This еase involves an appeal by Michael O’Dell Dennis (hereinafter referred to as “Appellant”) of his conviction by jury trial in the Circuit Court of Ohio County on August 22, 2002, of the offenses of kidnapping, second degree robbery, two counts of second degree sexual assault, violating a domestic violence protective order and domestic battery. 1 In challenging his convictions, Appellant claims the trial court committed error by: failing to dismiss the sexual assault and robbery charges because any relevant act occurred in Ohio rather than West Virginia; refusing to declare a mistrial when it became known during trial that the mother of one of the jurors formerly worked for the prosecutor and was working for the circuit clerk’s office at the time of trial; not permitting Appellant to offer expert testimony to rebut the state’s evidence about characteristics of battered woman’s syndrome (hereinafter referred to as “BWS”); allowing the introduction of impermissible hearsay evidence through various witnesses who repeated the victim’s statements; allowing admission of testimony of prior crimes, wrongs or acts of Appellant; permitting a nurse to testify as an expert regarding the victim’s injuries; failing to recognize that law enforcement conducted an inadequate investigation; and not taking corrective action to instruct the jury about improper remarks of the prosecutor.
For the reasons set out below, the judgment order is affirmed in part and reversed in part, with the case remanded to the lower court for further proceedings consistent with this opinion.
I. Factual and Procedural Background
Appellant is in his early twenties and is from New Martinsville, located in Wetzel County West Virginia. The accuser or victim in this ease, Raina Sands, is from the New Martinsville-Paden City area and she met and began dating Appellant while she
Explaining how Appellant’s behavior became controlling and possessive in the months prior to the dates in July 2001, Ms. Sands testified about specific incidences where Appellant used force to keep her away from other people. . In order to make her comply with his wishes, Ms. Sands said that Appellant had at one point placed his hand over her mouth and nose so that she could not breathe; other examples included holding her captive in a house and slapping her with his hands and hitting her on the legs with a telephone cord. She also related that after she had terminated her relationship with Appellant in late April 2001, he used force to get into Ms. Sands’ car with Ms. Sands and her male companion, and threatened to stab the companion in the neck with a screwdriver Appellant had located in the car. Ms. Sands obtained domestic violence protective orders in Wetzel County against Appellant. The protective orders did not deter Appellant who went to Ms. Sands’ place of work, Telespectrum, 2 in Wheeling, West Virginia on June 27, 2001, while a protective order was in effect. Ms. Sands said that Appellant lured her to join him outside by informing her that he had their baby and she should come out and say good bye to him. When she realized Appellant was lying, Ms. Sands said she called her grandmother who lived near her in Wetzel County and with whom she had a close relationship. The grandmother thereafter called the police and Appellant was arrested by two Wheeling police officers for violating the protective order then in force. According to Ms. Sands, Appellant employed a similar* ruse to get her to leave work on July 23, 2001.
Ms. Sands testified that on July 23, 2001, she was at her work station at Telespectrum when one of her friends approached her to tell her that Appellant was outside. When she did not go outside to see him, Appellant came into her work area. Ms. Sands said Appellant tried to get her to leave work by telling her he had learned about a court hearing being conducted that morning at which Ms. Sands’ mother was trying to obtain custody of the baby. As Ms. Sаnds was living with her mother at the time and her mother had not told her about such a hearing, Ms. Sands said saw no reason to believe Appellant. A supervisor who testified at trial said that when she asked Appellant to leave he willingly left without incident. According to Ms. Sands, as the supervisor was walking away, Appellant held up his shirt so that Ms. Sands could see he had a gun in the waistband of his pants, and at the same time Appellant informed her that if she did not come outside of the building at her next break then he would be returning to “cause a scene.” Ms. Sands went outside on her next break around noon to find Appellant near* the door with the gun still underneath his shirt. Ms. Sands maintains that she then walked away with Appellant because he said that if she did not he would kill her and then kill himself. When they arrived at a car which Ms. Sands knew belonged to Appellant’s father, Ms. Sands said she tried to turn around and return to work because she knew the father would not knowingly allow Appellant to use the car because the son’s driver’s license had been suspended. In response to her attempts to leave, Ms. Sands contends that Appellant grabbed her, punched the back of her head and held the gun up to the area of her heart. The struggle resulted in Ms. Sands being forced onto the floor of the front passenger seat of the ear.
Although Ms. Sands could not see where they were going, she said that Appellant drove around for a long period of time. It appears that Appellant drоve to Ohio, but it is not entirely clear from Ms. Sands’ testimony whether the first stop Appellant made in Ohio was at Barkcamp State Park (hereinaf
ter
Ms. Sands said that Appellant used her credit card at the BP gas station against her wishes. She further explained that she tried to get out of the car while Appellant was pumping gas, but he grabbed her by her clothes and pulled her back in the car, causing her shirt to stretch out of shape and the strap of her bra to break. The damage done to the clothing required Ms. Sands to put on a different shirt that was in the car.
