IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2013 Term 

No. 12-0189 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

V. 

CHARLES EDWARD BRUFFEY,
 

Defendant Below, Petitioner
 

FILED
 

June 18, 2013
 

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 Lynn A. Nelson, Judge
 

Criminal Action No. 11-F-29
 

AFFIRMED
 

Submitted: April 24, 2013 

Filed: June 18, 2013 

Nicholas T. James Patrick Morrisey 

James Law Firm PLLC Attorney General 

Keyser, West Virginia Thomas W. Rodd 

Attorney for the Petitioner Assistant Attorney General 

Andrew D. Mendelson 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for the Respondent 
 

 

 

The Opinion of the Court was delivered PER CURIAM. 

CHIEF JUSTICE BENJAMIN and JUSTICE KETCHUM dissent and reserve the right 

to file dissenting opinions. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “The action of a trial court in admitting or excluding evidence in the 

exercise of its discretion will not be disturbed by the appellate court unless it appears that 

such action amounts to an abuse of discretion.” Syllabus point 10, State v. Huffman, 141 

W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 

192 W. Va. 435, 452 S.E.2d 893 (1994). 

2. “To trigger application of the ‘plain error’ doctrine, there must be (1) 

an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the 

fairness, integrity, or public reputation of the judicial proceedings.” Syllabus point 7, State 

v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). 

3. “Evidence of other crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show that he acted in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident. W. Va. R. Evid. 

404(b).” Syllabus point 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 

(1990). 

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4. “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.” Syllabus point 2, State v. McGinnis, 193 W. Va. 147, 455 

S.E.2 516 (1994). 

5. “In the exercise of discretion to admit or exclude evidence of collateral 

crimes and charges, the overriding considerations for the trial court are to scrupulously 

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protect the accused in his right to a fair trial while adequately preserving the right of the State 

to prove evidence which is relevant and legally connected with the charge for which the 

accused is being tried.” Syllabus point 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 

(1974). 

6. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 

L. Ed. 2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to 

the United States Constitution and Section 14 of Article III of the West Virginia Constitution 

bars the admission of a testimonial statement by a witness who does not appear at trial, unless 

the witness is unavailable to testify and the accused had a prior opportunity to cross-examine 

the witness.” Syllabus point 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006). 

7. “In a criminal case, the burden is upon the beneficiary of a constitutional 

error to prove beyond a reasonable doubt that the error complained of did not contribute to 

the verdict obtained.” Syllabus point 3, State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727 

(2012). 

8. “‘To constitute probable cause for the issuance of a search warrant, the 

affiant must set forth facts indicating the existence of criminal activities which would justify 

a search and further, if there is an unnamed informant, sufficient facts must be set forth 

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demonstrating that the information obtained from the unnamed informant is reliable.’ 

Syllabus point 1, State v. Stone, 165 W. Va. 266, 268 S.E.2d 50 (1980).” Syllabus point 1, 

State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982). 

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Per Curiam: 

The petitioner herein and defendant below, Charles Edward Bruffey 

(hereinafter “Mr. Bruffey”), was sentenced on January 18, 2012, to a term of incarceration 

of ten to twenty years following his jury conviction for robbery. Mr. Bruffey asserts that the 

trial court committed four errors: (1) admitting the prosecution’s solicited testimony on Mr. 

Bruffey’s silence post-Miranda1 warning; (2) allowing Rule 404(b) evidence of a second 

uncharged bank robbery without an adequate McGinnis2 hearing; (3) violating Mr. Bruffey’s 

Sixth Amendment rights by permitting a police officer to testify about statements made by 

a witness who did not take the stand at trial; and (4) finding that the investigating officer’s 

affidavit was sufficient to establish probable cause for a search warrant. Based upon the 

parties’ written briefs and oral arguments, the appendix record designated for our 

consideration, and the pertinent authorities, we affirm the circuit court. 

I.
 

FACTUAL AND PROCEDURAL HISTORY
 

The facts of this case intertwine two separate bank robberies: one that occurred 

on December 23, 2009 (hereinafter the “charged robbery”) and a subsequent robbery that 

1

See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966). 

