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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term 

No. 12-0791 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

V.
 

ROBERT SCOTT R., JR.,
 

Defendant Below, Petitioner
 

FILED
 

January 29, 2014
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Mineral County
 

Honorable Phil Jordan, Judge
 

Criminal Action No. 10-F-147
 

AFFIRMED
 

Submitted: January 15, 2014
 

Filed: January 29, 2014
 

Nicholas T. James Patrick Morrisey 

Keyser, West Virginia Attorney General 

Attorney for Petitioner Julie A. Warren 

Assistant Attorney General 

Robert D. Goldberg 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for Respondent 

The Opinion of the Court was delivered PER CURIAM. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A judgment of conviction will not be reversed because of improper 

remarks by a prosecuting attorney in his opening statement to a jury which do not clearly 

prejudice the accused or result in manifest injustice.” Syllabus point 1, State v. Dunn, 162 

W. Va. 63, 246 S.E.2d 245 (1978). 

2. “If either the prosecutor or defense counsel believes the other has made 

improper remarks to the jury, a timely objection should be made coupled with a request to 

the court to instruct the jury to disregard the remarks.” Syllabus point 5, in part, State v. 

Grubbs, 178 W. Va. 811, 364 S.E.2d 824 (1987). 

3. “Failure to make timely and proper objection to remarks of counsel 

made in the presence of the jury, during the trial of a case, constitutes a waiver of the right 

to raise the question thereafter either in the trial court or in the appellate court.” Syllabus 

point 6, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). 

4. “Where improper evidence of a nonconstitutional nature is introduced 

by the State in a criminal trial, the test to determine if the error is harmless is: (1) the 

inadmissible evidence must be removed from the State’s case and a determination made as 

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to whether the remaining evidence is sufficient to convince impartial minds of the 

defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be 

insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support 

the conviction, an analysis must then be made to determine whether the error had any 

prejudicial effect on the jury.” Syllabus point 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 

55 (1979). 

5. “Before any in camera inspection of statutorily protected 

communications can be justified, a defendant must show both relevancy and a legitimate 

need for access to the communications. This preliminary showing is not met by bald and 

unilluminating allegations that the protected communications could be relevant or that the 

very circumstances of the communications indicate they are likely to be relevant or material 

to the case. Similarly, an assertion that inspection of the communications is needed only for 

a possible attack on credibility is also rejected. On the other hand, if a defendant can 

establish by credible evidence that the protected communications are likely to be useful to 

his defense, the trial judge should review the communications in camera.” Syllabus point 3, 

State v. Roy, 194 W. Va. 276, 460 S.E.2d 277 (1995). 

6. “A defendant who wishes to cross-examine an alleged victim of a sexual 

offense about or otherwise introduce evidence about other statements that the alleged victim 

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has made about being the victim of sexual misconduct must initially present evidence 

regarding the statements to the court out of the presence of the jury and with fair notice to 

the prosecution, which presentation may in the court’s discretion be limited to proffer, 

affidavit, or other method that properly protects both the rights of the defendant and the 

alleged victim and effectuates the purpose of our rape shield law, W. Va. Code, 61–8B–11 

[1986] and West Virginia Rules of Evidence 404(a)(3) [1994].” Syllabus point 3, State v. 

Quinn, 200 W. Va. 432, 490 S.E.2d 34 (1997). 

7. “If the trial court finds that there is a strong probability that the alleged 

victim of a sexual offense has made other statements which are false of being the victim of 

sexual misconduct, evidence relating to those statements may be considered by the court 

outside of the scope of our rape shield law, W. Va. Code, 61–8B–11 [1986] and West 

Virginia Rules of Evidence 404(a)(3) [1994].” Syllabus point 4, State v. Quinn, 200 W. Va. 

432, 490 S.E.2d 34 (1997). 

8. “The test used to determine whether a trial court’s exclusion of 

proffered evidence under our rape shield law violated a defendant’s due process right to a fair 

trial is (1) whether that testimony was relevant; (2) whether the probative value of the 

evidence outweighed its prejudicial effect; and (3) whether the State’s compelling interests 

in excluding the evidence outweighed the defendant’s right to present relevant evidence 

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supportive of his or her defense. Under this test, we will reverse a trial court’s ruling only 

if there has been a clear abuse of discretion.” Syllabus point 6, State v. Guthrie, 205 W. Va. 

326, 518 S.E.2d 83 (1999). 

9. “The attorney for the state may by leave of court file a dismissal of an 

indictment, information or complaint, and the prosecution shall thereupon terminate.” 

Syllabus point 1, in part, State v. McWilliams, 177 W. Va. 369, 352 S.E.2d 120 (1986). 

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Per Curiam: 

Robert Scott R., Jr. (hereinafter “Mr. R.”)1 appeals an order of the Circuit Court 

of Mineral County sentencing him to prison after he was convicted by a jury of committing 

thirty sexual offenses against four minors. The circuit court sentenced Mr. R. to a total of 

not less than 125 years nor more than 295 years in prison.2 Here, Mr. R. contends that the 

circuit court committed error by (1) denying his motion for mistrial due to opening remarks 

by the prosecutor, (2) failing to conduct a hearing before admitting Rule 404(b) evidence, (3) 

denying his motion to allow discovery of the mental health records of one of the victims, (4) 

limiting cross-examination of two witnesses, and (5) allowing the indictment to be amended. 

After a careful review of the briefs, the record submitted on appeal, and listening to the 

argument of the parties, we affirm. 

I.
 

FACTUAL AND PROCEDURAL HISTORY
 

1

Due to the sensitive facts involved in this case, we refer to the petitioner and 

his victims by their last initials. See, e.g., State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 

125 (2013) (per curiam); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 

(1990). 

2

The sentences for thirteen of the offenses were ordered to be served 

consecutively. The sentences for the remaining seventeen offenses were ordered to run 

concurrently with each other and the consecutive sentences. 

