IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

SEPTEMBER 2021 TERM

No. 21-0404

STATE OF WEST VIRGINIA, EX REL.

SCOTT R. SMITH, PROSECUTING ATTORNEY, OHIO COUNTY

Petitioner

V. 

THE HONORABLE MICHAEL J. OLEJASZ,

JUDGE OF THE CIRCUIT COURT OF 

OHIO COUNTY, WEST VIRGINIA, AND 

CHANDIS WESLEY LINKINOGGER, DEFENDANT

Respondents

________________________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED

_________________________________________________________

Submitted: October 26, 2021

Filed: November 19, 2021

CHIEF JUSTICE JENKINS delivered the Opinion of the Court. 

Gail W. Kahle

Assistant Prosecuting Attorney 

for Ohio County, West Virginia

Wheeling, West Virginia

Attorney for Petitioner

Gerasimos (Jerry) Sklavounakis

Sklavounakis Law Offices

Wheeling, West Virginia

Attorney for Respondent,

Chandis Wesley Linkinogger

FILED

November 19, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE WOOTON concurs and reserves the right to file a separate opinion. 
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v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds 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 recognized by State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017).

2. “A writ of prohibition will not issue to prevent a simple abuse of 

discretion by a trial court. It will only issue where the trial court has no jurisdiction or 

having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syllabus 

point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). 

3. “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 
ii

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter 

of law; (4) 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 (1997).
1

Jenkins, Chief Justice:

Petitioner Scott R. Smith, Prosecuting Attorney for Ohio County (“the 

State”), invokes this Court’s original jurisdiction, and petitions this Court to issue a writ 

of prohibition against the respondent, the Honorable Michael J. Olejasz, Judge of the 

Circuit Court of Wood County (“circuit court”), prohibiting the circuit court from enforcing

the April 22, 2021 order dismissing two counts of the indictment in the underlying criminal 

case, declaring a mistrial, and ruling that the subject matter of the dismissed counts could 

not be mentioned at any future trial on the remaining counts. Below, the circuit court 

granted a motion to dismiss orally raised by respondent and defendant below, Chandis 

Wesley Linkinogger (“Mr. Linkinogger”), after he alleged that the State violated various 

discovery orders. In granting the motion to dismiss, two counts of sexual assault in the 

second degree were dismissed with prejudice. 

Having considered the briefs submitted on appeal, the appendix record, the 

parties’ oral arguments, and the applicable legal authority, we conclude that the circuit 

court failed to properly analyze the necessary factors for sanctions against the State 

pursuant to our holding in State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 

(1996). Accordingly, and for the reasons set forth below, we grant the requested writ of 

prohibition and prohibit the enforcement of the April 22, 2021 order that dismissed two 

counts of sexual assault in the second degree with prejudice. 
2

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Linkinogger was indicted by a grand jury in January of 2021 for the 

crimes of strangulation, burglary, and two counts of sexual assault in the second degree. 

The indictment stated that on or about September 11, 2020, in Wheeling, West Virginia, 

Mr. Linkinogger forcibly entered into the victim’s home and strangled her as he sexually 

assaulted her. The victim then presented to Wheeling Hospital where a Sex Crime Kit was 

collected. 

At the arraignment in January of 2021, the State tendered its discovery 

disclosure which contained the following: (1) identity of two treating physicians from 

Wheeling Hospital as expert witnesses; (2) notes taken by the nurse during the completion 

of the Sex Crime Kit; and (3) results of a urine toxicology screen (completed at Wheeling 

Hospital) from the victim showing positive results for cocaine, THC, and benzodiazepines. 

The discovery disclosure did not include any witness, lay or expert, identified by the State 

from the West Virginia State Police Forensic Laboratory (“Forensic Lab”). The State 

contends that it never needed a Forensic Lab witness because on September 11, 2020, after 

being advised of his Miranda rights, Mr. Linkinogger gave an extended interview to a 

detective in which he admitted to having sexual relations with the victim. However, Mr. 

Linkinogger claimed that the sexual relations were consensual.
3

On February 23, 2021, Mr. Linkinogger filed a motion to compel seeking

various categories of evidence and accusing the State of running afoul of its duty to provide 

exculpatory evidence in accordance with Rule 32.02(a) of the West Virginia Trial Court 

Rules.1

 Among the items sought was the Forensic Lab results from its testing the materials 

collected at Wheeling Hospital. On March 9, the State filed a response to the motion to 

compel in which it indicated—with regard to the Forensic Lab results—that “[t]he results 

of all examinations and tests performed have been provided to [Mr. Linkinogger].” 

