State of West Virginia v. Richard W. Zimmerman, 16-1066

Petitioner Richard Zimmerman was tried for sexual abuse in the first degree for digitally penetrating a 17‑year‑old overnight guest at his home; he denied the conduct was nonconsensual.
During investigation and trial, Zimmerman sent sexually suggestive text messages to other teenage girls (A.R. and Z.W.), then ages 16, and had a prior domestic battery charge (the latter excluded from 404(b) admission).
The State sought to admit the text‑message evidence under West Virginia Rule of Evidence 404(b) to show Zimmerman's lustful disposition toward children; the defense argued those recipients were over the age of consent and thus the evidence was improper.
The circuit court held an in camera McGinnis hearing, admitted the text messages as 404(b) evidence (with limiting instructions), and found their probative value outweighed prejudicial effect.
At trial Zimmerman was acquitted of second‑degree sexual assault but convicted of first‑degree sexual abuse; he appealed the admission of the 404(b) evidence.
The Supreme Court of Appeals affirmed, applying the LaRock three‑step framework and concluding the court did not err in admitting the evidence for its limited purpose.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of 404(b) evidence of lustful disposition toward children	State: prior texts are admissible to show lustful disposition and are similar to victim	Zimmerman: texts were to persons over the statutory age of consent (16), so they do not show lustful disposition toward children	Court: admission proper — McGinnis/LaRock standards met; probative value > prejudice
Applicability of age‑of‑consent statutory bar to 404(b) evidence	—	Zimmerman: proposes bright‑line rule that only persons under statutory age of consent count as “children” for lustful‑disposition evidence	Court: rejects bright‑line test; follows precedent treating “children” as under age of majority and permits such evidence when analogous
Sufficiency of pretrial 404(b) hearing and limiting instruction	State: court conducted required in camera review and gave limiting instruction	Zimmerman: challenges sufficiency of safeguards	Court: found hearing, limiting instruction, and cross‑examination adequate; no abuse of discretion
Standard of review for admitting 404(b) evidence	—	—	Court applied LaRock: clear‑error on occurrence, de novo on legitimate purpose, abuse of discretion on Rule 403 balancing; evidence upheld

State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994) (procedure for Rule 404(b) in camera hearing and jury limiting instruction)
State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996) (three‑step standard of review for 404(b) evidence)
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990) (allowing collateral acts to show lustful disposition toward children)
State v. McIntosh, 207 W. Va. 561, 534 S.E.2d 757 (2000) (defining scope of “children” in sexual‑offense evidence context)
State v. Robert Scott R., Jr., 233 W. Va. 12, 754 S.E.2d 588 (2014) (treatment of juvenile‑victim evidence and related admissibility principles)
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (trial court evidentiary rulings reviewed for abuse of discretion)
State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986) (in camera hearing guidance for collateral‑act evidence)