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This case involved sexual offenses against four minors: C.R., J. D., A. M.; and 

R.R.3 All of the offenses occurred at various times at Mr. R.’s home during the period from 

2008 through 2010.4 At the time of the offenses, Mr. R. was married. His wife had three 

children before the marriage.5 Mr. R. had one child, a son, during the marriage.6 

The State became aware of Mr. R.’s sexual abuse of the minors based upon an 

initial report by one of the victims, A.M. After an investigation, a grand jury returned a fiftysix count indictment against Mr. R. on September 8, 2010. A jury trial commenced on 

October 24, 2011. During the trial, each victim testified via live closed-circuit television 

from a magistrate courtroom. The State also called fourteen other witnesses. Mr. R. testified 

and denied committing any of the crimes.7 The jury returned a verdict on October 27, 2011, 

convicting Mr. R. of thirty sexual offenses.8 The relevant facts from the testimony of each 

victim is set out separately below. 

3

R.R. was Mr. R.’s stepdaughter. 

4

However, some of the sexual conduct perpetrated against R.R. occurred prior 

to 2008. 

5

His wife had two sons and a daughter–R.R. Mr. R. legally adopted his 

stepchildren. 

6

At the time of the trial, Mr. R.’s wife had divorced him. 

7

The only other witness called by Mr. R. was an employee at a school J.D. 

attended. 

8

Only thirty-five counts of the indictment were submitted to the jury. The jury 

was hung on five of the counts submitted to it. 

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C.R. testified at the trial that, during the period from March 2009 through 

March 2010, she regularly visited the home of Mr. R. During this period, C.R., who was 

then fifteen, was dating one of Mr. R.’s stepsons. C.R. testified that she frequently stayed 

at Mr. R.’s home on weekends. When C.R. stayed overnight at the home she would sleep on 

a couch with Mr. R.’s stepdaughter.9 At the trial, C.R. testified to an incident in the home 

when Mr. R. forced her onto his bed and rubbed against her buttocks with his groin.10 As a 

result of this conduct, the jury convicted Mr. R. of sexual abuse by a custodian and sexual 

abuse in the first degree. 

J.D. testified that she knew Mr. R. and his family well.11 In August or 

September of 2009, J.D. spent the night at Mr. R.’s home. J.D. was fourteen years old at the 

time. Mr. R. and his wife had gone out for the evening. It appears that when they returned 

home, Mr. R.’s wife was intoxicated. The record is not clear; but, when the couple went to 

bed, J.D. also was in their bed. J.D. testified that Mr. R. had sexual intercourse with her 

while his wife was in the bed. Mr. R.’s wife testified about the incident as follows:12 

9

Mr. R.’s stepdaughter slept on the couch because she did not have a bed.
 

10C.R. later reported this incident to Mr. R.’s wife.
 

11J.D. had a hearing impairment.
 

12Mr. R.’s wife also has a hearing impairment. During the trial, the court
 

provided her with a hearing impaired interpreter. 

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Q. No. I’ve moved on to something else. Where you 

indicated that you had actually observed someone being touched 

in the home? 

A. Oh, okay. That night Bobby had taken me out 

drinking and we had the two twin girls at my house. So my 

daughter had friends to stay over with her and I was drunk. He 

wasn’t drunk. [J.D.] was in our room, our room. And she had 

sex with him and I saw it and told him to stop, and he got mad 

at me. 

Q. Okay. Could you describe when you first realized that 

that was going on? 

A. It hurt my feelings because she was a young girl and 

I’m his wife. I couldn’t believe it. Why was he having another 

girl? 

Q. What, what were you doing at the time you first 

realized it was happening? 

A. I was in the bed as well. I was getting up to go to the 

bathroom and then I saw him and her were in the bed. 

Q. Did you know that she was in the bed before that? 

A. No. 

Q. Okay. Had you been sleeping? 

A. I was asleep in our bed, yes. 

Q. Okay. If you could, be very specific about what you 

saw? We just need to be able to convey that for the jury as to 

what you actually observed? 

A. I saw her, [J.D.], she was on top of Bobby and I told 

him to stop. I told them to stop. And he got mad at me. He got 

mad at me and told me to shut the [f**k] up. And he pushed my 

head against the wall. 

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As a result of the sexual conduct with J.D., the jury convicted Mr. R. of sexual abuse by a 

custodian, sexual assault in the second degree, and sexual assault in the third degree. 

A.M. testified during the trial that she was a good friend of Mr. R.’s 

stepdaughter, R.R. A.M. frequently stayed overnight at their home. When A.M. was about 

thirteen years old, Mr. R. forced her to engage in sexual conduct on three separate occasions 

during the period from May 2009 to September 2009. The first incident involved Mr. R.’s 

stepdaughter R.R. A.M. testified that Mr. R. forced her and R.R. to use their hands to 

masturbate him until he ejaculated.13 The second incident involved Mr. R.’s then fifteenyear-old stepson, J.R. A.M. testified that Mr. R. forced her and J.R. to engage in sexual 

intercourse.14 The third incident involved two sexual encounters with Mr. R. A.M. testified 

that during her last sleep-over, Mr. R. forced her to masturbate him, but he did not ejaculate. 

Shortly afterwards, Mr. R. followed her into a bathroom and engaged in sexual intercourse 

with her.15 As a result of the sexual conduct with A.M., the jury convicted Mr. R. of four 

counts of sexual abuse by a custodian, two counts of sexual abuse in the first degree, and two 

counts of sexual assault in the second degree. 

13R.R. corroborated this incident during her testimony. 

14J.R. corroborated this testimony. 

15Several months after this last incident, A.M. informed her mother about the 

sexual abuse. Her mother reported the matter to the police. This report apparently launched 

the investigation that culminated with more victims coming forward and the instant 

prosecution. 

