1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs.) No. 17-0698 (Marshall County 15- F-59 and 15-F-60)

Michael Bowman, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Michael Bowman, by counsel Matth ew Brummond, appeals the Circuit Court of Marshall County’s July 20, 201 7, order sentencing him followi ng his conviction of various sex crimes. Respondent State of West Virginia , by counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On appeal, peti tioner asserts that the circuit court erred in failing to declare a mistrial following the State’ s dismissal of certain charges midway through

trial.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On November 10, 2015, the Marshall County Grand Jury returned two indictments charging petitioner with committing various sex cr imes. The indictment in case number 15-F-59 charged petitioner with four counts of sexual abus e by a parent, guardian, custodian or person in a position of trust; two counts of first-degree sexual abuse; two counts of first-degree sexual assault; and one count of child abuse resulting in bodily injury by a parent, guardian or custodian. These charges identifie d E.W. as the victim. In a se cond indictment, case number 15- F-60, where the victim was identified as H.S., pe titioner was charged with three counts of firstdegree sexual abuse and one count of second-degree se xual assault.

On June 3, 2016, the circuit court consolidated the two cases for trial, and trial began on May 19, 2017. During trial, one of the investigating officers, Tr ooper Bryan Gaus, was called to testify. Sensing that Trooper Gaus ’s testimony was veering toward allegations that occurred in another county, petitioner’s c ounsel objected, and both parties ap proached the bench to discuss the anticipated testimony. Petitioner’s counsel ar gued that evidence concerning any crimes that took place outside of the county was inadmissible under Rule 404(b) of the West Virginia Rules 

### FILED
November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 of Evidence. 1 Specifically, petitioner’s counsel sought to limit testimony concerning an act of sexual intercourse alleged between petitioner and E.W. as well as an instance where petitioner placed his penis on E.W.’s hand. The circuit court found that the evidence did not constitute Rule 404(b) evidence, but, instead, was intr insic to the offenses charged:

Here, these allegations involve the sa me alleged victim, the same alleged [d]efendant. I went back and looked at the indictments, and it appears to be very close temporally, in the same time peri od, and essentially the same alleged acts that are part and parcel of the counts of the indictment regarding [E.W.] in this

case.

Accordingly, the court found the evidence admi ssible as intrinsic, res gestae evidence.

Shortly thereafter, the State informed the cour t, outside the presence of the jury, that,

[a]fter more contact with all of our w itnesses, including the victim, I don’t think that the State can go forw ard in good faith with C ounts Two and Four [and Six and Eight] based upon the jurisd ictional element. . . . They very well may have happened in Marshall County, but knowi ng that I cannot – at one point we thought certain witnesses were going to tie that – those incidents into Marshall County with photographs and so forth, and maybe that’s true. Maybe I’m being premature here and I should have let the ju ry decide, but I just think in good faith that – [.]

The State clarified its intent to dismiss four counts: two sexual abuse by a parent, guardian or custodian charges; one first-degree sexual abuse charge; and one first-degree sexual assault charge. These charges covered two separate incidents. The first incident was alleged to have occurred by petitioner placi ng his penis between E.W.’s le gs and buttocks. The second incident was alleged to have occurred by peti tioner placing his penis into E.W.’s vagina.

Petitioner argued for a mistrial claiming that the jury was tainted by the State’s opening statement, which included references to the now dismissed counts. The trial court, however, was not persuaded by petitioner’s claims of prejudice. The court stated,

I mean, honestly, that happens all the tim e in courtrooms across the country. As the trial develops, the State – the evidence doesn’t come in as they expect and the case doesn’t go as they expect and counts get[] dismi ssed or the jury just simply finds the [d]efendant not guilty, which has happened right here in this courtroom

when the State hasn’t met its burden with regard to those counts. They hear about it in opening, but then by the time the trial’s over, they haven’t heard the evidence to support it. That’s just – that ’s just the way trial works.

1 Rule 404(b) prohibits the introduc tion of “[e]vidence of a cr ime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.”3 Nonetheless, petitioner’s objections continued:

To prevent me from being able to cross- examine these witnesses that you allege this, you went to law enforcement and th en it made it up through the channels to prosecution, through the grand jury, through trial, and now you’ve backed off or you’ve changed your version to some ex tent that warranted dismissal, it undermines our entire defense. That is our defense to probably each and every one

of these counts.