According to Ms. Sands, Barkeamp is where she was raped by Appellant. Ms. Sands testified that when she got out of the ear at Barkeamp Appellant pushed her towards the woods, forcing her to walk in the underbrush rather than on a nearby path. As related by Ms. Sands, Appellant told her he did not want her to walk on the path because he wanted her to “suffer like he had to suffer, because he used to hide in thе woods whenever the police were looking for him” for violating a protective order she had obtained against him. Ms. Sands explained that they argued as they walked until they came up to a fallen tree, and then Appellant pushed her down over the tree where he raped her vaginally and anally. Ms. Sands was then forced by Appellant to walk through the underbrush on the return trip to the car.
Ms. Sands related that the next stop was at a Subway shop where Appellant purchased a sandwich. 4 According to Ms. Sands, she stayed in the car while Appellant went into the Subway, and she did not attempt to leave the car or run away. Thereafter, Appellant drove to Senecaville Lake, 5 where the couple fed bread from the sandwich purchased at Subway to the ducks. Ms. Sands said that when they left the lake she did not see where they were driving because Appellant made her keep her head down until the next stop at Wolf Run State Park (hereinafter referred to as “Wolf Run”) near Caldwell, Ohio. 6 According to a Wolf Run ranger, Appellant parked his ear at the far end of the parking lot near the ranger station and walked to the station to get information about the park facilities. Appellant then returned to the car and, as Ms. Sands explained, Appellant drove to Hannibal, Ohio, where they parked in a “wide spot” and stayed the night in the car. 7 On cross examination Ms. Sands stated that she and Appеllant did not engage in sex during this stop.
The next day, July 24, 2001, Appellant drove to a Chevron gas station in Hannibal where Ms. Sands testified he again used her credit card without her permission. Ms. Sand’s said that while Appellant was removing the credit card from her purse he found a picture of one of her male friends. Ms. Sands testified that this discovery caused Appellant to question her about the type of relationship she had with the man; during the questioning Ms. Sands said Appellant hit her repeatedly on the arm, leg and head. After completing the gas purchase, Appellant drove southward from Hannibal. He next stopped at a rest area where he allowed Ms. Sands to call her grandmother. Ms. Sands testified that during this phone call she asked, “how my Aunt Roxie was doing.” and that this statement was a signal she had developed with the grandmother as a way to let the grandmother know Ms. Sands was in
Appellant explains events quite differently. Appellant maintains that while their relationship was somewhat strained, he and Ms. Sands had an on-going relationship and were seeing each other on a regular basis primarily because of their child. He essentially argues that Ms. Sands made up various portions of her story of what occurred on July 23 and 24, 2001, because she had discovered him in bed with another woman. According to Appellant, the events unfolded in the following way.
Appellant said that he and Ms. Sands had gone to a tavern in New Martinsville on July 22, 2001, where Appellant played pool and Ms. Sands spoke to mutual friends about marrying Appellant. According to Appellant, the couple had a celebration on the twenty-second day of each month to commemorate the anniversary of their meeting. Appellant further claims that Ms. Sands spent the night of July 22, 2001, with him at his father’s house in New Martinsville where Appellant was residing. The next morning Appellant said Ms. Sands returned to her mother’s home, from which Ms. Sands’ grandmother picked Ms. Sands up and drove her to work in Wheeling.
After leaving Telespeetrum, Appellant said that he walked around Wheeling until near noon at which time he returned to Telespect-rum to meet Ms. Sands and take her to lunch. When he arrived outside Telespect-rum, he visited with employees who were on their break until Ms. Sands appeared. Appellant said that Ms. Sands’ testimony was incorrect in that he was not waiting outside of the door at Telespeetrum and that in actuality he waved at Ms. Sands when she exited the building and motioned for her to join him. Appellant also contradicted Ms. Sands’ testimony about .him forcing her to immediately leave the area when she emerged from the building, contending instead that they sat and talked before going to the car. A Telespeetrum employee testified that she saw Appellant and Ms. Sands that day talking outside Telespeetrum during the time it took the worker to make two trips to unload her car. This same witness also said that Appellant walked in front of Ms. Sands when they left the area; another eyewitness testified that Appellant crossed the street ahead of and separately from Ms. Sands.
