STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent August 31, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0732 (Hampshire County 13-F-66) OF WEST VIRGINIA 

Robert Glenn Ford, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Robert Glenn Ford, by counsel Timothy M. Sirk, appeals the Circuit Court of 

Hampshire County’s May 29, 2014, order sentencing him to one to fifteen years in prison for his 

conviction of one count of delivery of a controlled substance, in violation of West Virginia Code 

§ 60A-4-401. The State of West Virginia, by counsel Julie A. Warren, filed a response in support 

of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his 

motion for a mistrial based on an alleged violation of Rule 404(b) of the West Virginia Rules of 

Evidence. 

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. 

In September of 2014, a grand jury returned an indictment against petitioner, charging 

him with one count of delivery of heroin, a Schedule I controlled substance. In March of 2014, 

petitioner’s jury trial commenced in the Circuit Court of Hampshire County. At trial, the State 

presented evidence that law enforcement officers arranged for a confidential informant (“CI”) to 

make a “controlled buy” of heroin from petitioner in February of 2013. Captain John Eckerson of 

the Hampshire County Sheriff’s Office testified that the CI was provided $150 in premarked 

currency and equipped with a video and audio recording device to record the controlled buy. 

Without objection, the entire video of the drug transaction was admitted into evidence and 

played for the jury, including the conversation between the CI and petitioner occurring after the 

controlled buy was complete. In addition to corroborating Captain Eckerson’s testimony, the CI 

testified that, once outfitted with $150 and the recording device, she entered petitioner’s 

residence and purchased three capsules of heroin from him for $120. The CI then testified that 

she used the remainder of the premarked currency, which was $30, to pay a debt she owed to 

petitioner “from, I don’t know, a previous time.” Petitioner objected to the CI’s testimony citing 

Rule 404(b) of the West Virginia Rules of Evidence. The circuit court sustained petitioner’s 

objection and informed the jury that it was to disregard the statement. Following the circuit 

court’s ruling, petitioner moved for a mistrial based on the testimony presented. In objecting to 

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petitioner’s motion, the State argued that the information was “intrinsic evidence” and that the CI 

had not stated that the prior debt to petitioner was the result of a drug transaction. The circuit 

court denied petitioner’s motion for a mistrial. The jury ultimately found petitioner guilty as 

charged in the indictment. 

In April of 2014, the circuit court sentenced petitioner to one to fifteen years in prison for 

his conviction. In May of 2014, the circuit court filed an amended sentencing order.1 This appeal 

followed. 

We have previously held that “[t]he decision to declare a mistrial, discharge the jury, and 

order a new trial in a criminal case is a matter within the sound discretion of the trial court.” Syl. 

Pt. 8, State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989). “A trial court is empowered to 

exercise this discretion only when there is a ‘manifest necessity’ for discharging the jury before 

it has rendered its verdict.” State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983). 

We have also explained that “[t]he determination of whether ‘manifest necessity’ that will justify 

ordering a mistrial over a defendant’s objection exists is a matter within the discretion of the trial 

court, to be exercised according to the particular circumstances of each case.” Syl. Pt. 3, Porter 

v. Ferguson, 174 W.Va. 253, 324 S.E.2d 397 (1984). “Manifest necessity” warranting a mistrial 

arises from various circumstances, but must be forceful and appear prejudicial to the accused or 

the State. Syl. Pts. 1-3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972). 

Significantly, “[t]his power of the trial court must be exercised wisely; absent the existence of 

manifest necessity, a trial court’s discharge of the jury without rendering a verdict has the effect 

of an acquittal of the accused and gives rise to a plea of double jeopardy.” State v. Williams, 172 

W.Va. 295, 304, 305 S.E.2d 251, 260 (1983) (internal citations omitted). With this standard in 

mind, we turn to the case sub judice. 

On appeal, petitioner assigns error to the circuit court’s denial of his motion for a mistrial 

based on the CI’s statement that she owed him a debt. Petitioner argues that the statement 

implied that petitioner provided drugs to the CI on a prior occasion and, therefore, was subject to 

the procedures set forth in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), which 

were not followed in this case.2 However, at trial, the circuit court sustained petitioner’s 

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It is unclear from the record on appeal and the parties’ briefs why the circuit court 

amended its sentencing order entered in April of 2014. We also note that petitioner has since 

been granted parole. 

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We explained in McGinnis that 

[w]here an offer of evidence is made under Rule 404(b) of the West 

Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West 

Virginia Rules of Evidence, is to determine its admissibility. Before admitting the 

evidence, the trial court should conduct an in camera hearing as stated in State v. 

Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and 

arguments of counsel, the trial court must be satisfied by a preponderance of the 

evidence that the acts or conduct occurred and that the defendant committed the 

acts. If the trial court does not find by a preponderance of the evidence that the 

(continued . . .) 

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objection to the CI’s statement. As acknowledged by petitioner in his brief to this Court, the 

circuit court then “instructed the jury to disregard the statement.” Furthermore, the CI did not 

explain why she owed petitioner a debt before the circuit court sustained that objection. The 

circumstances presented in this case do not rise to the level of such apparent prejudice that the 

circuit court was required to find manifest necessity for discharging the jury. Based on the 

particular circumstances of this case, we find that the circuit court did not abuse its discretion in 

denying petitioner’s motion for a mistrial. 

For the foregoing reasons, the circuit court’s May 29, 2014, sentencing order is hereby 

affirmed. 

Affirmed. 

ISSUED: August 31, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

acts or conduct was committed or that the defendant was the actor, the evidence 

should be excluded under Rule 404(b). If a sufficient showing has been made, the 

trial court must then determine the relevancy of the evidence under Rules 401 and 

402 of the West Virginia Rules of Evidence and conduct the balancing required 

under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then 

satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on 

the limited purpose for which such evidence has been admitted. A limiting 

instruction should be given at the time the evidence is offered, and we recommend 

that it be repeated in the trial court's general charge to the jury at the conclusion of 

the evidence. 

193 W.Va. at 147, 455 S.E.2d at 516, Syl. Pt. 2. 

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