State of West Virginia v. Larry A. H., 742 S.E.2d 125

Mercer County grand jury indicted Mr. H. on 30 counts of sexual assault against his daughter, covering 2001–2003.
Trial began August 31, 2004; four witnesses testified for State: two doctors, a play therapist, and the victim.
Defense called three witnesses, including a DHHR worker and two siblings; one sibling denied touching the other.
Jury verdict on September 1, 2004 found Mr. H. guilty on 17 counts; remaining charges were dismissed.
Appeal filed after resentencing in August 2011; issues raised were indictment amendment, undisclosed witness, and recall of witness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the indictment could be amended	Indictment amendment clarifies time; not substantial.	Amendment prejudiced defense by changing time element.	No abuse of discretion; no prejudice.
Whether calling a witness not on the list was error	Late disclosure did not prejudice preparation.	Late disclosure prejudiced defense.	No prejudice; call allowed under Rusen/Huffman/Wilson framework.
Whether recalling a witness was proper to challenge	Recall allowed to address trial issues.	Issue not preserved; recall improper.	Issue not preserved; not considered.

State v. Adams, 193 W. Va. 277, 456 S.E.2d 4 (1995) (affirmative authority on indictments may be amended if not substantial; no prejudice)
State v. Chaffin, 156 W. Va. 264, 192 S.E.2d 728 (1972) (time not of essence for certain crimes; variance not prejudicial)
State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994) (two-pronged prejudice standard for discovery violations)
State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955) (standard for admission/ exclusion of evidence under discretion)
State v. Wilson, 226 W. Va. 529, 703 S.E.2d 301 (2010) (knowledge of late-disclosed witnesses weighs against prejudice)
State v. Ward, 168 W. Va. 385, 284 S.E.2d 881 (1981) (late disclosure not reversible error absent prejudice)
State v. James B., Sr., 204 W. Va. 48, 511 S.E.2d 459 (1998) (substantive substance of prior statements not hampered by late witness)
State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006) (Crawford confrontation rule; non-retroactive rule context noted)
State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (2011) (briefing requirements; preservation rules clarified)
Covington v. Smith, 213 W. Va. 309, 582 S.E.2d 756 (2003) (caselaw on raising issues by casual mention in briefs)
State v. Kennedy, 229 W. Va. 756, 735 S.E.2d 905 (2012) (Mechling non-retroactivity context referenced)