STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Plaintiff Below, Respondent FILED 

January 5, 2018 

vs) No. 16-1066 (Ohio County 16-F-47) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Richard W. Zimmerman, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Richard W. Zimmerman, by counsel Matthew Brummond, appeals his August 

26, 2016, conviction of one count of sexual abuse in the first degree, in violation of West 

Virginia Code § 61-8B-7(a)(1). Respondent State of West Virginia, by counsel Shannon 

Frederick Kiser, filed a response in support of the circuit court’s order. Petitioner argues that the 

circuit court erred in permitting the introduction of evidence of petitioner’s lustful disposition 

towards children where the victim at issue was over the age of consent, per West Virginia Code § 

61-8B-2, but under the date of majority. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 

21(d) of the Rules of Appellate Procedure. 

In February of 2016, a friend of petitioner’s daughter (“victim”), accused petitioner of 

sexually abusing her while she was an overnight guest at petitioner’s residence. At the time of 

the alleged abuse, the victim was seventeen-years-old, the same age as petitioner’s daughter. 

Petitioner denied the sexual abuse allegations and stated that the contact between himself and the 

victim was consensual. During her trial testimony, the victim testified that on the night in 

question, petitioner returned home in the early morning hours to find his daughter and several of 

her friends asleep in the living room of the residence. Petitioner awoke the sleeping victim by 

throwing dog toys at her from an adjoining room. 

When the victim stirred, petitioner approached the couch on which the victim was 

sleeping and began tickling her feet. The victim testified that she asked the petitioner to stop and 

he replied, “Stop me.” Petitioner then put his hands inside the leg of victim’s sweatpants and 

began rubbing one of her legs. He then lifted the victim’s shirt and tickled her stomach. The 

victim testified that she again asked petitioner to stop. Petitioner responded to the victim’s 

request to stop by placing his hand over her mouth to stifle her speech. Petitioner then began 

licking the victim’s stomach and urged her to come with him to his bedroom. When the victim 

refused, petitioner pulled her by her arm to his bedroom. The victim testified that she discreetly 

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attempted to wake the other sleeping girls but was unsuccessful. 

Once in petitioner’s bedroom, the victim testified that petitioner closed the door and 

immediately “climbed atop” her. Petitioner lifted her shirt and began licking her stomach and 

breasts. Petitioner pulled down the victim’s sweatpants and underwear and digitally penetrated 

her sex organ. Petitioner requested that the victim have sexual intercourse with him, but she 

refused. The victim then told petitioner she would return to him the following day and he 

permitted her to leave. Upon leaving petitioner’s room, the victim woke another girl who had 

been sleeping in the bedroom of petitioner’s daughter. The victim, then crying, told the girl that 

petitioner had been “touching [her],” and asked for a ride away from petitioner’s home. The 

victim then left petitioner’s home. Thereafter, petitioner began communicating with the victim 

by telephone and asked for nude pictures of her and for her to return to his residence. 

In early May of 2016, petitioner was indicted on one count of sexual assault in the second 

degree and one count of sexual abuse in the first degree related to his contact with the victim in 

February of 2016. During discovery, the State filed a notice to use evidence pursuant to Rule 

404(b) of the West Virginia Rules of Evidence. Specifically, the State sought to introduce 

evidence of petitioner’s prior domestic battery charge against his former wife and evidence of 

“inappropriate text messages received by three individuals, two of who were minor children at 

the time of the incident in question.” The State argued that this evidence established petitioner’s 

lustful disposition towards children. Petitioner argued that such evidence was improper as it 

showed petitioner’s “lascivious acts towards individuals” who were adults, despite being legally 

classified as minors, and showed no lustful disposition towards children. 

In accord with State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), a hearing was 

held on the State’s 404(b) notice on August 3, 2016. Several witnesses offered testimony at the 

hearing including, A.R. (sixteen-years-old at the time she received a sexually suggestive text 

message from petitioner), Z.W. (a sixteen-year-old who received a sexually suggestive text 

message from petitioner), Z.W.’s mother, Z.W.’s uncle, and the victim. 

A.R. testified that she received a text message from petitioner, in which he stated, “I just 

picture you on my couch with those short a** shorts on, but in my mind they weren’t there.” 

A.R. did not report petitioner’s inappropriate text to anyone, but blocked petitioner’s telephone 

number from further contact. Z.W. testified that she received text messages from petitioner, 

including one that stated she looked “sexy as hell.” Z.W. testified that she sent the message to 

her mother, who contacted petitioner. The mother of Z.W. testified that when her daughter 

reported receiving sexually suggestive messages from petitioner, she contacted petitioner who 

blamed the messages on his son. Petitioner’s son called to apologize for the messages, but 

Z.W.’s mother did not believe that petitioner’s son sent such messages, as the messages referred 

to her daughter by a nickname which only petitioner called her. Z.W.’s uncle testified that 

petitioner later apologized to him for sending Z.W. inappropriate text messages. The State 

argued that Z.W., A.R., and the victim shared similar physical features and characteristics. 