2

See State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994), discussed in 

more detail infra. 

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took place on February 26, 2010 (hereinafter the “uncharged robbery” or “second robbery”). 

This appeal directly involves only Mr. Bruffey’s conviction for the charged robbery.3 

A. Charged Robbery 

At about 9:30 a.m. on December 23, 2009, a white male with blue eyes entered 

the M&T Bank in Fort Ashby, West Virginia. He was wearing a hat, a hood, a scarf, and a 

Carhart-type jacket that had duct tape over the name badge area. The man approached the 

bank teller and said, “this is a robbery . . . give me all your loose bills . . . place them on the 

counter . . . no bait money or dye pack.” The robber was apologetic for his actions, 

explaining that he “was sorry,” that he had “lost his job,” and that he “had to [rob the bank].” 

The teller gave money to the robber totaling $1618.00. The robber then fled the bank on 

foot, turning left immediately upon exiting the bank’s front doors. 

Minutes after the robbery, Sergeant Droppleman arrived on the scene. He 

requested that a K-9 dog “tail” the robber. The dog found a scent and tracked it to a red car 

that was parked in a parking lot about three hundred feet from the bank. A freshly-smoked 

cigarette butt was found on the ground beside the red car. Sergeant Droppleman spoke to the 

3

At some point in time thereafter, Mr. Bruffey was indicted for participation 

in the uncharged robbery; however, that case is not before us. The uncharged robbery is 

germane to this case only insofar as its facts were used to buttress the evidence used in the 

trial of the charged robbery. 

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owner of the red car spotted by the K-9 officer on the morning of the charged robbery. The 

owner of the red car told the Sergeant that he saw a purple car parked near his red car, and 

that a man was sitting in the purple car and smoking a cigarette. The cigarette butt found on 

the morning of the charged robbery contained Mr. Bruffey’s DNA. Mr. Bruffey eventually 

was indicted for the first robbery in January 2011. A jury trial was held September 26 and 

27, 2011, which ultimately resulted in a conviction. 

B. Uncharged Robbery 

About two months after the first robbery, on February 26, 2010, the bank was 

robbed again by a white, unarmed male with blue eyes. The robber was wearing a coat and 

a hooded sweatshirt, and had a burgundy-colored scarf around his face. He did not speak but 

handed the teller a note demanding money, which stated, “This is a robbery[.] [G]ive me 

$20-$50-$100 dollar bills[.] Put the money on the counter spread out[.] No tricks, dye 

packs, bait money[.] No one gets hurt.” 

During the ensuing investigation, Sergeant Droppleman was informed that a 

purple car also had been seen in the same parking lot a couple of days before the uncharged 

robbery. The Sergeant was able to link the purple car to Mr. Bruffey. Moreover, a 

handwriting expert with the Federal Bureau of Investigation (hereinafter “FBI”) determined 

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that the demand note used in the commission of the uncharged robbery had been written by 

Mr. Bruffey. 

C. Procedural History of Charged Robbery 

Subsequent to this second incident, Sergeant Droppleman suspected Mr. 

Bruffey as the perpetrator of the first bank robbery. A search warrant was secured and 

executed on Mr. Bruffey’s residence. Pursuant to the search, property was seized including 

a blue jacket, a grey hooded sweatshirt, a maroon cloth, two blue notebooks containing 

known writing by Mr. Bruffey, and a pack of cigarettes. Further, Sergeant Droppleman 

obtained a mouth swab from Mr. Bruffey to be used in DNA comparison for the cigarette 

butts found at the scene of the charged robbery. 

At a June 28, 2011, pre-trial hearing, the circuit court heard argument regarding 

the State’s “Notice of Intent to Use 404(b)” evidence. In this regard, the State sought to use 

evidence during the trial of the charged robbery that had been obtained through the 

investigation of the uncharged robbery. While Mr. Bruffey had not yet been charged with 

the February 26, 2010, robbery,4 the State wished to use such evidence to establish Mr. 