Then, on March 12, the parties came together for a hearing on the motion to 

compel. First, counsel for Mr. Linkinogger argued that the State was withholding the 

“results of examinations and the tests that have been performed.” In response, the State 

declared that while certain examination tests were disclosed, it was unsure if the materials 

of the Sex Crime Kit were ever sent to the Forensic Lab or tested because it had no intention 

of using any of the results at trial:

MR. KAHLE: I don’t believe it was even sent to Charleston. 

It’s probably down there. We – when this case – that was 

collected, as it generally is, by a S.A.N.E. nurse at the 

1 Rule 32.02(a) of the West Virginia Trial Court Rules provides:

In all criminal cases, the attorney for the State shall advise the 

attorney for the defendant and provide evidence favorable to 

the defendant on the issue of the defendant’s guilt or 

punishment without regard to materiality, within the scope 

of Brady v. Maryland, 373 U.S. 83 (1963), including the 

existence and substance of any payments, promises of 

immunity, leniency, preferential treatment, or other 

inducements made to prospective witnesses, within the scope 

of United States v. Giglio, 405 U.S. 150 (1972).
4

Wheeling Hospital. I don’t intend to – if it was sent for testing, 

I don’t intend to use said results. You’ll see in the State’s 

disclosure there are not lab technicians indicated or examiners. 

I don’t have any results. If it – it’s been sent to Charleston. 

I’ve not been on their rear-end to get it done because we aren’t 

in possession – what I believe – it’s not been tested by the 

Court yet, but what I believe is a pretty rock solid statement of 

[Mr. Linkinogger] admitting that there was lots of sexual 

contact as between the defendant and [the victim] on 

September 11th.

So it’s true, there are certain examination tests which have been 

disclosed, and, in particular, that’d be the hospital and 

treatment records. But there is no – we don’t have it. 

. . .

And I don’t intend to introduce it at trial.

The parties then went off the record to determine whether the Sex Crime Kit was ever sent 

to the Forensic Lab and if so, whether results exist.

MR. KAHLE: It has been sent. He doesn’t know the answer 

to that question. I’m going to ask him to advise the Court, 

myself, and Mr. Lantz by the end of today. But I have not seen 

any need for them to be – for it to be rushed. . . . I didn’t do 

that in this case because of the admissions made on September 

11, 2020. 

Upon learning that the Sex Crime Kit was sent, the circuit court ordered that the “evidence 

be rushed by the West Virginia State Police Crime Lab.” Additionally, a true copy of the 

lab report, dated February 22, 2021, was obtained, and was provided to Mr. Linkinogger’s 

counsel in open court. A review of the report indicates that trace amounts of male DNA 

was found on the two swab samples submitted. The report also suggests that no PCR DNA

(identifying DNA) analysis had been performed. Thus, the report suggested that “DNA 

testing results will be the subject of a separate report.” At the time, there were no known 
5

samples of Mr. Linkinogger’s DNA or of any other person with which to compare DNA 

results. 

Thereafter, on March 17, at 10:29 a.m., counsel for the State received an 

email containing a “Motion for Order to Rush Toxicology/Lab Reports” and a “Proposed 

Order” granting the requested relief. In the motion, Mr. Linkinogger sought the toxicology 

results from the Sex Crime Kit collected at Wheeling Hospital on September 11, 2020, and 

submitted to the Forensic Lab. Within a half hour of receiving the email, a court assistant 

emailed counsel for the State and asked if there were any objections to the proposed order. 

Eighteen minutes later, at 11:18 a.m., counsel responded and stated that it could not take a 

position yet—it needed to make inquiry of the Forensic Lab’s ability to comply with the 

order. The State’s email to the court assistant stated:

Be advised that I have a call to the WVSP Toxicology Chief, 

Erin Fisell [sic] regarding the request to get their position. 

Additionally, Defendant is in possession of the toxicology 

screen from Wheeling Hospital, and I will be filing a Motion 

in Limine to be heard on the April 2, 2021, pre-trial to preclude 

evidence of drug abuse from the trial. Thank you. 

At 11:49 a.m., counsel for the State received an email from the court assistant which 

contained the proposed order which had been entered by the court. The order was concise 

and referred only to compelling “Toxicology and any remaining lab result.” 
6

The next day, on March 18, the State conversed via email with the Forensic 

Lab’s Toxicology Chief, Erin Feazell. During the conversation, the Forensic Lab noted 

that it was unable to comply with the order as the only specimen submitted was urine:

Mr. Kahle, I am in receipt of a court order in case 21-F-4 MJO 

from the Defendant Chandis Linkinogger’s attorney Herman 

D. Lantz (see attached). The order requests expedited testing 

on the Toxicology samples that were submitted to the lab. The 

only specimen submitted in the case was urine. Currently our 

laboratory is not performing testing on urine. With your 

permission, I can terminate the testing on this case and return 

the Toxicology kit to the investigation officer so you can 

determine whether to send the samples to a private laboratory 

for testing. Please feel free to contact me if you have any 

questions. 

