuit court recognized that the proposed indictments were read to the grand 
15

jury and they track the statutes but took issue with the prosecuting attorney’s mere reading 

of the proposed indictments to the grand jury. We would note that “[a]n indictment as 

drafted is presumed sufficient if it tracks the statutory language, cites the elements of the 

offense charged, and provides the other essential details, such as time, place, and persons 

involved, to provide adequate notice to the defendant.” Miller, 197 W. Va. at 600, 476 

S.E.2d at 547. Here, the prosecutor read the proposed indictments to the grand jury, the 

circuit court acknowledged such, and the indictments as returned by the grand jury track 

the statutory language of the statutes cited on their face. Thus, when the prosecutor read 

the proposed indictments, the grand jury was instructed as to the elements of the crimes 

charged. 

Additionally, the circuit court conflates the duty of the prosecutor before the 

grand jury with the duty of the circuit court. In State v. Pickens, 183 W. Va. 261, 395 

S.E.2d 505 (1990), this Court reiterated the long-standing rule that, “A prosecuting attorney 

can only appear before the grand jury to present by sworn witnesses evidence of alleged 

criminal offenses, and to render court supervised instructions, W.Va. Code § 7-4-1 (1976 

Replacement Vol.). . . .” Syllabus Point 1, Id (emphasis added).

We conclude that it is the duty of the circuit court, rather than the duty of the 

prosecutor, to instruct the grand jury. This is based on our holding that the prosecuting 

attorney can only “render court supervised instructions.” Syllabus Point 1, in part, id., and 

the statutory requirement that “[t]he grand jurors, after being sworn, shall be charged by 
16

the judge, and shall then be sent to their room.” W. Va. Code § 52-2-6 (1923). We 

previously cited to Pickens and other precedents of this Court, and we now reaffirm that, 

“[a] prosecutor before the grand jury performs a limited role. The circuit 

judge instructs the grand jury on the elements of the various crimes that are presented to 

it. The prosecutor presents witnesses to establish probable cause that a crime was 

committed.” State ex rel. Knotts v. Watt, 186 W. Va. 518, 522, 413 S.E.2d 173, 177 (1991)

(citations omitted). Thus, although a prosecutor may provide court-approved instructions 

as to the elements of the crimes presented, it is circuit court’s duty to first instruct the grand 

jury on the elements.5

 From our review of the record, we conclude that the grand jury 

was instructed as to the elements of the indicted crimes when the prosecutor read the 

proposed indictments that tracked the statutory language to the grand jury.

With regard to the issue of whether the statements by the investigator 

warranted dismissal of the indictments, we have held:

“[D]ismissal 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)).

5 The appendix record does not contain the circuit court’s general grand jury 

charge. During the hearing below, the circuit court read a portion of that general charge, 

that it reads “every single time.” In that charge, the court stated, “[the prosecutor] is 

authorized to present court-approved instructions to you that relate to the essential elements 

of the offenses under investigation.”
17

Syllabus Point 6, Pinson. “[I]n reviewing a case where improper evidence has been 

submitted to a grand jury, a court must ascertain whether there was significant and material 

evidence presented to the grand jury to support all the evidence of the alleged criminal 

offense. The court must then determine whether the improper evidence substantially 

influenced the decision to indict.” State v. Bonham, 184 W. Va. 555, 558, 401 S.E.2d 901, 

904 (1990). This is because:

Dismissal of an indictment based on improper testimony of a 

trivial or inconsequential nature would neither be in the 

interests of the efficient administration of justice, nor would it 

be dictated by the court’s duty to protect the defendant's 

constitutional rights. In this review, the court must also 

ascertain that there was significant and material evidence 

presented to the grand jury to support all elements of the 

alleged criminal offense.

Pinson, 181 W. Va. at 669, 383 S.E.2d at 851. Although the investigator arguably made 

some statements that may have been excluded from a petit jury’s consideration, the law is 

very clear that absent any evidence of willful, intentional fraud, the circuit court had no 

authority to question the evidence considered by the grand jury. Clearly, there is no 

evidence of such. The investigator’s testimony established all of the elements of the crimes 

charged. Moreover, it has not been established that his testimony impacted the grand jury’s 

return of a true bill, any issue with regard to the presentation was rendered inconsequential

by the jury’s verdict finding Mr. Bowman guilty, and, most importantly, the statements did 

not amount to prosecutorial misconduct. 
18

IV. CONCLUSION

For the foregoing reasons, we find clear error and grant the requested writ,

vacating in toto the orders entered by the circuit court.

6

 Because this opinion reinstates 

criminal convictions, in the interest of public safety, we direct the circuit court to expedite 

this matter and The Clerk of Court to issue the mandate forthwith.

Writ granted. Mandate issued forthwith.

6 Because we are reinstating Mr. Bowman’s convictions and vacating all 

orders entered below flowing from the circuit court’s dismissal of the indictments, we do

not provide further analysis regarding the circuit court’s expungement of Mr. Bowman’s 

convictions. Once the convictions are reinstated, the expungement and all other relief 

granted below flowing from the dismissal orders must also be set aside.