Bruffey’s common scheme and plan, to identify Mr. Bruffey as the perpetrator, and to show 

4

At some later time, Mr. Bruffey was charged with the second robbery. 

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the plan and intent of Mr. Bruffey. The State sought to enter, among other things, the 

testimony of an FBI handwriting expert who had determined that Mr. Bruffey wrote the 

demand note used in the uncharged robbery, as well as evidence regarding the purple car 

owned by Mr. Bruffey and its appearance close in time and proximity to both bank robberies. 

After the hearing on the 404(b) evidence, the circuit court entered a July 7, 

2011, order stating, in relevant part, as follows: 

2. [The robber] told the teller that “this is a robbery”, 

“give me all your loose money”, directed her to lay the money 

on the counter, asked “if there were any bait or die (sic) packs”, 

stated that he “wouldn’t hurt me [the teller]”, and that “he had 

just lost his job and he had to do this”. 

. . . . 

4. [T]he M&T Bank . . . was robbed a second 

time . . . The suspect . . . held up a note . . . that stated: “This is 

a robbery give me $20-$50-$100 dollar bills lots Put the money 

on the counter spread out No tricks, dye packs, bait money No 

one gets hurt”. 

5. Sgt. Droppleman suspected that [Mr. Bruffey] was 

the robber in the first bank robbery and executed a search 

warrant on his residence. The property seized included a blue 

jacket, gray hooded sweatshirt, maroon cloth, two blue lined 

notebooks containing know [sic] writing of [Mr. Bruffey’s], and 

a pack of Pall Mall cigarettes. Sgt. Droppleman also obtained 

a mouth swab from [Mr. Bruffey] for DNA comparison[.] 

. . . . 

7. The note that was recovered from the scene at the 

second robbery was submitted to the FBI crime lab for 

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comparison to the recovered samples from the search. . . . the 

FBI examiner confirmed that the note was authored by [Mr. 

Bruffey]. 

. . . . 

10. In conducting the McGinnis analysis, this Court is 

convinced by a preponderance of the evidence that the second 

robbery did occur and that [Mr. Bruffey] was the person who 

committed it based upon the fact that [Mr. Bruffey] robbed the 

exact same bank in an almost identical manner. The Court 

likewise is convinced based upon the results of the handwriting 

analysis that [Mr. Bruffey] did author the note found at the 

second robbery. Additionally, the use of the terms “bait money” 

and “dye pack” during both robberies seems to indicate that the 

same actor was involved on both occasions. . . . 

Following a two-day jury trial, Mr. Bruffey was convicted on September 27, 

2011, of the charged robbery in violation of W. Va. Code § 61-2-12 (2000) (Repl. Vol. 

2010). During the December 28, 2011, sentencing hearing, the circuit court denied Mr. 

Bruffey’s motion for a new trial and sentenced him to not less than ten nor more than twenty 

years in prison. The circuit court’s sentencing order was entered January 18, 2012, and this 

appeal followed on February 3, 2012. 

II. 

STANDARD OF REVIEW 

This case comes before this Court on appeal from a sentencing order. We 

previously have explained our standard of reviewing sentencing orders as follows: “The 

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Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of 

discretion standard, unless the order violates statutory or constitutional commands.” Syl. pt. 

1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). With respect to Mr. 

Bruffey’s challenges to the circuit court’s evidentiary rulings, we note that, generally, “[t]he 

action of a trial court in admitting or excluding evidence in the exercise of its discretion will 

not be disturbed by the appellate court unless it appears that such action amounts to an abuse 

of discretion.” Syl. pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled 

on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994). 

Mindful of these guidelines, we turn to the arguments raised herein. Additional standards 

for our review are set out in our discussion of the particular issues to which they pertain. 

III.
 

DISCUSSION
 

On appeal to this Court, Mr. Bruffey sets forth four assignments of error: (1) 

the admission of the prosecution’s solicited testimony on Mr. Bruffey’s silence 

post-Miranda5 warning; (2) the admission of Rule 404(b) evidence of a second uncharged 

bank robbery without an adequate McGinnis6 hearing; (3) the violation of Mr. Bruffey’s 

Sixth Amendment rights by permitting a police officer to testify about statements made by 

5

See note 1, supra.
 

