1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 17-0913 (Greenbrier County 15-F-176)

Crystal W.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Crystal W., by counsel Dana F. Eddy, appeals the Circuit Court of Greenbrier

County’s September 18, 2017, order sentencing her to a term of incarceration of two to ten years

following her conviction of child abuse resulting in serious bodily injury.

1 Respondent State of 

West Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit 

court’s order. The West Virginia Innocence Project, by counsel Velena Beety and Zachary Gray, 

filed an amicus curiae brief in support of petitioner’s appeal. Petitioner filed a reply. On appeal, 

petitioner argues that circuit court erred in denying her a continuance in order to retain an expert 

witness and in permitting the State to present the victim to the jury. 

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 of the 

Rules of Appellate Procedure.

The events giving rise to this appeal occurred in March of 2015. According to the record, 

upon returning from work, petitioner—the victim’s mother—entered the bedroom of her eightmonth-old child (the “victim”). The father then heard the victim crying before petitioner called for 

help. According to the father, he observed the victim seizing and told petitioner to call 9-1-1. 

 

1Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W. 

Va. 641, 398 S.E.2d 123 (1990).

FILED

January 17, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Paramedics took the victim to Greenbrier Valley Medical Center, which determined that their 

facility was not equipped to handle the victim’s injuries. Doctors contacted Roanoke Memorial 

Hospital (“RMH”), which immediately dispatched an infant trauma unit. Doctors at RMH 

diagnosed the victim with Shaken Baby Syndrome (“SBS”) based upon a “triad” of symptoms 

characteristic of the condition. As petitioner concedes, “[a]lthough the [victim] survived, he will 

be permanently in a vegetative, comatose state.”

In October of 2015, the grand jury returned an indictment against petitioner for child abuse 

resulting in serious bodily injury, in violation of West Virginia Code § 61-8D-3(b).2 Over the 

course of the next year, several different attorneys were appointed to represent petitioner. During 

that period, the State continued to release discovery, including up to less than three months prior 

to trial. Specifically, in March of 2017, petitioner obtained a continuance based on the State’s 

production of the victim’s medical records from RMH. The State did not oppose the continuance, 

given that its recent discovery responses were delayed due to the subpoena’s rejection by RMH.

At this point, trial was scheduled to begin on June 21, 2017. Three days prior to trial, on 

June 19, 2017, petitioner filed a motion for public funding for expert assistance and a motion to 

continue. In the motion for an expert, petitioner stated that, during a meeting between petitioner’s 

counsel and the State, “the State verbally advised Counsel for the Defendant that the State did not

intend to present any evidence of the medical treatment of the injured child . . . provided at [RMH] 

and would rely on the medical evidence from Greenbrier Valley [Medical Center] only.” Despite 

this prior assertion, petitioner indicated that “at a meeting held [nine days prior to trial on] June 

12, 2017, the State . . . advised counsel that it . . . intend[ed] to present evidence, and presumably 

expert testimony thereon, of the treatment of the injured child at hospital(s) in Roanoke, Va.” 

Petitioner additionally argues that this decision was made in spite of the fact that the State never 

disclosed an expert witness in its witness disclosures. According to petitioner’s counsel, although 

the medical records from RMH were provided in discovery, “[c]ounsel did not place much 

emphasis thereon since he was operating under the belief that [they] would not be used by the State 

at trial.” Petitioner’s counsel also indicated in the motion that, five days prior to trial, he attended 

a continuing legal education class regarding SBS where he learned that many experts believed that 

the “triad” of symptoms could be caused by other forms of trauma, many of which are the result 

of an accident. Accordingly, and “in light of recent evidentiary developments in th[e] case and 

recently discovered information regarding the potential availability of experts,” petitioner’s 

counsel asked that the court permit petitioner to retain an expert witness and continue the trial. The 

State responded to petitioner’s motion and disputed that it had previously advised petitioner it 

would not present evidence obtained from RMH. The State further argued that it provided 

petitioner with a copy of the victim’s RMH medical records on or about March 13, 2017, 

 

2According to West Virginia Code § 61-8D-3(b), “[i]f any parent . . . shall abuse a child 

and by such abuse cause said child serious bodily injury as such term is defined in section one, 

article eight-b of this chapter, then such parent, guardian or custodian shall be guilty of a felony.” 

Additionally, “serious bodily injury” is defined in West Virginia Code § 61-8B-1(10) as “bodily 

injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, 

prolonged impairment of health or prolonged loss or impairment of the function of any bodily 

organ.”
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evidencing its intention to introduce the material and highlighting the fact that petitioner sought, 

and obtained, a continuance on the basis of the late discovery responses. The State also asserted 

that it already compelled the appearance of witnesses for June 21, 2017, including several 

individuals from out of the state, and would be prejudiced by a continuance. The circuit court 

ultimately denied petitioner’s motions, finding that they were “not filed in a timely manner.” 

Trial began on June 21, 2017. Following jury selection, the State requested that the court 

allow it to introduce the victim to the jury. Petitioner objected, arguing that it served no purpose 

“except to unnecessarily and unfairly inflame the jury,” in addition to other grounds for the 

objection. The court granted the request, however, finding that one of the elements necessary to 

obtain a conviction is that the victim have a serious physical injury. Accordingly, the court ruled 

that the victim could be introduced to the jury if it would “not [be] harmful to the [victim] in any 

way, and [was] only briefly and . . . only for the purpose of showing the [victim’s] current physical 

condition.” Prior to opening statements, petitioner again objected to the State presenting the victim 

to the jury and offered to stipulate to the fact that the victim suffered a serious bodily injury. The 

State refused the stipulation and argued that the extent of the victim’s injuries was intertwined with 

the causation of the injuries, in addition to the jury being entitled to meet the victim. The circuit 

court agreed with the State, finding that “in order to understand what the doctor says happened, 

[the jury will] have to see [the victim’s] current physical condition.” Accordingly, during the 

State’s opening statement, the State brought the victim into the courtroom to introduce him to the 

jury. The jury thereafter convicted petitioner of the one count of child abuse resulting in serious 

bodily injury, and the circuit court sentenced her to a term of incarceration of two to ten years. It 

is from the sentencing order that petitioner appeals.

In her first assignment of error, petitioner alleges that the circuit court erred in denying her

motion to continue, “despite the urgent need for an expert witness and the State’s delay in 

designating an expert witness.” Upon our review, however, we find no error. 

“The granting of a continuance is a matter within the sound discretion of 

the trial court, though subject to review, and the refusal thereof is not ground for 

reversal unless it is made to appear that the court abused its discretion, and that its 

refusal has worked injury and prejudice to the rights of the party in whose behalf 

the motion was made.” Syllabus Point 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 

(1919).

Syl. Pt. 1, State v. Richardson, 240 W. Va. 310, 811 S.E.2d 260 (2018). Further, 

“[w]hether there has been an abuse of discretion in denying a continuance 

must be decided on a case-by-case basis in light of the factual circumstances 

presented, particularly the reasons for the continuance that were presented to the 

trial court at the time the request was denied.” Syllabus Point 3, State v. Bush, 163 

W.Va. 168, 255 S.E.2d 539 (1979).

Id. at 311, 811 S.E.2d at 260, syl. pt. 2. 
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As petitioner concedes, she filed her motions for an expert witness and continuance three 

days prior to trial. According to petitioner, the late filing was a result of her reliance on the State’s 

assurance that it would not introduce medical records from RMH at trial. This argument, however, 

is entirely unsupported by the record. In opposition to petitioner’s motions, the State disputed that 

it ever made such an assurance. The State further pointed out that it provided petitioner the records 

in question in discovery in March of 2017, evidencing its intention to use them at trial. Even more 

importantly, the State argued that petitioner moved for, and received, a continuance of the trial 

date upon receiving those records in order to review them. In fact, at the hearing in March of 2017 

where petitioner was granted a continuance based upon the disclosure of these records, the circuit 

court engaged in a discussion of the nature of the records as they related to the State’s prosecution,

and the following exchange occurred:

THE COURT: Does it look like a—what do you call it? Shaken baby 

syndrome type of case?

[PROSECUTOR]: Yes, sir.

THE COURT: So, the medical records are pretty critical, aren’t they?

[PROSECUTOR]: They are, Your Honor.

A review of the record shows that, contrary to petitioner’s assertion that she was unaware these 

medical records would be introduced, the State provided them in discovery, made it clear that these 

specific records would be “critical” to the prosecution, and did not oppose the first continuance 

petitioner was granted so that she could review the records and “regroup [to] be in a trial posture.” 

Petitioner further asserts that the State’s failure to designate an expert witness, coupled 

with counsel’s recent discovery that some medical professionals question the accuracy of SBS 

diagnoses based upon the triad of symptoms present in this case, necessitated a continuance on the 

eve of trial. Again, however, the record does not support petitioner’s assertion. Most importantly, 

petitioner fails to include any documentation to support her assertion that “[t]he State did not 

inform [p]etitioner’s counsel that it intended to call an expert witness until . . . nine days before 

trial.” Instead of including copies of the State’s witness disclosures3or other corroborating 

documents in the appendix to support this assertion, petitioner repeatedly cites to her own motion 

for an expert to establish that the State did, in fact, wait until shortly before trial to designate an 

expert. Petitioner’s unsupported assertions in this motion, however, are insufficient to establish 

that the State delayed designating an expert witness. Petitioner further asserts that a witness who 

was ultimately designated as an expert was originally “characterized as that of a custodian of 

records.” However, petitioner’s citation to the record in support of this assertion merely indicates 

that the State secured a witness who would testify about the RMH records. Petitioner fails to 

reference anything in the record that supports the assertion that the witness was characterized only 

 

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In her brief, petitioner supports her assertion that “[t]he State’s expert was not formally 

disclosed until three days before trial” by referencing a line in the certified docket sheet reflecting 

the filing of the State’s witness list. Given that the docket sheet contains no specific information 

contained in the disclosure, this citation lacks any substantive corroboration of petitioner’s claims. 
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as a records custodian. Based upon the nature of the case below, it was unreasonable for counsel 

to believe that the State would not introduce some expert testimony in prosecuting the case, given 

that it turned entirely on the opinions of medical personnel as to whether the victim’s injuries were 

non-accidental. Regardless of counsel’s late familiarization with the underlying subject matter, the 

fact remains that the need for an expert witness, as asserted by petitioner, should have been

apparent from the outset of the proceedings by the very nature of the evidence and the allegations 

against petitioner. 

Finally, while petitioner argues that the circuit court “assess[ed] the majority” of the 

continuances granted in the trial against her, the record similarly does not support this assertion. 

In response to petitioner’s renewed objection to the circuit court’s denial of her motion for a 

continuance, the circuit court clearly ruled that a continuance at that late stage was not warranted 

because the court did not “think that there’s anything new or novel that’s come out [at] the last 

minute.” Further, the court indicated that the State only intended to present five witnesses and that 

“[t]hese witnesses were known . . . for some time.” While it is true that the court discussed the age 

of the case as a factor motivating the denial of a continuance, it is clear that the court believed that 

petitioner had ample time to move for an expert witness, given that the nature of the case had not 

evolved over time. 

Based on the foregoing, it is clear that the court did not abuse its discretion in denying 

petitioner’s motion for a continuance in order to obtain an expert witness. As addressed above, the 

reasons petitioner presented to the court at the time the continuance was requested are not 

compelling, especially considering that the factual assertions petitioner relies on to establish that 

the delay in making her request were attributable entirely to the State are unsupported by the 

record. Further, petitioner cannot show that the denial of her motion for a continuance injured or 

otherwise prejudiced her rights. As set forth above, petitioner was given ample time to secure an 

expert witness to rebut the State’s theory that she inflicted non-accidental injuries upon the victim, 

including a prior continuance granted in March of 2017 after the State disclosed the victim’s 

medical records. Accordingly, we find that petitioner is entitled to no relief. 

Finally, petitioner argues that the circuit court erred in “allow[ing] the State to use a 

disabled child as a prop, intentionally inflaming the jury.” According to petitioner, she was unfairly 

prejudiced by the circuit court allowing the State to introduce the victim to the jury in furtherance 

of establishing the necessary element that he suffered a serious bodily injury. In support of her 

argument, petitioner cites to State v. Critzer, 167 W. Va. 655, 661, 280 S.E.2d 288, 292 (1981), to 

assert that error occurred because the State’s action was designed to “inflame the minds of the jury 

in order to gain a conviction based on emotions rather than evidence.” Although petitioner asserts 

that Critzer, while not directly on point, represents “[t]he clearest analogy to the present case,” we 

find that it is not controlling. In reaching the conclusion that the prosecutor’s actions in that case 

were intended to appeal to the jury’s emotions, the Court noted that the offending conduct included 

remarks by the prosecutor that misrepresented the evidence and, in some instances, constituted the 

argument of facts not in evidence. Id. at 660-61, 280 S.E.2d at 292. Such conduct was not present 

in the case on appeal. Far from arguing facts not in evidence in order to appeal to the jury’s 

sympathies, the State’s introduction of the victim to the jury in this case cannot be said to have 

been a misrepresentation of any kind, given that the record shows that the victim’s appearance, 
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readily observable by the jury, accurately represented the victim’s physical state and the effect of 

his injuries.4 Accordingly, we find that petitioner is not entitled to relief in this regard. 

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 17, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

 

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In support of this argument, petitioner also asserts that, in an attempt to obviate the need 

to introduce the victim to the jury, she offered to stipulate to the extent of the victim’s injuries. We 

note, however, that the State was not required to accept this stipulation. See Old Chief v. U.S., 519 

U.S. 172, 186-87 (1997) (“[A] criminal defendant may not stipulate or admit his way out of the 

full evidentiary force of the case as the Government chooses to present it.”).