By order entered August 10, 2016, the circuit court granted in part, and denied, in part, 

the State’s request to admit 404(b) evidence at trial. Specifically, the court denied the admission 

of 404(b) testimony regarding petitioner’s former wife. However, the court ruled that the text 

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messages sent by petitioner to A.R. and Z.W. were admissible as they showed petitioner’s lustful 

disposition towards other children, occurred reasonably close in time to the incident involving 

the victim, and involved children similarly situated to the victim. The court found that the 

probative value of such evidence substantially outweighed any perceived danger of unfair 

prejudice. 

On August 24, 2016, petitioner’s trial commenced. At trial, the victim testified, along 

with petitioner’s daughter who acknowledged she saw the text messages sent by petitioner to the 

victim. Next, 404(b) witness A.R., testified. Prior to her testimony, the court read a limiting 

instruction to the jury.1 The next witness to testify was Z.W., another 404(b) witness. Again, 

prior to Z.W.’s testimony, the court again provided a limiting instruction to the jury. Several 

additional witnesses were called by the State, including the investigating officer and petitioner’s 

girlfriend. Ultimately, petitioner was acquitted of the sexual assault of the victim, but was found 

guilty of the charge of sexual abuse in the first degree. It is from his August 26, 2016, jury 

conviction that petitioner now appeals. 

On appeal, petitioner argues that the circuit court erred in permitting the introduction of 

404(b) evidence relating to petitioner’s lustful disposition towards children at trial. As to a trial 

court’s rulings on the admission of improper evidence, we have found that “[a] trial court’s 

evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review 

under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 

S.E.2d 469 (1998). Accord Syl. Pt. 5, State v. Gibbs, 238 W. Va. 646, 797 S.E.2d 623 (2017). 

Further, we have long held that 

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

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

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

court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 

688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, 

the trial court must be satisfied by a preponderance of the evidence that the acts or 

conduct occurred and that the defendant committed the acts. If the trial court does 

not find by a preponderance of the evidence that the 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 

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The court’s limiting instruction advised jurors as follows: 

evidence of collateral acts of misconduct is not to be considered as establishing 

guilt of the crime for which the defendant is charged, but you may consider that 

evidence for the limited purpose of establishing the defendant’s intent, the 

defendant’s lustful disposition towards [the victim] and the defendant’s lustful 

disposition towards girls around the age of 16 years. 

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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[.] 

Syl. Pt. 2, in part, McGinnis. 

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

that the standard of review 

for a trial court’s admission of evidence pursuant to Rule 404(b) involves a threestep 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. 

With these principles in mind, we now turn to petitioner’s assignment of error. The 

parties agree that in State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990), this 

Court held that 

[c]ollateral 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 incidents reasonably close in time to the 

incident(s) giving rise to the indictment. 

Id. at syl. pt. 2, in part. 

Addressing the first of our three-step standard of review of the admission of Rule 404(b) 

evidence, articulated in LaRock, we find no error in the circuit court’s determination that there 

was sufficient evidence to show that the acts in question actually occurred. Here, there is no 

dispute of the occurrence of the acts. As to the second and third steps of the standard of review, 

we find that the circuit court properly ruled that this evidence was admissible for a legitimate 

purpose and did not abuse its discretion in determining that such evidence was more probative 

than prejudicial. We note our prior finding that “[t]his Court reviews disputed evidence in the 

light most favorable to its proponent, [in this case, the State,] maximizing its probative value and 

minimizing its prejudicial effects.” LaRock, 196 W. Va. at 312, 470 S.E.2d at 631; see also 

McGinnis, 193 W. Va. at 159, 455 S.E.2d at 528. 

Petitioner argues that the circuit court’s admission of lustful disposition evidence 

involving A.R. and Z.W. was improper as both A.R. and Z.W. were over the age of sixteen, the 

age of consent, at the time of their communications with petitioner. Petitioner advocates that this 

Court adopt a “bright-line” test qualifying that the admissibility of lustful disposition towards 

children evidence is only proper where the victim and those who are the subject of the other 

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crimes are over the age of consent as established in West Virginia Code § 61-8B-2. Petitioner 

argues that the West Virginia Legislature has determined, in West Virginia Code § 61-8B-2, that 

persons over the age of sixteen are generally deemed capable of providing consent in the context 

of sexual acts. 

Respondent counters that the circuit court properly admitted evidence of petitioner’s 

communications with A.R., and Z.W., as contemplated by this Court’s ruling in Edward Charles 

L., and this Court’s prior rulings defining “children” as anyone under the age of majority in West 

Virginia. See State v. McIntosh, 207 W. Va. 561, 534 S.E.2d 757 (2000), and State v. Robert 

Scott R., Jr., 233 W. Va. 12, 754 S.E.2d 588 (2014). Based on our review of record herein, we 

concur with respondent and find that the circuit court did not commit error with respect to the 

admission of 404(b) evidence. Here, the circuit court completed the necessary pre-trial review of 

the subject evidence and provided a limiting instruction at trial. Further, petitioner was provided 

with the opportunity to cross-examine each of the witnesses at trial. Accordingly, we find no 

error. 

For the foregoing reasons, we affirm petitioner’s August 26, 2016, jury conviction. 

Affirmed. 

ISSUED: January 5, 2018 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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