Appellant said Ms. Sands voluntarily accompanied him to the car and they drove directly to Applebee’s where he saw a police officer who had arrested him previously for violating a protective order. The policeman testified that he might have been to Apple-bee’s that day and he did not recall ever seeing Appellant at the restaurant. Appellant related that after lunch he drove Ms. Sands to a Kaufmann’s department store where she bought him a tee shirt and shorts, all of which Ms. Sands had previously testified had not occurred on the day in question. From Kaufmann’s the couple drove to Bark-camp, where, according to Appellant’s testimony, they changed into bathing suits and went swimming and sat at a picnic area where Ms. Sands carved “I love Michael” into a picnic table. 13 Appellant denied engaging in sex with Ms. Sands by any means while at Barkcamp that day. After leaving Barkcamp, Appellant said they stopped at a BP gas station nearby, and Ms. Sands’ consented to placing the gasoline purchase on her credit card. Appellant denied that Ms. Sands tried to exit the ear at the gas station or that he used force or ripped her clothing during that stop.
Appellant testified that the next stops made were at Seneeaville Lake and then Wolf Run. At some point around this time, Appellant said the couple stopped at a Subway shop where Ms. Sands went in to buy a
Appellant said he left the station and sat in the car for a few minutes before driving away. Shortly thereafter Appellant was pulled over by the police and arrested. Ms. Sands was taken to the hospital in Marietta where she received a full medical examination, during which a rape kit was completed.
Appellant was indicted in Ohio County in September 2001 on the charges of kidnapping,
15
first degree robbery,
16
two counts of
II. Standards of Review
Our common approach in reviewing challenges to criminal convictions is dependent upon whether the particular challenge involves determinations involving the law, the facts or a mixture of the two. Issues raised regarding questions of law are reviewed de novo. Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L.,
We pause briefly to note that there may be more specific standards of review for the diverse principles of law applicable to the numerous errors Appellant maintains were committed by the court below. In those instances where further standards are applicable, they will be incorporated within the discussion of the relevant issue.
III. Discussion
A. Venue/Jurisdietion
This case involves an examination of the fine but critical distinction between venue and jurisdiction, which is rather obscured by the proceedings below and which is made somewhat more difficult, as the lower court observed, because our law is not well defined as to the differences between and the treatment of the two concepts.
To be clear, the venue/jurisdiction concern only applies to the sexual assault and robbery convictions. The kidnapping, protective order violation and domestic battery convictions are in no way implicated in this discussion. Appellant’s assertion in this regard is that the trial court committed error by not granting his motion for acquittal on the second degree sexual assault
22
and robbery
23
1. Distinction between Venue and Jurisdiction
The arguments of the parties and the law proffered in support of their respective positions refer interchangeably to venue or jurisdiction. Although at times related, these terms are hardly synonymous. In the context of a criminal ease, jurisdiction involves the inherent power of a the court to decide a criminal case, whereas venue relates to the particular county or city in which a court with jurisdiction may hear and determine a ease. Syl. Pt. 7,
Lester v. Rose,
Appellant’s basic contention is that West Virginia has no authority or power to prosecute or punish the offenses of robbery and sexual assault in this case because all of the elements of the offenses occurred, if at all, in the state of Ohio. This claim raises a territorial challenge to the jurisdiction of
any
court in West Virginia hearing and deciding the case rather than a venue-based objection regarding
which
West Virginia court in what particular locality within the state should handle the matter. Even if jurisdiction was not artfully defined as an issue on appeal, “[l]aek of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion.” Syl. Pt. 3,
Charleston Apartments Corp. v. Appalachian Elec. Power Co.,
To support his claim that any trial against him for these offenses may only be had in Ohio, Appellant points to Rule 18 of the West Virginia Rules of Criminal Procedure
24
and
The jurisdictional as well as venue implications of this constitutional provision were recognized early in the jurisprudence of this state in the ease of
Ex parte McNeely,
It may be said with some plausibility that the constitutional provision applies only where both blow and death occur within the State, and only selects what county shall hold the trial; and that it does not apply where part of the offense is outside the State. But I regard it a question of jurisdiction arising under the constitution; and that nowhere in the State can trial be had except in that county where the of-fence is committed, and if not еnough of the act occurred in the county of death to enable us to say that the offence was committed there, then it has no jurisdiction, nor has any county of the State; for I construe the clause as meant to be coextensive with all criminal acts justiciable under the power of the State.
The question McNeely leaves for us to answer in the case before us is: What constitutes “how much of an act” which must occur in West Virginia for this state to have territorial jurisdiction, that is, to assert its sovereign authority to hear and decide a criminal charge under the state’s penal laws? The lower court addressed this question, although using a somewhat different phraseology. As a preface to denying Appellant’s motion for acquittal based on the territorial challenge which was raised at the close of the state’s case in chief, the lower court said: “So the question is, as a practical matter, where is this ease to be tried in a sense of fairness to everybody?” The lower court explained its reasoning for denying the motion as follows:
[Tjhere is a certain, I think, logic to taking the initial act, which is grounded in force and threats and intimidation, and then follow that through and, insofar as the evidence most favorable to the State at this point, you have nothing more than acts that build upon that threat and force and intimidation; robbery in the first degree and sexual assault in the second degree.
I could see an argument that conceivably could be made, that if you had an act outside the State of West Virginia that was charged, that has absolutely nothing to do with the force and threat or intimidation, that an argument could be made that venue would not be proper on that offense in Ohio County, West Virginia.
But — even though we don’t have— there’s not a lot of good law in West Virginia to guide us, it just — I think fundamental fairness on both sides and common sense would require a finding, that when an offense begins in Ohio County, West Virginia that is related to an act of violence or force, anything that flows from that, no matter where it would be, the venue would be proper in West Virginia — Ohio County, West Virginia.
The state maintains that support for the lower court’s conclusion is found in the United States Supreme Court case of
United States v. Rodriguez-Moreno,
Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years ....”
Id.
at 279,
Congress proscribed both the use of the firearm and the commission of acts that constitute a violent crime. It does not matter that respondent used the .357 magnum revolver, as the Government concedes, only in Maryland because he did so “during and in relation to” a kidnaping that was begun in Texas and continued in New York, New Jersey, and Maryland.
Although the lower court concluded otherwise, the same bootstrap technique is clearly
2. Continuing Crimes
As we observed earlier in this opinion, under the general premise of the common law a crime is committed in just one place so only the government of that single place would have jurisdiction to prosecute and punish the crime. Exceptions were made at common law to this single situs rule for offenses characterized as “continuing” such as kidnapping and larceny. 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 16.1(d) (2d ed., West 1999). A continuing offense is a crime considered as transitory, on-going, or capable of repetition or continuation and as such is considered committed, and subject to prosecution, at any place where the crime was initiated, continued or completed. Id.
Several states
29
have found sexual assault in the second degree, commonly referred to as forcible rape, to be a continuing offense in circumstances such as the case before us. On a whole these courts have concluded that when the elements of an offense occur sequentially, are repeated or continue over a limited span of time or constitute a single chain of events, then the offense is a continuing crime by which venue lies both in the place where the defendant caused the victim to be fearful through use of force or threats of force and the place where the defendant engaged in the prohibited sexual act.
See Spoonmore v. State,
West Virginia Code § 61-11-12 (1969) (Repl.Vol.2000), which addresses where a crime committed in more than one county within the state may be tried, impliedly establishes a much broader category of continuing offenses than those identified as such at common law. This statute provides:
When an offense is committed partly in one county and partly in one or more other counties within this State, it may be alleged that the offense was committed and the accused may be tried in any one county in which any substantial element of the offense occurred.
Although this multi-venue statute is limited by its terms to actions occurring within the state, we find its underlying theory compatible with resolving jurisdictional questions arising from situations where substantial elements of an offense are committed partly within West Virginia and partly within another state or states. A significant reason for reaching this conclusion is perhaps the most obvious: to provide no incentive for criminals
Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting ... [the accused] within its power.... [T]he criminal need not do within the State every act necessary to complete the crime. If he does there an overt act which is and is intended to be a material step toward accomplishing the crime, and then absents himself from the State and does the rest elsewhere, he becomes a fugitive from justice....
Id.
at 285,
3. Role of Jury
When subsequently submitted to the jury, the lower court’s relevant instruction treated the matter as one of venue, adhering to the standards set forth in syllabus point five of
State v. Burton,
You are instructed that venue is a jurisdictional element of proof in a criminal trial. The State is permitted to prove venue by circumstantial evidence. The State need only prove venue by a preponderance of the evidence and is not required to prove venue beyond a reasonable doubt.
A trial may be held and venue may be established in аny jurisdiction in which a substantial element of the offense occurred.
Since we have defined the issue as territorial jurisdiction rather than venue, in order to determine the adequacy of the lower court’s instruction we now must consider whether the judge or jury should ultimately resolve the question of territorial jurisdiction and by what measure of proof.
Jurisdiction is generally a question of law for the court to decide. However, our earlier finding in this opinion — that a challenge raised to territorial jurisdiction under these circumstances requires a finding that at least one substantial element of the crime has been committed in West Virginia — presents a question of fact which is traditionally left to the jury to decide. Syl. Pt. 2,
State v. Bailey,
A considerable number of states require jurisdictional facts must be proven beyond a reasonable doubt. 30 The predominant reasons for that conclusion has been summarized by one recognized authority in the following way:
Use of the beyond a reasonable doubt standard [in resolving disputed jurisdictional facts] minimizes the possibility that a defendant will be tried in one state for a crime actually committed elsewhere. Moreover, it makes it more likely that other states will afford full faith and credit to decisions regarding criminal jurisdiction, even though they are not constitutionally required to do so. There is also the practical consideration that using a lesser standard for a portion of the prosecution’s case and the beyond a reasonable doubt standard for the rest would doubtless create confusion in the minds of the jurors.