Because of the Forensic Lab’s inability to comply with the proposed order, and in an effort 

to avoid additional allegations of evidence hiding and discovery violations, the State 

requested, and was granted, an emergency hearing for that same afternoon. 

During the virtual hearing, it became clear that the Forensic Lab was unable 

to test the urine sample, and, therefore, was unable to comply with the order “rushing lab 

results.” The State acknowledged that upon learning of the Forensic Lab’s inability to 

comply, it immediately acted, and sought guidance from the court on how to proceed:

MR. KAHLE: I immediately notified everybody of the fact 

that the State Police could not comply with the Court’s Order. 

I asked her to put that in writing. I then forwarded that e-mail 

onto everybody, which started, then, a series of e-mails. I first 

asked for that urine to be sent back – for it to be held onto, and 

to go wherever it needed to go. Um – the response was that 

they don’t do that. What they do – and this must be State Police 

guidelines, Judge – will return it to the requesting police 

agency. With that, Judge, I said, “Can we overnight it to the 
7

requesting police agency?” Um – they’re requiring a case 

closure form – and I think all the other testings been done –

they are requiring a case closure form, and they can’t get it 

back here until Monday. 

Given the fact that we’re running – the State Police is 

potentially running afoul of the Court’s Order – I felt that 

whatever – I don’t want to be caught in a “got you”, Judge. I 

wanted some guidance from the Court as to where to go from 

here. 

After hearing testimony from both parties, the Court made a determination:

THE COURT: Very good. Then how we’ll proceed then is, 

Mr. Kahle, please contact Miss Feazell, or whoever – “Feezell” – request that they return Item 2, the toxicology sample 

to the sending agency – the Wheeling Police Department –

because they can’t test it. And then, once the Wheeling Police 

Department has it back and in their safe possession – um – if 

the parties want to put a draft Order to the Court, to release it 

to the defense for testing, we can do that. 

If there is an issue where they will not release it, for whatever 

reason, and the parties want to put another Order before the 

Court, I would be happy to – I’m not going to be in tomorrow, 

but I’ll be happy to stop by and review it and sign it, if it does 

become a problem. 

Also, Mr. Lantz, after you’ve been able to have a meaningful 

conversation with your client regarding these – these issues, 

please inform Mr. Kahle as to your position with regard to 

possible DNA sampling from your client and – um – the Court 

will, again, execute any necessary orders. 

(Emphasis added). From the testimony provided, two things became ultimately clear: 

(1) the Lab could not run toxicology on the urine sample, and thus it would be returned to 

the Wheeling Police for testing at another lab of Mr. Linkinogger’s choosing; and (2) issues 

of PCR DNA testing would be deferred pending a discussion between Mr. Linkinogger 

and his counsel. Subsequent to the hearing, the urine was sent to a lab in Pennsylvania for 
8

toxicology testing; however, the record does not indicate that counsel for Mr. Linkinogger

ever expressed a desire for PCR DNA testing after the March 18 emergency hearing. 

On April 13, 2021, the first day of trial began by seating a jury. A jury was 

seated and sworn in during the first day. The next day, during the second day of trial, the 

parties met for a hearing in chambers. Counsel for Mr. Linkinogger made an oral motion 

for complete dismissal of charges. In the oral motion, counsel for Mr. Linkinogger made 

allegations of discovery violations and argued that the State acted in bad faith in failing to 

ensure that the PCR DNA testing was completed—which he claimed might somehow 

expose evidence tending to exculpate Mr. Linkinogger. He also argued that toxicology 

results would have yielded results showing the level of the victim’s intoxication, thus 

showing the victim’s pain threshold/lowered inhibitions which was consistent with the 

defense theory of consent. 

The State argued that PCR DNA testing was never requested by Mr. 

Linkinogger, and that without his own sample, the results would be irrelevant and 

incomparable. The State further contended that if Mr. Linkinogger felt that such evidence 

was needed for the defense, then a continuance to allow for such testing would be the 

appropriate remedy. Further, the State noted that the toxicology report from Wheeling 

Hospital that showed that the victim’s urine contained cocaine, THC, and benzodiazepines

had already been provided to the defense. The State also reminded the circuit court that 
9

after the March 18 hearing, the urine sample had been sent to a laboratory chosen by the 

defense.