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Mr. R.’s stepdaughter, R.R., testified to numerous sexual acts perpetrated 

against her by Mr. R. They began when she was about five years old.16 R.R. testified that 

from about the age of five to the age of twelve, Mr. R. regularly forced her to masturbate him 

at night.17 During this same period, he would also rub and lick R.R.’s genital area. R.R. 

testified that, in 2009, on the evening of her twelfth birthday, Mr. R. attempted to have sexual 

intercourse with her for the first time, but her vaginal area was too small. For several weeks 

afterwards, Mr. R. would regularly insert one of his fingers into R.R.’s vagina. After several 

weeks of doing this, Mr. R. again forced himself on R.R. and was able to penetrate her and 

have sexual intercourse. R.R. testified that Mr. R. would have sexual intercourse with her 

once or twice every two months. Also, he would insert his finger inside of her on a nightly 

basis when he was at home.18 As a result of the sexual conduct with R.R., the jury convicted 

Mr. R. of four counts of incest, six counts of sexual abuse by a parent, four counts of sexual 

abuse in the first degree, and three counts of sexual assault in the second degree. 

16Mr. R. adopted R.R. around this time and later adopted her two brothers. 

17As discussed later in this opinion, much of the abuse during this period 

occurred when Mr. R. and his family lived in another county. 

18The record is not clear as to the type of work Mr. R. did, but it appears he 

sometimes worked away from home. 

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Following these convictions, the circuit court sentenced Mr. R. to a term of not 

less than 125 years nor more than 295 years in prison.19 

II.
 

DISCUSSION20
 

On appeal, Mr. R. sets forth several assignments of error. Each issue will be 

discussed individually. 

A. Motion for Mistrial Due to Opening Remarks by the Prosecutor 

The first issue raised by Mr. R. is that the trial court should have granted his 

motion for mistrial as a result of certain remarks made by the prosecutor during the State’s 

opening statement.21 Our review of a circuit court’s decision to deny a motion for a mistrial 

is reviewed under an abuse of discretion standard. See State v. Meadows, 231 W. Va. 10, 

___, 743 S.E.2d 318, 328 (2013). As we explained in State v. Williams, 172 W. Va. 295, 

304, 305 S.E.2d 251, 260 (1983), “[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.” See W. Va. Code § 62–3–7 (1923) (Repl. Vol. 2010) (“[I]n any criminal case the 

19See supra note 1. 

20We dispense with our normal custom of setting forth a general section on the 

standard of review. Each of the issues presented in this case has its own unique review 

standard, which will be explained in the pertinent portions of the opinion. 

21Mr. R. made two motions for mistrial on this issue. 

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court may discharge the jury, when it appears . . . that there is manifest necessity for such 

discharge.”). We held in Syllabus point 3 of State v. Little, 120 W. Va. 213, 197 S.E. 626 

(1938), that 

[t]he power of a court in a criminal case to discharge a 

jury without rendering a verdict is discretionary; but the power 

“is a delicate and highly important trust” and must be exercised 

soundly, else the discharge will become in effect an acquittal of 

the accused under the Constitution, Article 3, Section 5, which 

inhibits second jeopardy. 

See also Williams, 172 W. Va. at 304, 305 S.E.2d at 260 (“This 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.”). This Court also has made unequivocally clear that “[a] 

judgment of conviction will not be reversed because of improper remarks by a prosecuting 

attorney in his opening statement to a jury which do not clearly prejudice the accused or 

result in manifest injustice.” Syl. pt.1, State v. Dunn, 162 W. Va. 63, 246 S.E.2d 245 (1978). 

See State v. Mann, 205 W.Va. 303, 313, 518 S.E.2d 60, 70 (1999) (“We find no prejudice or 

manifest injustice arising from the State’s remarks.”). 

Mr. R. complains about the following remarks made by the prosecutor during 

the State’s opening statement: 

As things move on, you may start to hear testimony, if 

they decide to present it. Mr. White already indicated to you 

that his client was going to testify. There may be other 

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witnesses that will come in and tell you they think the Defendant 

is a great guy. They know him and they’re shocked he would 

ever do something like this. They just wouldn’t be able to 

believe it. 

During that, and when you hear those things, remember 

back to what you’re going to hear over the first part of the 

presentation of the evidence from the State. Remember the 

voices of the alleged victims. Remember what they were telling 

you. Remember that, if you hear testimony about the character 

of Mr. R., that that’s a side that he gave to the public; that’s a 

side that he would give to his friends and his family. Certainly 

he’s not going to present a side in which he shows himself to be 

someone who might molest children at his home. So remember 

the voices of those victims during a time period that you’re 

hearing any positive things; that this would not be the side that 

Mr. R. is going to present to those other people that might be 

here. 

Mr. R. contends that the comments prejudiced him because (1) he did not actually call any 

character witnesses during the trial; (2) the comments made it appear that he had an 

affirmative duty to put forth evidence and created a presumption against himself; (3) the 

comments suggested he had a bad character; and (4) the trial court failed to instruct the jury 

to disregard the comments. 

The State argues that this Court should reject this assignment of error for 

several reasons. First, the State contends that the opening statement issue was not properly 

preserved because Mr. R. did not make a contemporaneous objection at trial. Second, Mr. 

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R. failed to request a curative instruction. Third, the comments did not prejudice Mr. R. We 

agree with the State.22 

The law in West Virginia has long been that “[i]f either the prosecutor or 

defense counsel believes the other has made improper remarks to the jury, a timely objection 

should be made coupled with a request to the court to instruct the jury to disregard the 

remarks .” Syl. pt. 5, in part, State v. Grubbs, 178 W. Va. 811, 364 S.E.2d 824 (1987). 