1 Wayne R. LaFave & Austin W. Scott,
Substantive Criminal Law
§ 2.7(b) at 163 (West 1986) (footnotes omitted). The profound intertwining of the jurisdictional facts with the merits of the case in these instances leads us to conclude that proof of the existence of territorial jurisdiction is the same as that required to prove the elements of the crime — proof beyond a reasonable doubt. Syl. Pt. 4,
State v. Pendry,
In consideration of the foregoing we conclude that the judge and jury share responsibility for the ultimate determination of territorial jurisdiction in a criminal case involving controverted jurisdictional facts. The court must first determine as a matter of law whether the elemental act or consequence at the heart of the disputed evidence would be sufficient to establish jurisdiction if it occurred within the state. If sufficiency is
The state argues that the evidence in this case conclusively proved that West Virginia had territorial jurisdiction of the offenses of sexual assault and robbery and the convictions should be upheld. The state specifically contends that forcible compulsion, as a material element of sexual assault, and the threat of deadly force, 33 as a material element of robbery, occurred in West Virginia when the gun was displayed to the victim and she was kidnapped. We fail to find from our review of the evidence that only one possible conclusion can be reached.
While the evidence does establish that Ms. Sands was kidnapped from West Virginia and transported to Ohio, it is not clear that the abduction occurred as a result of “force” or “threat” rather than “fraud or enticement.” W.Va.Code § 61-2-14(a). For example, evidence that the historic relationship of the parties included violence and that a BB gun resembling a conventional handgun was found in the car could lead a jury to conclude that force was used to abduct Ms. Sands. However, the evidence that previous lunch plans had been made and that Appellant wanted to talk with Ms. Sands about court action being taken regarding the couple’s child might have been viewed by the jury as a means by which Ms. Sands was enticed to leave the state with Appellant. A jury could also have found that tensions escalated and the fear necessary to return guilty verdicts for the rape and robbery crimes dеveloped in Ohio during the five hours the couple were driving after the abduction from West Virginia and the first stop in Ohio. Based upon our holding regarding disputed evidence, resolution of whether the element of fear or other essential element of second degree sexual assault or second degree robbery occurred in West Virginia was for the jury to decide beyond a reasonable doubt. The lower court failed to take into account the dispute in the evidence and thus committed an error of law by not instructing the jury of its responsibility to determine, beyond a reasonable doubt, whether any element of the crimes of sexual assault and robbery occurred in West Virginia so as to establish territorial jurisdiction. Accordingly, the sexual assault and robbery convictions must be set aside.
B. Removal of Juror
Appellant next assigns error to the lower court’s refusal to grant a mistrial when it was learned during the course of the trial that one of the jurors was the daughter of a woman who had been a secretary in the prosecutor’s office and was working in the circuit clerk’s office at the time of trial.
In
West Virginia Human Rights Commission v. Tenpin Lounge,
Just as the trial court has discretion over voir dire examination, so should it have discretion on the question of whether a new trial should be granted because offalse answers given by a prospective juror on such examination. In the exercise of its discretion in the latter instance a trial court should, when requested, permit interrogation of the prospective juror to determine the truth or falsity of such answers and the relevancy thereof to the case under consideration.
Id.
at 358,
first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.
Id.
at 556,
In the present case, the trial court expressed great concern with the discovery and proceeded to conduct the necessary hearing sua sponte. The hearing did not reveal any intent on the part of the juror to withhold information regarding her mother’s employment; the record demonstrates that the juror simply misunderstood the voir dire question. Appellant’s counsel did not question the juror during the hearing and did not demonstrate how a correct response by the juror would have provided a valid basis to sustain a challenge for cause or show that the juror was actually biased. In essence, there was no showing of prejudice or other basis for the lower court to find that injustice would result from the jurоr’s continued participation on the panel. We find the trial court properly employed its discretion by refusing to grant a mistrial.
C. Exclusion of Expert Witness on Battered Woman’s Syndrome
Appellant asserts that the trial court's failure to allow introduction of expert testimony to rebut the state’s evidence about BWS is reversible error warranting that the verdict be set aside and a new trial granted. The hurdle Appellant must overcome to establish such error is fairly high as “[t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court’s decision will not be reversed unless clearly wrong.” Syl. Pt. 6,
Helmick v. Potomac Edison Co.,
The trial court made pre-trial rulings about the use of BWS experts, concluding that unless the state offered evidence regarding BWS then no expert testimony about the issue would be permitted. The state reserved the right to call such an expert, but elected not to do so during trial. Appellant’s claim is that even though the state did not call the expert at trial, the state elicited testimony which used terms and concepts commonly associated with BWS which should have served to “open the door” for Appellant’s expert to testify. The record shows that no testimony or other evidence was introduced during the trial which established a connection between the questioned terms or concepts and BWS, so we fail to see how the testimony was relevant and would serve to “assist the trier of fact to understand the evidence.” W.Va. R. of Evid. 702.