During this meeting in chambers, the circuit court orally ruled that the State 

and the Forensic Lab violated the March 17 order compelling test results, and the January 

21 scheduling order, and thereby dismissed with prejudice, counts three and four (sexual 

assault in the second degree) of the indictment. In addition, the circuit court also declared 

a mistrial with regard to the strangulation and burglary counts and made a ruling that any 

and all references to counts three and four were prohibited at any rescheduled trial. This 

decision was memorialized in the April 22, 2021 order. This petition for writ of prohibition 

followed. 

II. 

STANDARD FOR ISSUANCE OF WRIT

This Court has previously found that there are limited circumstances in which 

the State may request a writ of prohibition in a criminal matter. We held in Syllabus point 

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

other grounds as recognized by State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017), 

that 

[t]he 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 
10

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.

Accord State ex rel. State v. Sims, 239 W. Va. 764, 767, 806 S.E.2d 420, 423 (2017). 

Furthermore, in Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160 

W. Va. 314, 233 S.E.2d 425 (1977), we held that “[a] writ of prohibition will not issue to 

prevent a simple abuse of discretion by a trial court. It will only issue where the trial court 

has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 

53-1-1.” This Court will grant writs of prohibition 

to correct only substantial, clear-cut, legal errors plainly in 

contravention of a clear statutory, constitutional, or common 

law mandate which may be resolved independently of any 

disputed facts and only in cases where there is a high 

probability that the trial will be completely reversed if the error 

is not corrected in advance.

Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by 

statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va. 

564, 759 S.E.2d 795 (2014).

Moreover, 

[i]n 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 
11

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) 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.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). With these 

standards in mind, we now examine the State’s request for a writ of prohibition. 

III.

DISCUSSION

At issue in the case sub judice is the ruling of the circuit court dismissing, 

with prejudice, two counts of sexual assault in the second degree as a sanction for alleged 

discovery violations. In ruling as such, the circuit court’s order not only dismissed two 

counts of the indictment, but also declared a mistrial with regard to the other two counts: 

strangulation and burglary. The State maintains that the circuit court abused its discretion 

and “wrongfully deprived the State [of] its right to prosecute Mr. Linkinogger for serious 

felony allegations” when it dismissed the indictment as a discovery sanction. 
12

Mr. Linkinogger rebuts the arguments of the State and argues that the circuit 

court properly dismissed the two sexual assaults counts because the State failed to produce 

evidence crucial to the resolution of the case. Moreover, he contends that the State is not 

entitled to a writ of prohibition because (1) the circuit court’s order was not so flagrant as 

to deprive the State of its right to prosecute the underlying criminal case; and (2) granting 

the writ of prohibition would violate his rights against double jeopardy.2

2 In his brief, Mr. Linkinogger contends that granting a writ of prohibition 

would violate his rights against double jeopardy. To support this contention, Mr. 

Linkinogger states that he was placed on trial on a valid indictment before a court of 

competent jurisdiction, and a jury was impaneled and sworn. Therefore, because of this, 

his rights against double jeopardy are at issue. 

Because this case is a case of original jurisdiction, the State was unable to 

file a reply brief. As such, during oral argument, the State addressed and provided its 

rebuttal to this argument. While the State acknowledged that the jury was indeed 

impaneled and sworn, it maintains that Mr. Linkinogger’s double jeopardy rights are not 

triggered in this matter because double jeopardy is only triggered when the action taken is 

equated to an acquittal, not whether the action is titled or characterized as an acquittal. We 

agree. In State v. Adkins, this Court stated: 

In the case presently before us Adkins was indicted as the “sole

perpetrator” of the crime of murdering Idona Baker, i.e., as a

principal in the first degree. The evidence, viewed in the light

most favorable to the State, however, showed only that Adkins

had aided and abetted Mooney in the commission of the crime.

Under State v. Bennet, [157 W. Va. 702, 203 S.E.2d 699

(1974)] Adkins was therefore entitled to a directed verdict of

acquittal due to a variance between pleading and proof. The

mere designation of that order as an “acquittal,” however, does

not in and of itself bar a retrial of the defendant. As noted in

footnote 15 of State ex rel. Watson v. Ferguson, [166 W. Va.