6

See State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994), infra.
 

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a witness who did not take the stand at trial; and (4) the conclusion that the investigating 

officer’s affidavit was sufficient to establish probable cause for a search warrant. We will 

address each issue individually. 

A. Silence Post-Miranda Warning 

Mr. Bruffey’s initial assignment of error is that the prosecution improperly 

solicited trial testimony that commented on his silence post-Miranda warning. Moreover, 

Mr. Bruffey asserts that his counsel’s failure to object to the statements was plain error. The 

State, conversely, asserts that none of the statements of which Mr. Bruffey complains 

amounted to an improper reference to his silence. 

Both Article III, Section 5 of the West Virginia Constitution and the Sixth 

Amendment of the United States Constitution provide a constitutional right to remain silent. 

It is reversible error for the State to cross-examine a defendant in regard to his pre-trial 

silence or to comment on the defendant’s silence to the jury. State v. Boyd, 160 W. Va. 234, 

233 S.E.2d 710 (1977). See also State v. Fortner, 150 W. Va. 571, 148 S.E.2d 669 (1966), 

overruled on other grounds. Defendants are presumed innocent at trial, “[s]o the law having 

brought the prisoner into court against his will, [must] not permit his silence to be treated or 

used as evidence against him.” State v. Taylor, 57 W. Va. 228, 50 S.E. 247 (1905). 

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Mr. Bruffey argues that, during the State’s opening statement, it made 

reference to his pre-trial silence by commenting, “[o]n another occasion, after another 

Miranda warning was given, Sergeant Droppleman also was told by [Mr. Bruffey], ‘I think 

I should wait to talk to you about this,’ and said nothing further.” Then, during the State’s 

case-in-chief, the prosecutor solicited the following response from Sergeant Droppleman, 

“[W]e didn’t take a written statement. [Mr. Bruffey] didn’t want to provide one, which is 

his right.” Thereafter, the prosecutor asked Sergeant Droppleman, “Did [Mr. Bruffey] make 

anystatement to you on the occasion after being advised of his rights?” Sergeant Droppleman 

replied: 

Yes. On October 13th 2010, I located [Mr. Bruffey] at 

Ray’s Texaco, at which point in time I took him into 

custody . . . . I read his Miranda rights at the counter and then 

took him out. We drove to the office. And then after I got him 

to the office before processing, I filled out another Miranda 

form, a written form, he did initial portions of that form, but 

decided not to sign it. He didn’t want to sign a waiver. He 

didn’t want to waive his rights and provide a written statement 

to me at that time. 

As previously noted, Mr. Bruffey invites this Court to invoke the plain error 

doctrine because his counsel failed to object to the alleged post-Miranda silence comments. 

The plain error doctrine is set forth in Syllabus point 7 of State v. Miller, 194 W. Va. 3, 459 

S.E.2d 114 (1995), which states: “To trigger application of the ‘plain error’ doctrine, there 

must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously 

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affects the fairness, integrity, or public reputation of the judicial proceedings.” We find that, 

under the facts of the present case, the first prong of the test has not been satisfied. That is, 

there was no error, as established by a full reading of the record. 

The prosecution’s and Sergeant Droppleman’s brief references to Mr. Bruffey’s 

Miranda warnings were not made to call attention to Mr. Bruffey’s pre-trial silence but rather 

to properly lay the foundation for the admission of Mr. Bruffey’s inculpatory statements that 

he made after he was read his Miranda warnings. The inculpatory statements were that he 

“had been unemployed and out of work for a number of months,” and “I’m going to jail for 

a long time.” The first statement was relevant because the bank robber had told the teller that 

he had lost his job. The second statement was relevant as a tacit admission of guilt. 

We agree with Mr. Bruffey that it would have been improper for the State to 

suggest that his silence is indicative of guilt. Importantly, the State did not comment on Mr. 

Bruffey’s silence. Rather, the State merely directed the jury’s attention to Mr. Bruffey’s 

inculpatory statements. For these reasons, petitioner’s first assignment of error is without 

merit. 