Accord State v. Copen, 211 W. Va. 501, 506, 566 S.E.2d 638, 643 (2002). This Court also 

has long held that “[f]ailure to make timely and proper objection to remarks of counsel made 

in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise 

the question thereafter either in the trial court or in the appellate court.” Syl. pt. 6, Yuncke 

v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). Accord State v. Davis, 205 W. Va. 569, 

586, 519 S.E.2d 852, 869 (1999). 

The record clearly shows that Mr. R. did not make a contemporaneous 

objection to the comments by the prosecutor. Mr. R. waited until after his opening statement 

22Even though we find no merit to this first assignment of error, we will note 

that, as a practical matter, prosecutors should avoid commenting upon expected evidence by 

a defendant during their opening statements. See W. Va. Tr. Ct . R. 42.04(a) (“At the 

commencement of trial in a criminal action, the State and the defendant may make 

non-argumentative opening statements as to their theories of the case and the manner in 

which they expect to offer their evidence.”). Such comments do nothing more than raise 

potential grounds for error. A criminal defendant is not obligated to put on any evidence. 

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was given to raise an objection. Further, at no time did Mr. R. make a request for an 

instruction to the jury regarding the comments. Because of our well-settled legal principles 

on this matter, we deem this issue waived for appellate review purposes. See State v. Davis, 

205 W. Va. 569, 586, 519 S.E.2d 852, 869 (1999) (finding defendant could not raise issue 

on appeal that the prosecutor made improper remarks during State’s opening statement); 

State v. Young, 185 W. Va. 327, 349 n.25, 406 S.E.2d 758, 780 n.25 (1991) (finding 

defendant waived issue of improper remarks by the prosecutor during closing argument 

because of failure to properly object). 

Assuming, for the sake of argument, that Mr. R. had properly reserved this 

issue for appeal, we find that no prejudice resulted from the comments. Although we believe 

that the prosecutor should not have made comments about Mr. R.’s anticipated evidence, the 

comments have not been shown to prejudice Mr. R. First, during the trial court’s opening 

remarks to the jury, the court expressly stated the attorneys would be making opening 

statements and that “what the lawyers say is not evidence.” Second, the prosecutor clearly 

informed the jury that Mr. R. might not put on evidence of his good character. Third, the 

comments did not attack Mr. R.’s character. The comments merely asked the jury to keep 

in mind the type of person the victims would describe to them. Fourth, the prosecutor had 

a good faith belief that Mr. R. would call character witnesses because Mr. R. informed the 

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court that he had subpoenaed over thirty witnesses.23 Finally, “[i]t cannot be said that [Mr. 

R.] would have been acquitted by any impartial jury if the remarks complained of had not 

been made.” State v. Coulter, 169 W. Va. 526, 530, 288 S.E.2d 819, 821 (1982).24 See State 

v. Hottinger, 194 W. Va. 716, 461 S.E.2d 462 (1995) (finding no prejudice from prosecutor’s 

comments about evidence that was not subsequently introduced at trial). 

B. Failing to Conduct a Hearing Before Admitting Rule 404(b) Evidence 

The next issue raised by Mr. R. is that the trial court failed to conduct a proper 

hearing before admitting “other bad acts” evidence under Rule 404(b) of the West Virginia 

Rules of Evidence. Specifically, Mr. R. contends that the trial court did not conduct a proper 

Rule 404(b) hearing before admitting evidence that he sent pornographic text messages25 to 

a seventeen-year-old girl, C.G. who is not one of the victims named herein. Mr. R. also 

contends that this evidence was introduced to show a lustful disposition. 

“[W]e review the trial court’s decision to admit evidence pursuant to Rule 

404(b) under an abuse of discretion standard.” State v. McGinnis, 193 W. Va.147, 159, 455 

23Mr. R. ultimately did not call any character witnesses. 

24Mr. R. mentioned in passing that the prejudice from the comments was 

compounded by evidence that he engaged in physical and verbal abuse, including reference 

to spanking with a paddle. Insofar as we have determined that the prosecutor’s comments 

were not prejudicial, no “compounding” of prejudice occurred from such evidence. 

25The text messages involved sexually explicit images. 

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S.E.2d 516, 528 (1994). The general framework for admitting evidence under Rule 404(b) 

has been set out as follows: 

Where 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 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. 

Syl. pt. 2, McGinnis, 193 W. Va. 147, 455 S.E.2d 516. Additionally this Court has held the 

following regarding the admission of evidence of lustful disposition pursuant to Rule 404(b): 

Collateral acts or crimes may be introduced in cases 

involving child sexual assault or sexual abuse victims to show 

the perpetrator had a lustful disposition towards the victim, a 

lustful disposition towards children generally, or a lustful 

disposition to specific other children provided such evidence 

relates to incidents reasonably close in time to the incident(s) 

giving rise to the indictment. To the extent that this conflicts 

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with our decision in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 

208 (1986), it is overruled. 

Syl. pt. 2, Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). 

Assuming that the pornographic text messages were Rule 404(b) evidence,26 

we find that the trial court did not fully comply with the requirements of McGinnis and 

Edward Charles L. As a result of such failure, Mr. R. contends that our recent decision in 

State v. Jonathan B., 230 W. Va. 229, 737 S.E.2d 257 (2012), requires reversal of his 

convictions. We disagree. 

To begin, in Jonathan B., the defendant was convicted of sexual assault, incest 

and other crimes. One of the issues raised on appeal was that the trial court committed error 

in admitting evidence of pornographic file names obtained from his computer. This Court 

agreed with the defendant after finding the trial court failed to properly comply with 

McGinnis and Edward Charles L. The opinion addressed the matter as follows: 

The record provided to the Court and the statements of 

counsel during oral argument indicate that a proper McGinnis 

hearing, in which the circuit court conducts an evaluation of the 

evidence pursuant to syllabus point 2 of McGinnis, never took 

place with regard to the pornographic file names. The circuit 

court did perform an examination of the evidence during the 

26The State argues that the evidence was intrinsic and, therefore, that its 

admission did not have to comply with Rule 404(b). Because of our disposition of the issue, 

we need not decide whether the evidence was in fact intrinsic to the offenses in this case. 