337, 274 S.E.2d 440 (1980)] “The critical question is under

what circumstances the first trial aborted and in particular

whether it was aborted by reason of prosecutorial or judicial

‘bad faith,’ including evidentiary insufficiency.” 166 W. Va. at

347, 274 S.E.2d at 445. In the case before us the “acquittal”
13

The two counts of sexual assault in the indictment against Mr. Linkinogger

were dismissed as a sanction for the State’s alleged noncompliance with two court orders: 

(1) the January 21, 2021 scheduling order; and (2) the March 17, 2021 ex parte order 

rushing “Toxicology and any remaining lab results in this matter.” The State first contends 

that no discovery violations actually existed. To support this contention, the State avers 

that its discovery disclosure was provided two weeks before the deadline and contained 

“all the Rule 16 discovery that existed at that time.” The scheduling order stated that 

February 4, 2021 was the State’s discovery deadline. The Forensic Lab report at issue 

was not authored until February 22, 2021, and was provided to defense counsel in open 

court at the March 12 hearing—a full month before the scheduled trial date. Moreover, 

with regard to the March 17 order to compel, the State asserts that the order was entered 

without a hearing, and without the sufficient time necessary for meaningful 

communication with the Forensic Lab. It was not until after the order was entered, that

did not arise from any evidentiary insufficiency or any other

prosecutorial or judicial “bad faith.” Id. Similarly, the

“acquittal” in this case was not based upon “a resolution . . . of

some or all of the factual elements of the offense

charged.” United States v. Martin Linen Supply Co., [430 U.S.

564, 571, 97 S.Ct. 1349, 1354-1355, 51 L.Ed2d 642, 651

(1977).] We are therefore of the opinion that double jeopardy

does not bar a retrial of the defendant upon an indictment

charging him as an aider and abettor in the murder of Idona

Baker.

State v. Adkins, 170 W. Va. 46, 51, 289 S.E.2d 720, 724-25 (1982). 

In the case sub judice, although the Circuit Court dismissed the two counts 

of sexual assault, it cannot be equated as an acquittal. Rather, the dismissal was procedural 

in nature, and therefore Mr. Linkinogger’s rights against double jeopardy are not triggered. 
14

the State learned from the Toxicology Chief that the Forensic Lab did not perform 

toxicology on urine samples, and therefore the urine would be returned for testing at a 

private laboratory, if requested by Mr. Linkinogger. Therefore, because the State 

complied in good faith with both of the orders, the State submits that no discovery 

violations exist. However, even if discovery violations did exist in the present matter, the 

State argues that the remedy imposed—complete dismissal of violent felonies—did not 

comport with the alleged discovery violations and was an inappropriate sanction. We 

agree.

To begin our analysis, we begin with some general observations. Rule 

16(d)(2) of the West Virginia Rules of Criminal Procedure states that 

If at any time during the course of the proceedings it is 

brought to the attention of the court that a party has failed to 

comply with this rule, the court may order such party to permit 

the discovery or inspection, grant a continuance, or prohibit 

the party from introducing evidence not disclosed, or it may 

enter such other order as it deems just under the 

circumstances. The court may specify the time, place and 

manner of making the discovery and inspection and may 

prescribe such terms and conditions as are just.

As this Court stated in State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994), 

“[w]e believe that it is necessary in most criminal cases for the State to share its information 

with the defendant if a fair trial is to result. Furthermore, we find that complete and 

reasonable discovery is normally in the best interest of the public.” Id. at 139, 454 S.E.2d 

at 433. Rule 16 of the West Virginia Rules of Criminal Procedure does not a provide a 
15

bright-line rule for courts to use when dealing with discovery violations. While Rule 16 

contains some examples of potential sanctions, the rule also includes a vague phrase giving 

circuit courts broad latitude: may enter such other order as it deems just under the 

circumstances. 

When reviewing whether a circuit court erred in imposing such a severe 

sanction as complete dismissal, we are guided by this Court’s prior decision in State ex rel. 

Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994). In Rusen, this Court concluded 

that “[t]he scope of appellate review must necessarily be an abuse of discretion standard.” 

Id. at 140, 454 S.E.2d at 434. In making this determination, the Rusen Court examined the 

range of remedies found in Rule 16 of the West Virginia Rules of Criminal Procedure and 

noted that circuit courts are given broad latitude. However, the Court also identified a need 

for clarification and guidance:

This broad language justifies the adding of several other 

remedies or sanctions to the list such as (a) advising the jury to 

assume the existence of facts that might have been established 

by the missing information, (b) holding the violator in 

contempt of court, (c) granting a mistrial, and (d) dismissing 

the charges. We specifically hold that one of the permissible 

sanctions under Rule 16(d)(2) for a discovery violation is a 

dismissal with prejudice.

Id. The Rusen Court continued, and found that determining 

[w]hich remedy is preferable is best left to the discretion of the 

circuit court. Such rulings will not be reversed unless there is 

an abuse of discretion. The circuit court must have discretion 
16

to fashion a remedy for noncompliance that encompasses “a 

fair balancing of the interests of the courts, the public, and the 

parties[,]” recognizing that the dismissal of cases with 

prejudice is a remedy which should be used only in the most 

egregious cases. People v. Taylor, 159 Mich.App. 468, 487, 

406 N.W.2d 859, 869 (1987). 

Id. Next, the Court set forth several factors that must be examined when analyzing whether 

an abuse of discretion occurred. Those factors include, but are not limited to:

(a) the importance and materiality of the information that was 

not disclosed;

(b) the ability of the party to try the case without the 

information or the nature of the prejudice claimed by the failure 

to comply with the discovery order;

(c) the extent to which a continuance or other lesser relief 

would delay the trial or otherwise impact adversely the 

administration of justice;

(d) the degree of negligence involved and the explanation of 

the party’s failure to comply with a discovery request;

(e) the effort made by the party to comply with the discovery 

order;

(f) the number of times the circuit court ordered the party to 

comply with the discovery order; and

(g) in some cases, the severity of the offense.

Id. Finally, the Rusen Court concluded, and elaborated on the role of the circuit court when 

utilizing the aforementioned factors:

Further expansion of these factors is necessary. Once a circuit 

court receives a motion requesting sanctions or relief for 

discovery violations, the circuit court should order, to the full 

extent required by the discovery rules or the court order, an 

immediate disclosure. The relief that is appropriate initially

will depend to a large degree on the reason disclosure was not 
17

timely made and the prejudice resulting from the failure to 

provide timely discovery. Similarly, the circuit court should 

review the frequency and force of the defendant’s objections 

or motions as opposed to attaching significant weight to a pure

pro forma protest. The preferred relief where the party 

responsible for the violation has not acted in bad faith is to 

grant the defendant a continuance giving him or her an 

opportunity to prepare for trial once the discovery materials 

have been made available. Thus, where the violation relates 

to discovery of potential trial evidence, the circuit court is 

advised to grant a continuance sufficient in duration to permit 

the defendant to obtain that evidence and to prepare for trial.

Id. at 140-41, 454 S.E.2d at 434-35 (emphasis added). 

This Court’s decision in Rusen was elaborated upon in State ex rel. Plants v. 

Webster, 232 W. Va. 700, 753 S.E.2d 753 (2012) (per curiam). In Plants, this Court issued 

a writ of prohibition prohibiting the enforcement of a circuit court’s order that excluded 

evidence from trial as a discovery sanction. Id. at 708, 753 S.E.2d at 761. When faced 

with the record before it, the Plants Court analyzed the circuit court’s ruling under the 

Rusen factors and found that the State did not act in bad faith in its dealings with the subject 

evidence. Id. at 707, 753 S.E.2d at 760. Rather, the Court maintained that the conduct at 

issue “was unintentional, and that the State made a reasonable effort to comply with [the 

respondent’s] discovery requests.” Id. Thus, in an effort to correct the abuse of discretion 

below, the Plants Court granted the writ of prohibition because “[w]ithout this writ, the 

State, who has no right to appeal a criminal conviction, may otherwise be without a remedy 

to correct this legal error.” Id. at 708, 753 S.E.2d at 761. 
18

In the case sub judice, on the second day of trial, the parties met in 

chambers—away from the jury—to discuss the alleged discovery violations committed by 

the State. In response to these allegations, the State once again denied that said violations 

occurred, and requested that, “if this is so important to [Mr. Linkinogger], that the remedy 

would be a continuance to get PCR testing done. . . . The results or the remedy should not 

be a dismissal for an adverse inference, but rather a continuance to get these testing results 

done.” Conversely, counsel for Mr. Linkinogger made an oral motion to dismiss the two 

counts of sexual assault because of the State’s failure to comply with the court’s prior 

orders. The circuit court ultimately agreed with Mr. Linkinogger and granted the motion. 

Most significant, in granting the motion to dismiss the two counts of sexual assault in the 

indictment with prejudice, the circuit court cited no legal authority and gave no reasoning 

for its action beyond stating that “the State violated two Court Orders by not producing 

evidence crucial to the resolution of this case.”