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B. 404(b) Evidence 

Next, Mr. Bruffey argues that the circuit court committed reversible error in 

admitting Rule 404(b) evidence regarding the uncharged robbery for the purpose of showing 

a common plan or scheme and identity because: (1) the circuit court admitted the evidence 

solely on the State’s proffer; (2) Mr. Bruffey had not been charged with the second robbery 

when the circuit court admitted the evidence; and (3) the evidence was highly prejudicial. 

To the contrary, however, the State asserts that the evidence proffered at the pre-trial hearing 

on the 404(b) evidence was sufficient for the circuit court to find it both admissible and 

relevant. 

Specifically, it is well established that 

[t]he standard of review for a trial court’s admission of 

evidence pursuant to Rule 404(b) involves a three-step 

analysis. First, we review for clear error the trial court’s factual 

determination that there is sufficient evidence to show the other 

acts occurred. Second, we review de novo whether the trial 

court correctly found the evidence was admissible for a 

legitimate purpose. Third we review for an abuse of discretion 

the trial court’s conclusion that the “other acts” evidence is more 

probative than prejudicial under Rule 403. 

State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). Moreover, this 

Court previously has recognized that its function on appeal 

is limited to the inquiry as to whether the trial court acted in a 

way that was so arbitrary and irrational that it can be said to 

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have abused its discretion. In reviewing the admission of Rule 

404(b) evidence, we review it in the light most favorable to the 

party offering the evidence, in this case the prosecution, 

maximizing its probative value and minimizing its prejudicial 

effect. 

State v. Willett, 223 W. Va. 394, 397, 674 S.E.2d 602, 605 (2009) (per curiam). 

Generally, 

[e]vidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show 

that he acted in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident. W. Va. R. Evid. 404(b). 

Syl. pt. 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Rule 404(b) 

of the West Virginia Rules of Evidence states as follows: 

(b) Other crimes, wrongs, or acts. – Evidence of other 

crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show that he or she acted in conformity 

therewith. It may, however, be admissible for other purposes, 

such as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident, provided 

that upon request by the accused, the prosecution in a criminal 

case shall provide reasonable notice in advance of trial, or 

during trial if the court excuses pretrial notice on good cause 

shown, of the general nature of any such evidence it intends to 

introduce at trial. 

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 

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Evidence, is to determine its admissibility. Before admitting the evidence, the trial court 

should conduct an in camera hearing. 

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, State v. McGinnis, 193 W. Va. 147, 455 S.E.2 516 (1994). In conducting the 

foregoing analysis, trial courts have been directed that, 

[i]n the exercise of discretion to admit or exclude 

evidence of collateral crimes and charges, the overriding 

considerations for the trial court are to scrupulously protect the 

accused in his right to a fair trial while adequately preserving the 

right of the State to prove evidence which is relevant and legally 

connected with the charge for which the accused is being tried. 

Syl. pt. 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974). In that regard, this 

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Court has recognized that, “[a]s to the balancing under Rule 403, the trial court enjoys broad 

discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial 

court’s discretion will not be overturned absent a showing of clear abuse.” Syl. pt. 10, in 

part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). 

In the instant case, there was sufficient evidence for the circuit court to find 

that the second robbery occurred, that Mr. Bruffey was the perpetrator of the second robbery, 

and that the two robberies were sufficiently similar to show a common plan or scheme and 

identity. First, an FBI handwriting expert found the handwriting on the demand note used 

in the second robbery to be Mr. Bruffey’s. Second, the two robberies involved the same bank 

and occurred within a short period of time. Third, the robber in both crimes was an unarmed 

white man with blue eyes who used clothing to cover his face and who told the teller not to 

use dye packs or bait money. The State also alleged that there was substantial forensic 

evidence linking petitioner to both crimes, including Mr. Bruffey’s DNA on the cigarette butt 

found near the scene after the charged robbery. Further, the similarity and uniqueness of the 

language used (verbally, in the first robbery, and written, in the second robbery) requesting 

the money be spread out and no bait or dye packs be used; the FBI’s positive identification 

of the defendant’s handwriting on the note used during the uncharged robbery; the similar 

clothing; the references by the robber to needing money because of unemployment and the 

conversations Mr. Bruffey had with the investigating officer; and two separate eye witnesses 