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November 10, 2010, pretrial hearing, but this review of the 

evidence did not satisfy the requirements of McGinnis. The 

hearing was not in camera, the discussion of the pornographic 

file names in this hearing was pursuant to Jonathan B.’s motion 

to exclude the evidence, the court did not describe whether its 

findings were by a preponderance of the evidence, and the court 

did not give a limiting instruction regarding the evidence when 

it was first presented to the jury during trial. Perhaps the most 

problematic omission of the circuit court, however, was its 

failure to consider or discuss the requirement of Edward 

Charles L. that admissible Rule 404(b) evidence be close in time 

to the incident giving rise to the indictment. 

Because we find that the circuit court’s failure to hold a 

McGinnis hearing has rendered it unable to fully consider all of 

the evidentiary requirements of McGinnis and Edward Charles 

L. with regard to the pornographic file names, we conclude that 

the circuit court abused its discretion by allowing said evidence 

to be admitted at trial. We also find that because of the highly 

prejudicial nature of this particular evidence, especially in this 

case where the State’s case rests solely on the claims of the 

alleged victim, the error is reversible. 

Jonathan B., 230 W. Va. at 238, 737 S.E.2d at 266. 

In the instant proceeding, the record reveals that the issue of admitting 

evidence of pornographic text messages arose in the context of the trial court addressing 

numerous pretrial issues. Defense counsel characterized C.G.’s expected testimony about 

the pornographic text messages as Rule 404(b) evidence. Initially, defense counsel objected 

to C.G. any mention of the text messages because he had not seen them.27 Defense counsel 

27It appears that the text messages were not retained by anyone who received 

(continued...) 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

appears to have dropped this objection after he was reminded that a police report contained 

a description of the contents of the text messages. Defense counsel then argued that he did 

not want C.G. to testify that Mr. R. also sent the text messages to her sister, S.G. and his 

stepson, J.R.28 The trial court thereafter ruled that it would allow C.G. to testify that she 

received pornographic text messages from Mr. R. “to show intent” and to show “lustful 

disposition towards children and to corroborate their statements.” 

Other than provide a basis for admitting the evidence through C.G., the trial 

court made no express McGinnis ruling that a preponderance of the evidence showed that the 

conduct occurred and that Mr. R. committed the acts. There also was no finding that the 

probative value of the evidence outweighed its prejudicial effects. The trial court also failed 

to discuss the requirement of Edward Charles L. that the evidence be close in time to the 

incident giving rise to the indictment.29 

27(...continued) 

the text messages. 

28Defense counsel stated expressly: 

I want . . . .S.G. to be able to say that and I want J.R. to 

be able to say that. I don’t want her to say and he also sent it to 

J.R. and he also sent it to S.G. 

29The trial court did provide a limiting instruction. 

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Even though the trial court’s McGinnis hearing was inadequate, we find the 

error to be harmless. This Court has indicated that the test for harmless error is as follows: 

Where improper evidence of a nonconstitutional nature 

is introduced by the State in a criminal trial, the test to determine 

if the error is harmless is: (1) the inadmissible evidence must be 

removed from the State’s case and a determination made as to 

whether the remaining evidence is sufficient to convince 

impartial minds of the defendant’s guilt beyond a reasonable 

doubt; (2) if the remaining evidence is found to be insufficient, 

the error is not harmless; (3) if the remaining evidence is 

sufficient to support the conviction, an analysis must then be 

made to determine whether the error had any prejudicial effect 

on the jury. 

Syl. pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979). We find harmless error for 

several reasons. First, in this appeal and at the trial level, Mr. R. objected only to C.G. 

testifying about receiving pornographic text messages from him. This same evidence, 

however, was introduced without objection through two other witnesses, J.R. and S.G.30 

Insofar as other witnesses testified to receiving pornographic text messages from Mr. R., the 

trial court’s failure to hold a proper McGinnis hearing before allowing C.G. to testify to the 

issue is of no consequence. See State v. Morris, 227 W. Va. 76, 81 n.5, 705 S.E.2d 583, 588 

n.5 (2010) (“[T]he admission of such evidence would have been harmless error because, as 

explained more fully below, the same fact was testified to and proven by other witnesses, 

including phlebotomist Bennett and Appellant’s wife.”). 

30Additionally, Child Protective Services worker Roann Welch testified for the 

State that S.G. told her that Mr. R. texted her pornography. 

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We also find that allowing C.G. to testifyabout receiving the pornographic text 

messages was harmless in light of other testimony she was allowed to present. During her 

testimony C.G. also testified that Mr. R. fondled her breasts and rubbed her genital area one 

evening when she stayed at his home. C.G. testified that she objected to this conduct. We 

find it very doubtful that the jury would focus upon testimony by C.G. concerning text 

messages, in light of her more relevant substantive testimony concerning an alleged sexual 

assault. 

Finally, we note that one of our concerns with the flawed McGinnis hearing in 

Jonathan B. was the fact that the State’s case rested solely on the claims of the alleged 

victim. In this case, Mr. R.’s wife testified to seeing him have sex with one of the victims. 

Mrs. R. also testified generally that Mr. R. would pull the “girls’” shirts off and pull down 

their pants. Moreover, Mr. R.’s stepson testified that Mr. R. forced him to have sex with one 

of the victims. Further, this case involved four victims with similar evidence of grooming 

by Mr. R. for his sexual advances. In other words, the evidence in this case was sufficient 

to convict Mr. R. without the testimony from C.G. that Mr. R. sent her pornographic text 

messages. In the final analysis, any error in admitting testimony by C.G. that Mr. R. sent her 

pornographic text messages had no prejudicial impact and was harmless beyond a reasonable 

doubt. 