The circuit court’s order granting Mr. Linkinogger’s motion to dismiss the 

sexual assault counts from the indictment does not contain any analysis of Rule 16 or the 

Rusen factors—a “necessary analysis.” See, e.g., Plants, 232 W. Va. 700, 706, 753 S.E.2d 

753, 759 (“The lower court’s order granting [respondent’s] motion to suppress the shell 

casings and other evidence does not contain this “necessary analysis.”). Because of this 

omission, we are then left to analyze the circuit court’s ruling using the Rusen factors as 

our guide, based on the limited record before us. 
19

The transcript from the March 12 hearing shows that during a recess, it was 

confirmed that the Sex Crime Kit was sent to the Forensic Lab. During that same hearing, 

a copy of the lab report was provided to Mr. Linkinogger’s counsel in open court. While 

the report showed evidence of male DNA on various parts of the victim’s body, the report 

was clear that no PCR DNA analysis was completed—“DNA testing results will be the 

subject of a separate report.” A few days later, on March 17, the State received an email 

with an attached proposed order compelling lab and toxicology results. Within minutes, 

the State acted and contacted the Forensic Lab to see if toxicology tests were ever 

performed on the urine sample. Before the Forensic Lab could respond, the circuit court 

entered the order. The next day, the Forensic Lab notified the State that it does not perform 

testing on urine. As such, the Forensic Lab offered to return the urine so that further testing 

could be completed at a private lab if Mr. Linkinogger so requested. 

Within hours of learning that it could not comply with the entered order, and 

in a clear effort to avoid any hint of impropriety, the State asked for an emergency hearing. 

The transcript of this hearing—the March 18 virtual hearing—indicates that Mr. 

Linkinogger’s counsel was “more interested in the toxicology results than . . . those DNA 

results.” Counsel for Mr. Linkinogger indicated that he wanted toxicology on the urine 

sample because it could show the victim’s level of impairment, which would assist in the 

defense’s theory of consent. Counsel also confirmed that he was aware that he needed to 

verify whether Mr. Linkinogger wished to have PCR DNA testing performed: “I need to 

discuss with Mr. Linkinogger whether or not he desires to have the remaining testing done. 
20

. . . That’s a conversation that I need to have with him.” This also needed to be confirmed, 

so that Mr. Linkinogger could provide a sample of his own DNA for comparison and 

analysis. From our review of the record, there is nothing to suggest that Mr. Linkinogger 

ever requested the PCR DNA testing after the March 18 hearing. 

More troubling, are defense counsel’s apparent misrepresentations to the 

circuit court during the second day of trial on April 13, 2021. On March 22, 2021, Erin 

Feazell of the Forensic Lab sent an email to defense counsel in which she answered various 

inquiries and documented questions that they had discussed earlier that day:

Would someone be able to testify to impairment based on 

levels of drugs found in the urine? If we tested the sample, we 

would not be able to testify to impairment. I am unsure 

whether or not a toxicologist from a private lab would be able 

to do this. Typically toxicologists can’t testify to impairment 

just based on a number from a lab result. Generally, additional 

information needs to be provided in order to form these types 

of opinions. You would have to contact the lab directly to see 

if they would be able to provide this type of testimony. 

However, despite receiving this response from the Forensic Lab—which clearly establishes 

that it cannot testify to impairment, defense counsel represented to the court on April 13, 

that had the Forensic Lab done toxicology testing on the urine, there would have been 

evidence to “determine what was happening at the time [of the alleged assault], [the 

victim’s] inhibitions and willingness to engage in activity that she may not otherwise be 

willing to engage in.” 
21

From the appendix record, it does not appear that the State negligently or in 

bad faith violated the orders of the circuit court regarding the testing of evidence. Rather, 

the record illustrates the diligent steps taken by the State to ensure its compliance with the 

orders of the court (i.e. requesting an emergency hearing for guidance, continued 

communication with the Forensic Lab, etc.). Additionally, we would be remiss to ignore 

the behavior of defense counsel—which from the record—appears to have taken some 

aspects of this matter out of context in an effort to confuse or obfuscate the facts in this 

case. Based on our review of the appendix record as a whole, and keeping the Rusen

factors in mind, multiple details have become clear: (1) the State made it known early on 

that it did not intend to call any witness from the Forensic Lab; (2) Mr. Linkinogger 

admitted to police that he had lots of sexual interactions with the victim the night of the 

attack; (3) because of Mr. Linkinogger’s admission, the State would not need DNA 

evidence to prove that Mr. Linkinogger was the individual who had sexual relations with 

the victim; (4) within hours of the March 17 order to compel being entered, the State took 

precautionary action to avoid running afoul of the circuit court’s order when it asked for 

an emergency hearing on March 18; (5) the Forensic Lab does not run toxicology tests on 

urine; (6) all parties knew, or became aware that the Forensic Lab did not test the urine by 

the March 18 emergency hearing and the parties agreed to send the urine to a laboratory 

chosen by the defense for further testing; (7) on March 18, Mr. Linkinogger knew that if 

he wanted PCR DNA testing completed, he needed to make his wishes known so that

evidence could be sent to a private laboratory; (8) by the time trial began on April 12, 

defense counsel knew that toxicology results on the urine would not indicate the victim’s 
22

level of impairment, yet counsel represented to the circuit court that he needed those results 

to support his theory of consent and the victim’s inhibitions; and (9) there was no bad faith 

or intentional action on the part of the State. 