The court responded that “the prosecution’s decisi on as to whether or not in their opinion the case can be supported by the evid ence as it has developed and it ha s come in, that decision is

irrelevant to the victims.” The court declined to grant a mistrial, and petiti oner’s trial continued.

At the conclusion of trial, with respect to the remaining charges concerning E.W., the jury found petitioner guilty of one count each of sexual abuse by a custodian, first-degree sexual abuse, and first-degree sexual assault. The jury acquitted petitioner of one count of sexual abuse by a custodian and the count of child abuse resulti ng in bodily injury. With respect to the charges concerning H.S., the jury found pe titioner guilty of tw o counts of first-degree sexual abuse and acquitted him of the remaining first-degree sexual abuse and second-degree sexual assault

counts.

On July 5, 2017, the parties appeared for se ntencing. The court sentenced petitioner to

consecutive terms of incarceration that resulted in an effective sentence of not less than twentyeight nor more than seventy years. The court’s sentence was memorialized in its July 20, 2017, “Sentencing Order.” It is from th is order that petitioner appeals.

Petitioner’s lone assignment of error on appe al is that the circuit court should have

declared a mistrial when the St ate dismissed the counts “midway through its case[.]” Petitioner asserts that the untimely dismissa l “fundamentally changed the natu re of [the State’s] case and unfairly undermined [his] theory of defense.” Speci fically, petitioner conte nds that he “prepared to refute a rape case[,]” and that a “critical component of hi s intended defense was (very) justified incredulity concerning E.W.’s accusati on he vaginally raped her when she was such a young child without anyone noting or reporting injuries.” Petiti oner claims that the State’s dismissal of those charges transformed the case to one “concerning acts unlikely to leave overt signs of abuse.” Petitioner also claims that, by dismissing the counts, th e allegations of rape became res gestae evidence that witnesses could discuss “in general term s . . . without exposing details upon which [p]etitioner could cross-examine.” 2 Further, “[p]etitioner could not fully explore his theory of defense because doing so w ould require him, rather than the State, to

introduce the details of the most heinous of E.W.’s accusations.” Finally, a mistrial was necessary because “the court could not grant a continuance for [p]etitioner to work out a replacement theory of defense[.]”

We have previously held that “[t]he decisi on 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.”

2 Petitioner does not argue that the circuit co urt erred in admitting this evidence as res

gestae.4 State v. Williams , 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983) (citation omitted). However,

trial courts are authorized to exercise this di scretion “only when there is a ‘manifest necessity’ for discharging the jury before it has rendered its verdict.” Id. (citation omitted). “This power of the trial court must be exercised wisely; absent th e existence of manifest necessity, a trial court’s discharge of the jury without re ndering a verdict has the effect of an acquittal of the accused and gives rise to a plea of double jeopardy.” Id. (citation omitted).

We find no error in the circu it court’s refusal to declare a mistrial following the State’s dismissal of charges it believed it could no longer prove. Petitioner’s primary argument in support of his claim is that the nature of the case changed, and that he was hamstrung in arguing the “incredulity” of E.W.’s claims of vagi nal rape. The record simply does not support petitioner’s argument. To the contrary, the record is replete with instances of petitioner’s counsel inquiring into these claims, and culminates in counsel’s closing argument summarizing petitioner’s position on E.W.’s credibility thusly: “Folks, the notion that an adult male could engage in sexual intercourse with a baby, a toddler four and five years old is probably the most horrific thing that can ever be alleged. You don’t think somebody would have saw [sic] that?” The circuit court, in considering petitioner’s arguments regarding his ability to present his defense, noted, “the decision of th e prosecutor is irrelevant to [E .W.’s] credibility[,]” and E.W.

could be cross-examined on the events “ad infiniti um.” Indeed, the record reflects that E.W. was cross-examined extensively on these events, and pe titioner’s defense was argued to the jury in his closing argument. As such, we find no merit to petitioner’s claim.

For the foregoing reasons, we affirm the ci rcuit court’s July 20, 2017, sentencing order.

Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment