West Virginia Supreme Court Permits Evidence of “Remote” Similar Allegations

old dateOne of the more difficult things for victims in criminal litigation to understand is that trials are not opportunities to tell the jury about everything bad that a defendant has ever done.  Trials must focus on proving the current crime or bad act at issue, and evidence is limited to those facts or opinions that are relevant to that crime. The State cannot meet the burden of proof by simply showing that the defendant is an all-around shady character. Instead, the specific elements of the crime must be shown.  In order to prevent trials from becoming mudslinging contests, the West Virginia rules of evidence prevent the state from providing evidence of a defendant’s “prior bad acts” unless they can show that such bad acts are relevant to the current criminal case, and the probative value of such evidence outweighs any prejudicial impact.  A recent case before the West Virginia Supreme Court shows that, in some instances, when prior bad acts are particularly relevant, they may be allowed even if they are from a decade or longe, before the crime was committed.

In State v. Gary A., the Defendant was charged with sexual assault of his seven-year-old niece.  While spending the night at her uncle’s with her two brothers, the Defendant inappropriately touched his niece and forced her to inappropriately touch him.  He was charged and convicted of sexual assault.  At trial, the niece testified, along with her mother and her brother, who were involved in the reporting of the crime.  Additionally, the State of West Virginia called two of the Defendant’s older relatives to testify. They both reported that they had been assaulted in a manner similar to the Defendant’s assault of his niece, when they were younger. After the trial, the Defendant was sentenced to 30 to 90 years in prison. He immediately appealed.

On appeal, the Defendant argued that the testimony of his prior alleged assaults should have been excluded from trial because it was too remote in time to be probative and was overly prejudicial.  Under West Virginia Rule of Evidence 404(b), evidence of prior bad acts is not admissible to prove bad character or actions in conformity therewith.  Instead, it is only admissible to prove relevant elements, such as motive, preparation, plan, or lack of evidence. Here, the trial court allowed the testimony of the prior assaults as relevant evidence to show that he had a “lustful disposition toward children.” In so concluding, the trial court relied on prior caselaw that said that evidence of previous child sexual assaults was admissible for this purpose. The Defendant argued that, although such evidence may sometime be admissible, here the prior assaults occurred almost three decades ago and were much too old to be relevant to the current charges.

The appellate court disagreed. It noted that under Rule 404(b), there is no temporal requirement. Remoteness alone is no basis for excluding evidence at trial.  However, remoteness when combined with a likelihood that the evidence is more prejudicial than probative may be a good reason to keep certain evidence out. While the evidence presented against the Defendant in this case was from quite a long time ago, the appellate court affirmed the trial court’s determination that it was very relevant. Specifically, the testimony was relevant because it was similar in nature to the crime that had been charged. The victims were of similar ages at the time of the assaults, the victims were all female, the victims were all relatives, and the inappropriate touching by the Defendant was very similar in all cases. Accordingly, the appellate court affirmed the trial court’s finding that, although the testimony related to prior bad acts that were remote, the probative value of the testimony outweighed any prejudicial impact.

If you are a defendant facing criminal charges, you must pay careful attention to the possibility that the State will attempt to admit evidence of your prior bad acts in order to make you look bad before a jury. Such evidence is not admissible unless the State can clearly show that it is relevant to the crime committed. However, as this case makes clear, just because the evidence is old or distant in time does not automatically mean it will be excluded. In order to protect your own interests, you must make sure to find a criminal defense attorney who will skillfully argue as to why such evidence is prejudicial and should be excluded. If you or a loved one has been charged with a crime, the West Virginia criminal appeals lawyers at the Wolfe Law Firm can help. Our firm has been serving clients throughout the state for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

Rule 412 Evidence in West Virginia Criminal Cases

Circumstantial Evidence in West Virginia Criminal Cases – United States v. Breckenridge

How Much Evidence is Enough to Prove DUI? West Virginia High Court Weighs In – Reed v. Hill