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describing the same uniquely-colored car at both robberies was all evidence that was proper 

to show a common plan or scheme and identity. In this regard, the circuit court found “by 

a preponderance of the evidence that the second robbery occurred and that [Mr. Bruffey] 

committed the second robbery due to the similarity between the two crimes, the FBI’s 

handwriting analysis, and the language in the demand note regarding dye packs and bait 

money.” 

This Court has affirmed the entry of “other crimes” evidence where the crimes 

were near in time and of a similar character. See State v. Bunda, 187 W. Va. 389, 395, 419 

S.E.2d 457, 463 (1992) (per curiam); State v. Johnson, 105 W. Va. 598, 143 S.E. 352, 353 

(1928). Therefore, in light of the McGinnis standard, the circuit court did not act in an 

arbitrary manner and did not abuse its discretion in concluding that the substantial probative 

value of the 404(b) evidence outweighed any prejudicial effect. 

As a final note regarding the 404(b) evidence, at the hearing on the matter, the 

trial court relied upon the evidence proffered by the State in its written notice of 404(b) 

evidence. The defense did not object to this procedure. Before this Court, however, Mr. 

Bruffey proposes that the State was required to discuss its evidence in specific terms at the 

McGinnis hearing, relying upon this Court’s admonition in State v. Dolin: 

[T]he trial court [held] an in camera hearing prior to trial to 

consider the admissibility of the collateral crime evidence. 

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However, at the hearing, the specific collateral . . . offenses the 

State planned to present at trial and the possible applicable 

exceptions were simply discussed in general terms. The in 

camera hearing is rendered meaningless if a trial court is not 

informed specifically of the details surrounding each collateral 

offense and is not informed of which exception is applicable. A 

trial court needs such information so that it can examine the 

similarities and differences between the collateral offenses and 

the present offense and can apply the balancing test to determine 

whether the probative value outweighs the prejudicial effect of 

such evidence. 

176 W. Va. 688, 693-94, 347 S.E.2d 208, 214 (1986), overruled on other grounds. However, 

Dolin further explains that the purpose of a 404(b) hearing is to allow a trial court to consider 

“the similarities and differences between the collateral offenses and the present offenses [so 

it] can supply the balancing test to determine whether the probative value outweighs the 

prejudicial effect of such evidence.” Id.,176 W. Va. at 694, 347 S.E.2d at 214. In the instant 

case, the trial court accomplished that purpose as demonstrated by its resulting order which 

reviewed at length the similarities between the charged and the uncharged offenses and 

determined that the probative value of the 404(b) evidence outweighed anyprejudicial effect. 

Mr. Bruffey simply has not pointed to a single instance of “clear error” in the circuit court’s 

findings and conclusions to warrant reversal of his conviction on this ground. 

C. Testimonial Statements from Non-Trial Witness 

Mr. Bruffey’s third assignment of error contends that the lower court 

improperly allowed trial testimony to be elicited without the witness being called at trial. 

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Specifically, during trial, the prosecution asked Sergeant Droppleman how he had identified 

Mr. Bruffey’s car. The Sergeant replied: “I want to be careful about what I say-but after the 

second robbery, there had been another witness come forward and said that, that [Mr. 

Bruffey’s purple] vehicle was near the scene.” The defense objected. The Court overruled 

the objection and said, “Go ahead Sergeant Droppleman. You said another witness had given 

you some information.” Sergeant Droppleman then testified that a witness said that he saw 

a purple car parked near the bank two days before the second robbery. 

We have recognized that, 

[p]ursuant to Crawford v. Washington, 541 U.S. 36, 124 

S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Confrontation Clause 

contained within the Sixth Amendment to the United States 

Constitution and Section 14 of Article III of the West Virginia 

Constitution bars the admission of a testimonial statement by a 

witness who does not appear at trial, unless the witness is 

unavailable to testify and the accused had a prior opportunity to 

cross-examine the witness. 