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C. Discovery of Mental Health Records 

Mr. R. next assigns error to the trial court’s denial of his motion to discover 

J.D.’s mental health records that were kept by an Ohio institution called Fox Run Center for 

Children and Adolescents.31 The State argued below and in this appeal that the records are 

confidential,32 and that Mr. R. failed to satisfy the requirements for obtaining the records. 

We have held that “[s]ubject to certain exceptions, pretrial discovery in a criminal case is 

within the sound discretion of the trial court.” Syl. pt. 8, State v. Audia, 171 W. Va. 568, 301 

S.E.2d 199 (1983). Therefore, we must determine whether the trial court abused its 

discretion by refusing to allow Mr. R. to obtain J.D.’s mental health records from Fox Run. 

See State v. Lassiter, 177 W. Va. 499, 506, 354 S.E.2d 595, 602 (1987) (“In the absence of 

an abuse of discretion, the denial of a pre-trial discovery request does not constitute 

reversible error.”). 

We begin by noting that “Rule 16(a)(1)(D) of the West Virginia Rules of 

Criminal Procedure allows discovery of all results or reports of physical or mental 

examinations which are material to the defense or are to be used as evidence in the 

prosecution’s case-in-chief.” Syl. pt. 1, State v. Roy, 194 W. Va. 276, 460 S.E.2d 277 

31J.D. was at the facility for about a year prior to the trial. 

32The State’s brief cites to W. Va. Code § 49-7-1 (confidentiality of children’s 

records maintained by agencies) and W. Va. Code § 27-3-1 (confidentiality of mental health 

records). 

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(1995). Under the decision in Roy, a trial court is required to hold an in camera inspection 

of confidential records before disclosing them. However, before an in camera hearing is 

held, Roy requires the defendant to make a prima facie showing of relevancy and a legitimate 

need for the records. Roy set out the prima facie standard as follows: 

Before any in camera inspection of statutorily protected 

communications can be justified, a defendant must show both 

relevancy and a legitimate need for access to the 

communications. This preliminary showing is not met by bald 

and unilluminating allegations that the protected 

communications could be relevant or that the verycircumstances 

of the communications indicate they are likely to be relevant or 

material to the case. Similarly, an assertion that inspection of 

the communications is needed only for a possible attack on 

credibility is also rejected. On the other hand, if a defendant can 

establish by credible evidence that the protected 

communications are likely to be useful to his defense, the trial 

judge should review the communications in camera. 

Syl. pt. 3, Roy, id. 

Mr. R. contends that when J.D. attended the Romney School for the Deaf and 

Blind, she made four false allegations: she was pregnant, she had sex during the lunch hour, 

she missed her period, and that a male student pulled her into the bathroom.33 Mr. R. argued 

below and in this appeal that because J.D. made false allegations “at the Romney School, 

there is certainly a good faith belief that J.D. made false reports at Fox Run.” The circuit 

33The trial court permitted Mr. R. to cross-examine J.D. regarding the alleged 

false allegations at the Romney School. 

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court rejected this argument as a “bald and unilluminating” basis for reviewing confidential 

mental health records. We agree. 

The threshold showing under Roy for an in camera inspection of confidential 

records is not satisfied by Mr. R. merely stating that he wants to see confidential records 

because the victim may have lied about something–anything-while at Fox Run. This basis 

for discovering the records falls squarely under Roy’s prohibition of holding an in camera 

inspection merely to see if evidence exists for the defendant to attack the witness’ credibility. 

The decision in Roy indicated that, during an in camera inspection, “the trial judge should 

look for evidence such as a witness’s motive to lie against the defendant and for such 

information that might indicate misidentification or the inability to identify or describe the 

assailant.” Roy, 194 W. Va. at 285, 460 S.E.2d at 286. In the instant case, Mr. R.’s sexual 

assault of J.D. was witnessed by his wife; consequently, J.D. could have told a thousand lies 

while at Fox Run, and it would not have been relevant to the issue of his sexual assault of 

her. 

D. Limiting Cross-Examination of Two Witnesses 

The next assignment of error by Mr. R. involves two separate issues. First, Mr. 

R. contends that the trial court committed error in limiting his cross-examination of A.M. 

Second, Mr. R. argues that it was error for the trial court to limit his cross-examination of a 

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forensic nurse, Debbie Wolford. Before addressing each issue separately, we will set out a 

few legal principles to guide our review. 

We have held that “[t]he extent of the cross-examination of a witness is a 

matter within the sound discretion of the trial court; and in the exercise of such discretion, 

in excluding or permitting questions on cross-examination, its action is not reviewable except 

in the case of manifest abuse or injustice.” Syl. pt. 4, State v. Carduff, 142 W. Va. 18, 93 

S.E.2d 502 (1956). We also are guided in our analysis by the principle that “[a] defendant 

on trial has the right to be accorded a full and fair opportunity to fully examine and 

cross-examine the witnesses.” Syl. pt. 1, State v. Crockett, 164 W. Va. 435, 265 S.E.2d 268 

(1979). Of course, this right is not unbridled and is subject to general rules, as we have 

previously defined as follows: 

Several basic rules exist as to cross-examination of a 

witness. The first is that the scope of cross-examination is 

co-extensive with, and limited by, the material evidence given 

on direct examination. The second is that a witness may also be 

cross-examined about matters affecting his credibility. The term 

“credibility” includes the interest and bias of the witness, 

inconsistent statements made by the witness and to a certain 

extent the witness’ character. The third rule is that the trial 

judge has discretion as to the extent of cross-examination. 

Syl. pt. 4, State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982). 

22
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1. Cross-examination of A.M. Prior to trial, Mr. R. learned that A.M. 

allegedly once told her aunt, that a boy inappropriately touched her breasts at a dance. 