See Gil-man v. Choi,
D. Repetition of Victim’s Statements as Impermissible Hearsay
Next Appellant maintains that the trial court incorrectly allowed the state’s witnesses to repeat the victim’s statement resulting in bias and prejudice. Our standard of review regarding a circuit court’s decision to admit or exclude evidence was summarized in
State v. Guthrie,
As to the hearsay concerns Appellant raises, we held in syllabus point one of
State v. Maynard,
Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party’s action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules.
Before applying these standards, we initially observe that Appellant’s claim involves the testimony of seven of the state’s witnesses. We further note that Appellant failed to object when three of the witnesses testifiеd. Errors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court'had objection been raised there. Syl. Pt. 17,
State v. Thomas,
The lower court allowed the admission of the hearsay testimony of the gas station mechanic under the excited utterance exception to the rule against the admission of hearsay, 34 and allowed the testimony of the Wheeling detective to be admitted because the victim’s out-of-court statement was not offered for the truth of the matter asserted, but rather to explain the actions taken by the officer after the statement was made to him. We find no abuse of discretion as to admission of this evidence. The gas station mechanic’s testimony, prior to relating any hearsay statements, described the victim when she entered the gas station as “hysterical, screaming. She was crying. Sweat was running off her where you could just tell she was upset, and she just — like I said, hysterical.” This was a sufficient foundation from which the trial court could conclude that the out-of-court statement of the victim which the mechanic thereafter related was an excited utterance. As to the officer’s testimony, the victim’s statements involving her rape helped explain why the detective went to Barkcamp and collected evidence there. Moreover, the record shows that the jury was instructed as to the limited purpose of the recitation of the out-of-court statements.
E. Evidence of Other Crimes, Wrongs or Acts
The trial court’s decision to allow evidence involving “prior bad acts” of Appellant is also challenged in this appeal. W.Va. Rules of Evidence 404(b).
35
Appellant claims
The trial court characterized the challenged evidence “[a]s part of the fabric of the underlying charge,” outside the customary Rule 404(b) procedure and analysis, making it unnecessary to conduct an in camera hearing as set forth in
State v. McGinnis,
THE COURT: I’m going to hold that we do not need a McGinnis hearing, and all those [incidents] are admissible 36 -because they basically are all part of the overall relationship between this gentleman and the defendant (sic).
Our first consideration thus becomes whether the trial court properly determined that the evidence was res gestae. “Events, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered
res gestae
and admissible at trial.” Syl. Pt. 3,
State v. Ferguson,
In determining whether the admissibility of evidence of “other bad acts” is governed by Rule 404(b), we first must determine if the evidence is “intrinsic” or “extrinsic.” See United States v. Williams,900 F.2d 823 , 825 (5th Cir.1990): “ ‘Other act’ evidenсe is ‘intrinsic’ when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” (Citations omitted). If the proffer fits in to the “intrinsic” category, evidence of other crimes should not be suppressed when those facts come in as res gestae — as part and parcel of the proof charged in the indictment. See United States v. Masters,622 F.2d 83 , 86 (4th Cir.1980) (stating evidence is admissible when it provides the context of the crime, “is necessary to a ‘full presentation’ of the ease, or is ... appropriate in order ‘to complete the story of the crime on trial by proving its immediate context or the “res gestae” ” ’). (Citations omitted).... [E]videnee admissible for one of the purposes specified in Rule 404(b) and res gestae not always is separated by a bright line. See United States v. Cook, 745F.2d 1311, 1317-18 (10th Cir.1984), cert. denied, 469 U.S. 1220 ,105 S.Ct. 1205 ,84 L.Ed.2d 347 (1985).