When deciding what sanctions to impose for discovery violations, “our 

preference remains for trial courts to grant continuances in most cases.” Plants, 232 W. 

Va. 700, 707, 753 S.E.2d 753, 760. 

The relief that is appropriate initially will depend to a 

large degree on the reason disclosure was not timely made and 

the prejudice resulting from the failure to provide timely 

discovery. Similarly, the circuit court should review the 

frequency and force of the defendants’ objections or motions 

as opposed to attaching significant weight to a pure pro

forma protest. The preferred relief where the party responsible 

for the violation has not acted in bad faith is to grant the 

defendant a continuance giving him or her an opportunity to 

prepare for trial once the discovery materials have been made 

available. Thus, where the violation relates to discovery of 

potential trial evidence, the circuit court is advised to grant a 

continuance sufficient in duration to permit the defendant to 

obtain that evidence and to prepare for trial.

Our cases and the West Virginia Rules of Evidence have 

declared an implicit preference for a continuance when there 

has been a discovery violation. See W. Va. R. Evid. 403 

(“unfair surprise” is not listed as a ground for 

exclusion). See State v. Barker, 169 W. Va. 620, 623, 289 

S.E.2d 207, 210 (1982) (“[e]ven if this were a ‘proper’ case in 

which to claim surprise, the appellant failed to move for a 

continuance, and, therefore, waived his right to one”); Martin 

v. Smith, 190 W. Va. 286, 291, 438 S.E.2d 318, 323 (1993) 

(“even given that the admission of Dr. Adams’ testimony 

prejudiced Dr. Smith’s case, we find such prejudice far from 
23

incurable. Dr. Smith could have easily moved for a 

continuance in order to secure a comparable expert witness”).

Rusen, 193 W. Va. 133, 140-41, 454 S.E.2d 427, 434-35. However, we also recognize that 

there are some circumstances where a continuance is not appropriate. 

If a continuance will cause too great a disruption in the trial 

process, or if a continuance will not dissipate the prejudice 

caused by the nondisclosure, a circuit court should consider 

stronger measures such as dismissal. Sanctions generally 

should not have “adverse effects on the rights of the parties”; a 

dismissal with prejudice necessarily has a substantial effect on 

the interest of the community and the party represented by the 

prosecution.

Id. at 141, 454 S.E.2d 427 at 435. As such, “the sanction of dismissal should be used 

sparingly and only when the prosecution has been derelict in its effort to comply with 

discovery orders.” Id. 

Applying the factors that we have discussed to the instant case, we conclude 

that the circuit court abused its discretion when it dismissed the two counts of sexual assault 

with prejudice as a sanction for alleged discovery violations on behalf of the State. We 

find that the State acted in good faith in its dealings with the forensic evidence in this matter 

and took proper, appropriate precautions to ensure that it abided by the discovery orders 

imposed by the court. The State put forth the effort to comply with the orders at issue, 

which is evidenced by the email communications with the Forensic Lab, and the timely 

request for the emergency hearing. Any alleged discovery violation or delay that may have 

occurred was unintentional, and there is nothing to indicate that a continuance—instead of 
24

a dismissal—would have disrupted or prejudiced Mr. Linkinogger’s case. At the time of 

the dismissal, there had been no continuances, and the record failed to show that the 

presence of PCR DNA analysis or urine toxicology would have had a significant impact 

on the case. As such, this examination illustrates that the circuit court exceeded its 

discretion in issuing such a severe sanction, and we find that the State has sufficiently 

demonstrated “that the court’s action was so flagrant that it was deprived of its right to 

prosecute the case.”

IV.

CONCLUSION

For the reasons set forth above, we conclude that the Circuit Court of Ohio

County abused its discretion and committed clear legal error in dismissing the two counts 

of sexual assault in the second degree as a discovery sanction. As such, we find that the

State is entitled to a writ of prohibition prohibiting the circuit court from enforcing the 

April 22, 2021 order dismissing two counts of the indictment in the underlying criminal 

case, declaring a mistrial, and ruling that the subject matter of the dismissed counts could 

not be mentioned at any future trial on the remaining counts. We vacate the April 22, 

2021 ruling of the Circuit Court of Ohio County and we further direct that the mandate of 

this Court be issued forthwith. 

Writ granted.