During a pretrial hearing, the aunt was questioned about the incident and stated that A.M. 

reported that a boy inappropriately touched her breasts.34 The aunt also testified that she did 

not believe A.M. and that she reported the matter to the boy’s parents. It appears that school 

officials learned of the incident and confronted A.M. and the boy about the matter. A.M. and 

the boy are reported to have stated that the incident did not occur. 

At the conclusion of the aunt’s pretrial testimony, Mr. R. moved the trial court 

to permit him to cross-examine A.M. about the incident during the trial. Mr. R. argued that 

this was a false allegation A.M. made and that he should be allowed to use it to attack her 

credibility. The trial court denied the motion after applying the factors set out in State v. 

Quinn, 200 W. Va. 432, 490 S.E.2d 34 (1997). 

In Quinn, this Court noted that evidence that a victim of a sexual offense has 

made statements about being the victim of sexual misconduct by someone other than the 

34The aunt also testified that A.M. informed her about a second incident when 

another boy inappropriately touched her while she was babysitting him. Mr. R. did not raise 

any issue to the circuit court nor in this appeal about allegations concerning the second 

incident. 

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defendant is generally prohibited,35 “unless the defendant establishes . . . that there is a strong 

probability that the alleged victim’s other statements are false.” Quinn, 200 W. Va. at 438, 

490 S.E.2d at 40. In Syllabus points 3 and 4 of Quinn, we set forth the procedure a defendant 

must follow in order to show that a sexual assault victim’s other statements about being the 

victim of sexual misconduct are false: 

3. A defendant who wishes to cross-examine an alleged 

victim of a sexual offense about or otherwise introduce evidence 

about other statements that the alleged victim has made about 

being the victim of sexual misconduct must initially present 

evidence regarding the statements to the court out of the 

presence of the jury and with fair notice to the prosecution, 

which presentation may in the court’s discretion be limited to 

proffer, affidavit, or other method that properly protects both the 

rights of the defendant and the alleged victim and effectuates the 

purpose of our rape shield law, W. Va. Code, 61-8B-11 [1986] 

and West Virginia Rules of Evidence 404(a)(3) [1994]. 

4. If the trial court finds that there is a strong probability 

that the alleged victim of a sexual offense has made other 

statements which are false of being the victim of sexual 

misconduct, evidence relating to those statements may be 

considered by the court outside of the scope of our rape shield 

law, W. Va. Code, 61-8B-11 [1986] and West Virginia Rules of 

Evidence 404(a)(3) [1994]. 

Quinn, 200 W. Va. 432, 490 S.E.2d 34. 

35This prohibition is found under our rape shield statute, W. Va. Code § 61-8B11 (1986) (Repl. Vol. 2010), and Rule 404(a)(3) of the West Virginia Rules of Evidence. 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. R. used the testimony of the aunt to try and establish that A.M. made a 

false allegation that she was a victim of sexual misconduct by another person. The trial court 

found that this evidence did not meet the “strong probability” requirement of Quinn. This 

decision was reached in part because of the representations from the State that A.M. 

informed school officials that she never made the allegation to the aunt and that the conduct 

never occurred. The trial court also was concerned that there was no evidence that A.M. 

reported this alleged inappropriate conduct to a government or law enforcement official. 

After reviewing the testimony of the aunt, we do not believe the trial court abused its 

discretion in prohibiting Mr. R. from cross-examining A.M. about this matter. Although we 

are not able to assess the aunt’s demeanor, as did the trial court, her testimony revealed a 

person who is estranged from A.M. and her family. In this Court’s view, it is the veracity of 

the aunt that is doubtful regarding this matter, not A.M.36 

2. Cross-examination of Debbie Wolford. Mr. R. also has argued that the 

trial court committed error in not allowing him to cross-examine Debbie Wolford about prior 

sexual abuse of R.R. when she was five years old. Ms. Wolford was a forensic nurse who 

examined R.R. and at least two of the other victims. Ms. Wolford testified that R.R.’s 

vaginal “injuries were pretty remarkable for someone who was twelve.” Ms. Wolford also 

36Even if we had determined that the trial court erred in not allowing Mr. R. to 

cross-examine A.M. on this issue, such error would have been harmless beyond a reasonable 

doubt. 

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testified that she could not tell when the vaginal injuries occurred. Mr. R. contends that the 

injuries Ms. Wolford described could have been caused by someone else. Therefore, he 

argues that he should have been allowed to question Ms. Wolford about that possibility. 

It appears that the trial court denied Mr. R.’s argument for cross-examining Ms. 

Wolford about prior sexual abuse of R.R. under our rape shield law. This Court has held that 

[t]he test used to determine whether a trial court’s 

exclusion of proffered evidence under our rape shield law 

violated a defendant’s due process right to a fair trial is (1) 

whether that testimony was relevant; (2) whether the probative 

value of the evidence outweighed its prejudicial effect; and (3) 

whether the State’s compelling interests in excluding the 

evidence outweighed the defendant’s right to present relevant 

evidence supportive of his or her defense. Under this test, we 

will reverse a trial court’s ruling only if there has been a clear 

abuse of discretion. 

Syl. pt. 6, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). 

We find that the trial court did not abuse its discretion in prohibiting Mr. R. 

from cross-examining Ms. Wolford about R.R. being sexually abused by someone else when 

she was five years old because such evidence was not relevant.37 Mr. R. contends 

37Although we are addressing this issue on the merits as presented, we wish to 

point out that Mr. R. has inadequately briefed this issue. It was previously pointed out that 

R.R. testified during the trial that Mr. R. began sexually abusing her when she was five years 

old. This abuse did not result in sexual penetration until R.R. turned twelve years old. As 

discussed later, several of the charges against Mr. R. that involved R.R. were dismissed 

(continued...) 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

specifically that the damage to R.R.’s hymen that Ms. Wolford described could have 

occurred when she was sexually abused at five years old. The State points out that the 

medical records relied upon by Mr. R. to suggest prior sexual abuse at age five stated clearly 

that there was no trauma. The description of R.R.’s hymen by Ms. Wolford was consistent 

with extreme trauma. Therefore, no relevant connection exists between showing that R.R.’s 

outer vaginal area may have been sexually fondled, at best, by someone else when she was 

five years old, and the evidence that Mr. R. penetrated her vagina repeatedly after she turned 

twelve years old. 