Syl. pt. 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006). 

Mr. Bruffeyargues that the witness’s statement to the Sergeant was testimonial 

because (1) the Sergeant was gathering information from the witness as part of his underlying 

investigation, (2) there was no ongoing emergency when the statement was made, and (3) the 

reason for taking the statement was to establish or prove past events potentially relevant to 

later criminal prosecution. Mr. Bruffey avers that the Sergeant’s testimony regarding the 

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testimonial statement violated his Sixth Amendment right to confront witnesses against him 

because the witness did not testify at trial, and, thus, he did not have an opportunity to 

cross-examine the witness about the statement. However, even assuming that Mr. Bruffey’s 

contention is true, we find the introduction of such evidence to be harmless. 

We have stated that violation of a constitutional right constitutes reversible 

error unless that error is harmless beyond a reasonable doubt. Mechling, 219 W. Va. at 371, 

633 S.E.2d at 316. Further, “[i]n a criminal case, the burden is upon the beneficiary of a 

constitutional error to prove beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.” Syl. pt. 3, State v. Frazier, 229 W. Va. 724, 735 S.E.2d 

727 (2012). See also Syl. pt. 4, State v. Jenkins, 195 W. Va. 620, 466 S.E.2d 471 (1995) 

(“Errors involving deprivation of constitutional rights will be regarded as harmless only if 

there is no reasonable possibility that the violation contributed to the conviction.” Syl. pt. 

20, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974)). 

A review of the record reveals that the statements from the non-trial witness 

were not introduced to inculpate Mr. Bruffey. Rather, they were introduced to explain how 

the Sergeant came to identify Mr. Bruffey as a potential suspect and how the Sergeant located 

Mr. Bruffey. Second, Mr. Bruffey never denied owning the purple car. Third, there was no 

Crawford or Mechling violation because the non-trial statements were not testimonial 

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statements directed at establishing the facts of a past crime, but simply part of the res gestae 

of the Sergeant’s investigation. Assuming, arguendo, that the statements were testimonial, 

they addressed an ancillary and uncontested fact, and, in light of all of the evidence against 

Mr. Bruffey, could not have made any difference in the jury’s verdict. Lastly, another 

witness placed Mr. Bruffey’s purple car at the scene of the first robbery, which evidence was 

not objected to by Mr. Bruffey. Accordingly, we find that the circuit court did not err in this 

regard. 

D. Probable Cause for Search Warrant 

Finally, Mr. Bruffey argues that the affidavit upon which the issuance of the 

search warrant was based was insufficient to form probable cause. This Court has 

recognized: 

“To constitute probable cause for the issuance of a search 

warrant, the affiant must set forth facts indicating the existence 

of criminal activities which would justify a search and further, 

if there is an unnamed informant, sufficient facts must be set 

forth demonstrating that the information obtained from the 

unnamed informant is reliable.” Syllabus point 1, State v. Stone, 

165 W. Va. 266, 268 S.E.2d 50 (1980). 

Syl. pt. 1, State v. Hall, 171 W. Va. 212, 298 S.E.2d 246 (1982). 

The affidavit attached to Sergeant Droppleman’s search warrant complaint 

relied heavily on the following: (1) a witness saw a purple car parked near the bank two days 

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before the second robbery; (2) Mr. Bruffey became nervous when the Sergeant questioned 

him about the robberies; and (3) a witness saw an unidentifiable man in a parking lot on the 

morning of the first robbery. Mr. Bruffey argues that the affidavit contained merely 

conclusory speculations. Our review of the affidavit, however, shows that Mr. Bruffey 

mischaracterizes Sergeant Droppleman’s affidavit. It is detailed and sets forth ample 

grounds that establish probable cause. As such, it properly supported the issuance of the 

search warrant and does not constitute reversible error in this case. 

IV.
 

CONCLUSION
 

Based on the foregoing, the circuit court’s January18, 2012, order, is affirmed. 

Affirmed. 

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