LaRock,
The evidence contested by Appellant is the testimony of the victim, the victim’s grandmother and two Wheeling law enforcement officers. The victim’s testimony related various incidents occurring in the three months preceding the events occurring on July 23 and 24, 2001, for which Appellant was indicted. These incidents were used to demonstrate Appellant’s pattern of abusive and controlling behavior as a means of defining the turbulent nature of the relationship the victim had with Appellant after she attempted to break off the relationship with Appellant in late April 2001. The testimony of the grandmother and law enforcement officer’s related the events of June 27, 2001, which bore a striking similarity to the July episode and resulted in the arrest of Appellant for violation of a domestic violence protective order. After carefully reviewing the record, we cannot say that the trial court abused its discretion in finding that the prior acts constituted intrinsic* evidence, not subject to Rule 404(b) analysis. While the acts were not part of a “single criminal episode” or “necessary preliminaries” to the charged offenses, it is difficult to conclude that the evidence was not necessary “to complete the story of the crimes on trial” or otherwise provide context to the crimes charged. Id. This is especially true in light of the domestic violence overlay to the pattern of behavior. Even if we were to conclude that the trial court erred in finding the prior act evidence to be res gestae, we believe the evidence would still be admissible under Rule 404(b). The incidents from Appellant’s recent past would have satisfied a number of acceptable purposes set forth in Rule 404(b), including proving motive, opportunity and knowledge. In either case, it seems doubtful that this case could have been appropriately presented without such background information. Finding that the lower court did not act in an arbitrary or irrational manner or otherwise abuse its discretion, we find no error.
Our review of the remaining errors — allowing a nurse to testify as an expert regarding the victim’s injuries, providing no remedy for an inadequate police investigation, and failing to instruct the jury to disregard prejudicial statements of the prosecutor during closing argument — results in our finding all to be without merit. 37
IV. Conclusion
In sum, we affirm the judgment of conviction for all crimes except sexual assault and robbery and we remand for a new trial on these latter charges. If state territorial jurisdiction is placed into issue and conflicting facts are again presented during the new trial, the jury should be instructed that jurisdiction to hear and decide the case rests on the existence of evidence beyond a reasonable doubt that an essential element of the particular crime was committed within the state of West Virginia; therefore, a verdict of guilty can only be returned if the jury finds that some element of each of the herein determined continuing offenses occurred in West Virginia. Accordingly, the August 22, 2002, order of the Circuit Court of Ohio County is reversed in part and affirmed in part, and remanded for further proceedings.
Notes
. The October 28, 2002, sentencing order shows that Appellant received a life sentence with mercy for kidnapping, a five-to-eighteen-year sentence for second degree robbery, a ten to twenty-five year sentence for each second degree sexual assault conviction, a one year sentence for violation of a protеctive order and a one year sentence for domestic battery. The kidnapping and sexual assault sentences were ordered to run consecutively and the remaining sentences to run concurrently with the kidnapping and sexual assault sentences.
. Appellant also worked at Telespectrum but was placed on a different schedule from Ms. Sands’ when she obtained protective orders against him.
. Barkeamp is located in Ohio, roughly thirty miles west of Wheeling, West Virginia, off of Interstate 70.
. The location of the Subway store is not revealed in the record.
. We take judicial notice that Senecaville Lake is situated south of Cambridge, Ohio, off of Interstate 77.
. Wolf Run Stale Park is located south of Sene-caville Lake.
. According to Ms. Sands' story, it appears that Appellant left the Interstate and took secondary roads to Hannibal, Ohio since Hannibal is located on Ohio Route 7, roughly fifty miles east of Interstate 77 and Wolf Run.
. The grandmother confirmed during her testimony at trial that such a signal or code had been developed between her and Ms. Sands.
. During her testimony at trial, the grandmother said that she had received three calls from her granddaughter on July 24, 2001: two from unidentified locations and the third from a gas station in Marietta. The grandmother said that she obtained the number where the calls originated by dialing " * " 69 and then relayed the phone numbers to the Wheeling Police Department. The grandmother’s testimony about the substance of the first two phone calls generally corroborated Ms. Sands’ narrative.
. Although not clear from the record, Appellant’s brief fixes the location of the Applebee's at St. Clairsville, Ohio, which is within fifteen miles west of Wheeling by way of Interstate 70.
. During her testimony, Ms. Sands’ mother denied that such a conversation occurred; Ms. Sands also testified that her mother did not take such court action.
. A BB gun was entered into evidence at trial through the testimony of a Marietta police office who said the gun bore a striking resemblance to a particular type of conventional handgun.
. Swimwear was not among the various articles of clothing taken from the car and admitted into evidence; a picture of a picnic table with the referenced inscription was admitted into evidence.
.Appellant was under the incorrect assumption that a protective order was not effective across state lines and that he would not be arrested for violating the order if he was with Ms. Sands in Ohio.
. See W.Va.Code § 61-2-14a (1999) (Repl.Vol. 2000).
. See W.Va.Code § 61-2-12(a) (2000) (Repl.Vol. 2000).
. See W.Va.Code § 61-8B-4(a)(l) (1991) (Repl. Vol.2000).
. See W.Va.Code § 61-2-14 (1984) (Repl.Vol. 2000).
