STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent June 13, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-1051 (Jefferson County 13-F-40) OF WEST VIRGINIA 

James Willard Johnson, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner James Willard Johnson, by counsel Christopher P. Stroech, appeals the order of 

the Circuit Court of Jefferson County entered on December 12, 2013, denying petitioner’s 

motion for a new trial and sentencing him upon his conviction for malicious assault. The State of 

West Virginia, by counsel Brandon C. H. Sims, responds in support of the circuit court’s order. 

This Court has considered the parties= briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Factual and Procedural Background 

At petitioner’s trial in August of 2013, Vincent Nelson, the victim herein, testified that he 

had borrowed money from petitioner. Mr. Nelson testified that when he went to petitioner’s 

home in Martinsburg to repay the debt on the afternoon of September 7, 2012, petitioner accused 

him of entering the home without permission and stealing a ring. Mr. Nelson denied this and 

allowed petitioner to search his car. Mr. Nelson testified that after petitioner retrieved and 

threatened him with a kitchen knife, Mr. Nelson got into his car and left. He further testified that 

as he was driving toward the Budget Inn in Ranson, which was where he lived with his 

girlfriend, he noticed that petitioner was following in a separate vehicle. Mr. Nelson testified that 

petitioner called his mobile telephone during the drive and that during the two calls he answered, 

petitioner accused him of doing something that was “messed up” [i.e., the alleged theft]. From 

his car, Mr. Nelson telephoned his girlfriend, Candy Taulton, to tell her that petitioner had 

accused him of breaking into petitioner’s house. 

Mr. Nelson testified that when they arrived at the motel parking lot and exited their 

respective vehicles, petitioner repeatedly accused him of doing something that was “messed up.” 

Mr. Nelson testified that petitioner concluded by saying, “I’ll be back.” Ms. Taulton, who was 

standing outside of their motel room at the time, also heard petitioner say, “I’ll be back.” 

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Petitioner then drove from Ranson back to Martinsburg, where he picked up another man, 

his Co-Defendant Eddie “Bo Bo” Young. Mr. Young testified that petitioner asked him to “take 

a ride” so they could go and “have a talk” with Mr. Nelson. Meanwhile, Mr. Nelson went to his 

mother’s home and obtained an aluminum baseball bat that he took back to his motel room. 

Mr. Nelson testified that later that same day, he and Ms. Taulton were in the motel room 

watching television when they heard a knock on the door. Ms. Taulton testified that she saw it 

was their neighbor knocking, but petitioner and Mr. Young were also there. Ms. Taulton and Mr. 

Nelson testified that petitioner and Mr. Young forced their way into the room, pushed Ms. 

Taulton outside of the room, and shut the door. Ms. Taulton testified that Mr. Young had a 

handgun stuck into the front waistband of his pants. 

Mr. Nelson, who was still inside the motel room, testified that Mr. Young entered with a 

gun, and that petitioner pulled a gun after the door was shut. He said that petitioner and Mr. 

Young attacked him, including repeatedly striking him in the head with their handguns. Mr. 

Nelson testified that he fought back in an attempt to defend himself, but toward the end of the 

altercation he was rendered dazed and bleeding from head wounds. Ms. Taulton testified that the 

motel room curtains were pulled down during the struggle and through the window she saw Mr. 

Young striking Mr. Nelson with a gun while petitioner was striking Mr. Nelson with the bat. She 

testified that petitioner and Mr. Young then ran out of the room and ran from the premises. 

Mr. Young testified for the defense at petitioner’s trial. He admitted that he and petitioner 

were present and entered the motel room. However, he asserted that Ms. Taulton allowed them 

in, and he denied that anyone had firearms. He testified that it was Mr. Nelson who attacked 

them first by hitting him in the arm with the baseball bat, breaking his arm. 

Police and an ambulance were called, and Mr. Nelson was transported to a hospital. The 

investigating officer observed Mr. Nelson’s bleeding head and saw blood spatter about the room. 

A clip from a handgun was found on the bed, but its owner was never identified. 

At trial, the doctor who treated Mr. Nelson in the emergency room testified that Mr. 

Nelson had lacerations on his head that were closed with medical staples, contusions on his 

forehead and the back of his head, and a concussion. The doctor offered his expert opinion that 

the wounds were consistent with Mr. Nelson’s explanation that he was struck multiple times on 

the head with a firearm. 