E. Amending the Indictment 

The final issue raised by Mr. R. is that the trial court committed error when it 

allowed the State to nolle prosequi or drop several of the counts in the indictment.38 We have 

long held that a prosecutor cannot dismiss criminal charges without the prior approval of the 

37(...continued) 

because the conduct occurred in another county. The record suggests that the charges 

actually prosecuted covered only the last three years of what was about seven years of sexual 

abuse by Mr. R. Mr. R. has only pointed to vague references in the record to support the 

allegation that he is making in this appeal, i.e., that R.R. was sexually abused by someone 

else when she was five years old. The references pointed to by Mr. R. do not make clear that 

R.R. was actually abused by another person when she was five years old. We have merely 

assumed, for the sake of argument, that part of the record not submitted on appeal would 

support the assertion being made that R.R. was the victim of sexual abuse by someone else 

when she was five years old. 

38Mr. R. does not state how many counts were dismissed. A review of the 

record shows that the State moved the court to dismiss fifteen counts of the indictment. 

However, a total of twenty-one counts did not go to the jury. 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

court. See Syl. pt.1, Denham v. Robinson, 72 W. Va. 243, 77 S.E. 970 (1913) (“The entry 

of a nolle prosequi by the prosecuting attorney, though the attorney general joins therein, 

without the consent of the court, is ineffective to discontinue a prosecution upon an 

indictment by a grand jury.”).39 This principle of law is now embodied in Rule 48(a) of the 

West Virginia Rules of Criminal Procedure. Under that rule, “[t]he attorney for the state may 

by leave of court file a dismissal of an indictment, information or complaint, and the 

prosecution shall thereupon terminate.” Syl. pt. 1, in part, State v. McWilliams, 177 W. Va. 

369, 352 S.E.2d 120 (1986). Our review of a trial court’s decision to grant the State’s motion 

to drop some or all criminal charges is for an abuse of discretion. Myers v. Frazier, 173 

W. Va. 658, 676, 319 S.E.2d 782, 801 (1984). 

We have recognized that the prosecutor must guide the trial court in its decision 

whether to consent to charges being dropped by providing the court with reasons for the 

prosecutor’s recommendation that charges be dropped. In State ex rel. Skinner v. Dostert, 

166 W. Va. 743, 278 S.E.2d 624 (1981), we recognized that 

[T]he prosecutor has a duty to support his action with 

reviewable reasons and since the court entertaining the motion 

to dismiss is entitled to have all of the relevant facts of the case 

before it rules on the motion, the prosecutor must have a 

39See also W. Va. Code § 62-2-25 (1923) (Repl. Vol. 2010) (“If any 

prosecuting attorney shall compromise or suppress any indictment or presentment without 

the consent of the court entered of record, he shall be deemed guilty of malfeasance in office, 

and may be removed therefrom in the mode prescribed by law.”). 

28
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

knowledge of all the circumstances surrounding the case before 

he can legitimately move for a nolle prosequi. 

Skinner, 166 W. Va. at 753, 278 S.E.2d at 632. See Myers, 173 W. Va. at 668, 319 S.E.2d 

at 793 (“[s]pecific reasons must be given by the prosecutor for the dismissal so that the trial 

court judge can competentlydecide whether to consent to the dismissal.” (citations omitted)). 

The decision in Myers also held “that as a general rule, a trial court should not grant a motion 

to dismiss criminal charges unless the dismissal is consonant with the public interest in the 

fair administration of justice.” Myers, 173 W. Va. at 669, 319 S.E.2d at 793. 

A few days before the start of the trial in this case, the State moved to dismiss 

several of counts of the indictment involving R.R. because it had learned that venue was not 

proper for those charges. The State informed the court that while preparing some of the 

witnesses for trial, it learned that some of the offenses against R.R. occurred at a time when 

Mr. R. and his family lived in another county. Mr. R. opposed the dismissal on the grounds 

that he would be prejudiced because he would have to renumber his trial notebook. Mr. R. 

also contends that he lost evidence as a result of dropping some of the charges because he 

was unable to say that he was not living in the county when the dismissed offenses occurred. 

We have recognized “that venue lies only in the county where the crime was 

committed and at no other place, unless the defendant waives his right or files a motion for 

a change of venue.” Willis v. O’Brien, 151 W. Va. 628, 631, 153 S.E.2d 178, 180 (1967). 

29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

See W. Va. Const. art. III, § 14. In this proceeding, the trial court asked Mr. R. if he would 

waive venue on the improper counts, and he unequivocally indicated that he would not waive 

venue. The trial court thereafter granted the State’s motion to drop the counts. Our law is 

clear. Absent a waiver by Mr. R., the State simply could not have prosecuted him for 

conduct committed in another county.40 Therefore, the trial court did not abuse its discretion 

in granting the State’s motion. 

III.
 

CONCLUSION
 

The circuit court’s order of May 24, 2012, sentencing Mr. R. to imprisonment 

is affirmed. 

Affirmed. 

40It will be noted that Mr. R. mentioned in one sentence of his brief that “the 

Court permitted the State to amend the alleged date in count 19 from August 2009, to 

February, 2010.” The State did not respond to this passing comment in Mr. R.’s brief. To 

the extent Mr. R. intended this fleeting comment to be an assignment of error, it is inadequate 

for review. See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) 

(“Although we liberally construe briefs in determining issues presented for review, issues 

which are not raised, and those mentioned only in passing but [which] are not supported with 

pertinent authority, are not considered on appeal.”). 

30