. The indictment cited to West Virginia Code § 48-2A-10d, however, due to the legislative re-codification of the chapter in 2001, the offense of violating a protective order is found at West Virginia Code § 48-27-903 (2001) (Repl.Vol. 2001). It is actually the latter statutory provision which was in effect at the time the protective order in this case was allegedly violated because the 2001 amendments took effect on April 14, 2001. The changes made in the law in 2001 did not substantively affect the established offenses or penalties.
. See W.Va.Code § 61-2-28(a) (2001) (2003 Supp.).
. Appellant was indicted for first degree robbery, but the jury returned a verdict of guilty of robbery in the second degree (W.Va.Code § 61— 2-12(b)).
. West Virginia Code § 61-8B-4(a), defines a second-degree sexual assault offense as:
(a) A person is guilty of sexual assault in the second degree when:
(1) Such person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion; or
(2) Such person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.
. West Virginia Code § 61-2-12, addresses the offense of robbery as follows:
(a) Any person who commits or attempts to commit robbery by: (1) Committing violence to the person, including, but not limited to, partial strangulation or suffocation or by striking or beating; or (2) uses the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years.
(b) Any person who commits or attempts to commit robbery by placing the victim in fear of bodily injury by means other than those set forth in subsection (a) of this section or any person who commits or attempts to commit robbery by the use of any means designed to temporarily disable the victim, including, but not limited to, the use of a disabling chemiсal substance or an electronic shock device, is guilty of robbery in the second degree and, upon conviction thereof, shall be confined in a correctional facility for not less than five years nor more than eighteen years.
As this statutory provision does not fully define the offense of robbery, we adhere to the common law definition of the crime: "The felonious taking of money or goods of value from the person of another or in his presence, against his will, by force or putting him in fear.”
State v. Young,
. Rule 18 appears in the venue section of the West Virginia Rules of Criminal Procedure and states: "Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a county in which the offense was committed.”
, The offense occurred in what is now Mingo County, which was carved from Logan County in 1895.
. The relevant part of the statute at issue in McNeely read:
[i]f a person be stricken or poisoned out of this state, and die by reason thereof within this state, the offender shall be as guilty, and may be prosecuted and punished [in West Virginia], as if the mortal stroke had been given, or poison administered, in the county in which the person so stricken or poisoned may so die.
Although slightly modified, this statute now appears in the West Virginia Code at § 61-2-6.
.As summarized by one authority, ”[a]t common law (that is, in the absence of statute) jurisdiction over crimes is [generally] limited ... by the notion that each crime has only one situs (or locus), and that only the place of the situs has jurisdiction. In other words, the common law picked out one particular act (or omission) or result of the act (or omission) as vital for the determination of the place of commission ... of each of the various crimes ... [as the means of ascribing] jurisdiction to that state (and only that state) where the vital act or result occurred.” 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.9(a) at 180 (West 1986).
. 18 U.S.C. § 924(c)(1)(A).
. "A substantial majority of the states today have statutes that adopt an interpretation of the territorial principle substantially more expansive than the traditional common law position.” 4 LaFave, Criminal Procedure § 16.4(c) at 579.
.
See Mayhall v. State,
. To be clear, our holding does not establish jurisdiction as a substantive element of the crime which the state must prove in every case. In most cases, the power of the state to enforce its penal laws is not at issue and territorial jurisdiction is presumed.
. See Syl. Pt. 5,
State ex rel. Hammond v. Wor-rell,
.As the jury returned a verdict of guilty of the lesser offense of second degree robbery rather than the charged first degree robbery, it appears that they concluded that the threat of deadly force wаs not present. W.Va.Code § 61-2-12, supra n. 23.
. See W.Va. R. Evid. 803(2).
. Rule 404(b) of the West Virginia Rules of Evidence (1994) states:
Other crimes, wrongs or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
. At a status conference held on February 7, 2002, the state enumerated the following prior acts which it intended to introduce into evidence at trial to establish a history of abusive, harassing and controlling conduct by the accused toward the victim: on January 16, 2000, the accused struck the victim in the stomach, grabbed her arm and head while verbally threatening and abusing her; the accused held his hand over the victim’s mouth and nose on April 28, 2001; on April 29, 2001, the accused struck the victim with a telephone cord and held her down on a bed and struck her legs; on May 17, 2001, the defendant stopped the victim’s motor vehicle, obtained her keys and then drove her around in the vehicle for two hours without permitting hеr to leave; existence of protective orders from Wetzel County with evidence of violation of an order in effect on June 27, 2001 when accused approached the victim while on a break from work in Wheeling. Only the April, May and June occurrences were introduced at trial through the testimony of the victim and a law enforcement officer.
. As to the nurse witness, Appellant failed to preserve this objection at trial and he adopted the witness as his own expert. "[Ejrrors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. Pt. 17,
State v. Thomas,