Mr. Nelson was interviewed by police and identified his attackers as “Bum” Johnson and 

Eddie “Bo Bo” Young, both of whom Mr. Nelson had known for years. Although Mr. Nelson did 

not know “Bum” Johnson’s real first name, police ascertained that “Bum” Johnson is the 

petitioner herein, James Willard Johnson. 

Petitioner was arrested and subsequently indicted for first degree robbery, assault during 

the commission of a felony, breaking and entering, conspiracy, malicious assault, and 

brandishing a firearm. At trial, the jury found him guilty of just one count, malicious assault, a 

felony. The jury acquitted him of the remaining charges. Pursuant to West Virginia Code § 61-2­

9(a), the circuit court sentenced petitioner to the statutory term of two to ten years in prison. 

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Standard of Review 

Petitioner appeals the circuit court’s order denying his motion for a new trial. We analyze 

such appeals using the following standard of review: 

1. “‘“Although the ruling of a trial court in granting or denying a motion 

for a new trial is entitled to great respect and weight, the trial court’s ruling will 

be reversed on appeal when it is clear that the trial court has acted under some 

misapprehension of the law or the evidence.” Syl. pt. 4, Sanders v. Georgia– 

Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus point 1, Andrews 

v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).” 

Syllabus point 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000). 

2. “In 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.” Syllabus point 3, State v. Vance, 207 

W.Va. 640, 535 S.E.2d 484 (2000). 

Syl. Pts. 1 and 2, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). To the extent that 

petitioner’s individual assignments of error involve specific standards of review, those standards 

are set forth below. 

Discussion 

Petitioner asserts three assignments of error on appeal. First, he argues that the circuit 

court erroneously permitted the emergency room doctor to testify as to his opinion that Mr. 

Nelson’s wounds were consistent with being struck multiples times in the head with a firearm. 

Petitioner contends that this opinion was beyond the scope of the expert witness disclosure 

provided by the State and is not included in any of Mr. Nelson’s medical records. He argues that 

the State should have disclosed this opinion testimony before trial pursuant to Rule 16(a)(1)(E) 

of the West Virginia Rules of Criminal Procedure.1 

We analyze evidentiary rulings under the following standard: 

The West Virginia Rules of Evidence . . . allocate significant discretion to the trial 

court in making evidentiary . . . rulings. Thus, rulings on the admission of 

evidence . . . are committed to the discretion of the trial court. Absent a few 

exceptions, this Court will review evidentiary . . . rulings of the circuit court under 

1

This rule provides that upon request of the defendant, the State shall disclose a written 

summary of expert testimony it intends to offer during its case-in-chief, which summary must 

describe the witness’s opinions, the bases and reasons therefore, and the witness’s qualifications. 

W. Va. R. Crim. Pro., Rule 16(a)(1)(E). 

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an abuse of discretion standard. 

State v. Swims, 212 W.Va. 263, 269-70, 569 S.E.2d 784, 790-91 (2002) (quoting Syl. Pt. 9, 

Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997)). After 

considering the parties’ arguments, we find that the circuit court did not abuse its discretion in 

admitting this testimony or in denying the motion for new trial on this basis. 

The treating physician Dr. Gregory Allen, without objection, was qualified as an expert in 

the field of emergency medicine. He offered his opinion that Mr. Nelson’s injuries “were 

consistent with the complaint that he walked in [to the hospital] with that day.” This evidence 

was sufficiently covered by the State’s pre-trial disclosure that provided, “Dr. Allen will testify 

regarding his medical education, training, and experience, and then offer expert testimony 

regarding his examination of the victim, Vincent Rousseau Nelson, and findings and resulting 

diagnosis and/or treatment. He will further offer expert testimony regarding his opinion of the 

injuries and healing.” (Emphasis added.) Petitioner admits that Mr. Nelson’s medical records 

were provided to the defense pre-trial. These medical records reflect that Mr. Nelson told the 

hospital staff that he had been struck in the head with a gun.2 Dr. Allen explained that a patient’s 

explanation of what happened is how the doctor begins his assessment of the patient’s medical 

needs. Furthermore, petitioner also had the police report, and the police report included Mr. 

Nelson’s statement that petitioner and Mr. Young struck him in the head with their guns. As the 

circuit court correctly recognized, this area of inquiry should not have come as any surprise to 

the defense. We, therefore, find no error with regard to the admission of Dr. Allen’s testimony. 

In his second assignment of error, petitioner asserts that the circuit court erred in 

permitting the State to offer testimony that his identity was previously known to law enforcement 

officers. He asserts that the admission of this evidence violated an in limine order barring the 

State from offering evidence about petitioner’s prior criminal history. As we explained above, a 

circuit court’s rulings on the admission of evidence are reviewed for an abuse of discretion. After 

a review of the trial transcript, we find no abuse of discretion. 

During cross-examination of the victim, Mr. Nelson, defense counsel questioned whether 

he had correctly identified his assailant, someone he knew only by the nickname “Bum” 

Johnson. Defense counsel elicited testimony that Mr. Nelson had initially believed the 

petitioner’s first name was “Charles.” In light of those questions, the prosecutor inquired of the 

investigating officer, Officer Custer, about the method he used to determine the real name of 

“Bum” Johnson: “How were you able to, based on your interview with Mr. Nelson and Ms. 

Waldron and Ms. Doughtery, identify James Johnson to be Bum Johnson?” Defense counsel 

objected, and the trial court agreed with the State that the defense had put identity in issue for the 

jury. After talking with the lawyers, the trial court indicated that the officer could answer the 

question without violating the pre-trial order. The circuit court permitted the prosecutor to elicit 

from Officer Custer that other officers had helped identify petitioner because one of the officers 

used to live beside petitioner. Because there was no mention or suggestion of any prior criminal 

record, the in limine order was not violated. Furthermore, it was not an abuse of discretion for the 

2

Petitioner has not included the medical records in the appendix record on appeal. 

However, Dr. Allen testified to their contents, and the trial transcript is in the appendix record. 

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trial court to allow this testimony because petitioner’s counsel had raised this area of inquiry. 

Accordingly, we find no merit to this assignment of error. 

Finally, petitioner argues that there was insufficient evidence to convict him of malicious 

assault beyond a reasonable doubt. With regard to claims of sufficiency of the evidence, we held 

the following in State v. Guthrie: 

1. 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. 

. . . . 

3. 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. 

Syl. Pts. 1 and 3, id., 194 W.Va. 657, 461 S.E.2d 163 (1995). Furthermore, 

[w]hen 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, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). 

In West Virginia Code § 61-2-9(a), malicious assault is defined as “[i]f any person [does] 

maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with 

intent to maim, disfigure, disable or kill, he shall . . . be guilty of a felony[.]” After a review of 

the parties’ arguments and the trial transcript, and viewing the evidence in a light favoring the 

State’s theory, we find that petitioner has failed to meet his heavy burden of challenging the 

malicious assault conviction. It is undisputed that petitioner picked up Co-Defendant Young and 

went to the victim’s motel; petitioner and Co-Defendant Young entered the motel room; and an 

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altercation ensued. Mr. Nelson testified that petitioner and Mr. Young struck him in the head 

with their guns. Ms. Taulton testified that she saw part of the attack through the motel room’s 

window, where she witnessed petitioner and Co-Defendant Young striking Mr. Nelson, and then 

petitioner and Mr. Young ran away. During the altercation, Mr. Nelson received a concussion 

and injuries to the front and back of his head that required medical treatment. Although there was 

conflicting testimony about who attacked whom first, and about whether petitioner and CoDefendant Young had firearms, such evidentiary conflicts and credibility questions were 

resolved by the jury.3 

Petitioner argues that to find him guilty of malicious assault, the jury would have had to 

believe Mr. Nelson’s testimony—but to find him not guilty of the remaining charges, the jury 

would have had to believe Mr. Young’s testimony. We find no merit to this argument. First, the 

jury was free to resolve credibility issues as it saw fit, and the jury may well have believed some, 

but not all, of any particular witness’s testimony. Second, to the extent that petitioner seems to be 

asserting that the verdicts were inconsistent, that would not constitute a basis for reversal. See 

State v. Hall, 174 W.Va. 599, 602-603, 328 S.E.2d 206, 210-211 (1985) (discussing U.S. v. 

Powell, 469 U.S. 57 (1984) and Dunn v. U.S., 284 U.S. 390 (1932), which summarize reasons 

why appellate review on the basis of inconsistent verdicts is not generally available). 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 13, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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One witness for the State, Nancy Doughtery, did give trial testimony that conflicted with 

the testimony of other State’s witnesses and with her own initial statement to police. However, 

there was evidence offered at trial to impeach Ms. Doughtery’s credibility. Furthermore, 

although Ms. Doughtery asserted that she saw other men, not petitioner and Mr. Young, enter the 

room and assault Mr. Nelson, even Mr. Young testified that he and petitioner were in the motel 

room and involved in the altercation. It was for the jury to weigh Ms. Doughtery’s testimony and 

credibility. 

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