*1 only living the time his estate sisters death, expressed it.5 of his he should have drafted, however, require did not The will
survivorship; nor did it include an alternate expressed any which
distribution intent predeceased
exclude descendants benefi-
ciary. upon interpreta Premised the broad statute, antilapse presumption
tion of workings testator was aware of the antilapse
of the will was statute when the
written, necessity and un for clear
ambiguous assertion of an intent in alternate statute, antilapse defeat
order to we find antilapse applies and that statute Mary
the one-third share which Mrs. Har
math Kish would have been entitled shall pass providing to her issue. distribu for estate, phrase
tion of an utilization of the “to express any person exclusion of other
persons,” in the absence of and un clear expression equivocal intent for alter distribution, negate
nate insufficient to statute,
operation antilapse West Vir §
ginia consequently Code 41-3-3. We re
verse the determination of the lower court entry this of an remand matter opinion. in accord with
order
Reversed Remanded with Directions. Virginia,
STATE West Plaintiff Below, Appellee, GRAHAM, Lee
Richard Defendant
Below, Appellant.
No. 27459.
Supreme Appeals of Court of Virginia.
West Sept.
Submitted 2000.
Decided Nov. 2000.
Concurring Opinion of Justice
Starcher Jan. Estate, Eq. living re 5. As in In Smith’s it is 97 N.J. sisters as aforesaid should not be then " (1925), my my hereby give provided, A. 218 the will ‘in could have will and I do the whole of ” my my surviving.’ the time of case at decease either of estate to the Id. one
465
I.
FACTS A thumbnail facts is sketch the relevant trial, eleven-year-old as follows. At A.W. 27, 1998, that on March had testified walking school disembarked the bus and was long way hilltop drive to her house when neighbor, twenty-two-year-old her Richard Graham,3 behind, grabbed Lee her him, pushed against but- her rubbed her penis through tocks with his erect their *4 screamed, loose, clothing. and A.W. broke ran home. The toward defendant retreated his house at the bottom of the hill. The mother, G., Yvette testified concern- ing following the events includ- incident ing daughter’s her fear of men as a result of officer, investigating the attack. The Detec- Sergeant Bailey tive Darrell of the Mercer County Department, that Sheriffs testified degree the defendant was of first convicted sexual abuse for an in 1994 in which incident breasts, maybe he fondled and kissed the and area, vaginal 11-year-old girl.4 of another testimony The defendant of his offered the McGraw, Jr., General, Attorney younger Darrell V. brother and mother that he had II, Loughry, Attorney H. Assistant Allen been home when the incident occurred. General, Charleston, Appellee. for the family of Several friends cor- testimony roborated this or rebutted the vic- Czamik, R. R. Thomas Thomas Czarnik & testimony concerning tim’s what the defen- Associates, Princeton, Appellant. for the wearing day dant was on of the attack. Upon his conviction for sexual in abuse MAYNARD, Chief Justice. degree, first the defendant was sentenced to below, appellant, years penitentiary. The defendant Richard one to five in the The Graham, charged suspended, Lee was with sexual abuse sentence was and the defendant A.W.,1 degree eleven-year- placed probation of period the first on for a of five female, § years old in violation of 61- with conditions that W.Va.Code he serve nine- (1984).2 and, Following jury ty days Regional trial on 8B-7 De- the Southern Jail jail, upon placed 1998 the release from in a cember Circuit Court Mer- be residen- County, guilty. cer the defendant was found tial treatment center for the treatment of his Court, assigns appeal to this he several “mental and sexual and that On deviations he seeking placement of his errors reversal conviction. remain such until it is deter- follow, society.” that affirm. that can For the reasons we mined he return to practice involving person years 1. Consistent with our in cases er to sexual contact who is eleven matters, we use the victim’s sensitive initials. old or less.” L., See State v. Edward Charles 183 W.Va. 645 n. 127 n. 1 mentally 3. The defendant is retarded and lives siblings. mother with his (1984) perti- § 2. W.Va.Code 61-8B-7 states in part person guilty penitentiary nent that is 4. defendant served time "[a] degree person, abuse in the first when ... for the 1995 conviction and was released on [s]uch more, being years subjects September fourteen old or anoth- II. except in reviewable case manifest abuse injustice.” part, DISCUSSION Carduff, us, First, guide With these standards to the defendant avers that the circuit now review the first issue raised precluding erred cross-examina- defendant. G., mother, tion of the victim’s Yvette cerning petitions domestic violence she filed examination, G., On direct Yvette husband, against stepfather, her the victim’s mother, AW.’s that testified since the inci rebut inference that the victim was defendant, dent with the A.W. “terrified of afraid of men because of the defendant’s Specifically, men.” the victim avoids men Specifically, attack.5 sought possible when is withdrawn in their concerning cross-examine the victim’s mother company. Yvette G. testified on cross-exami through several instances 1998 in separated nation that she is now from A.W.’s husband, G., Doug verbally
which her stepfather, separation but A.W. physically abused her and made threats was stepfather. comfortable around her At against her and her children. The defendant point, sought defendant’s counsel alia, argues, preclusion inter question Yvette G. domestic dis deprived right him of his putes intro- estranged her between and her hus *5 challenge duce rebuttal evidence and to precluded the band doing by and was from so the credibility of the witness. trial court. We find that the circuit court did not err This Court has stated that “[a] de First, precluding this cross-examination. right
fendant on trial has the to be accorded seems clear that the victim’s fear men opportunity fully a full and fair examine surrounding collateral to the main issues the Syllabus cross-examine the witnesses.” culpability. defendant’s This evidence 1, Crockett, 435, Point v. 164 State W.Va. 265 response cerns the victim’s to the sexual (1979). However, 268 right S.E.2d this is not directly and is not a abuse matter that unbridled. weighs upon guilt the or innocence of the Several basic rules exist as to cross- words, defendant. In other if even the de- examination of a witness. The first is that fendant that established A.W. feared men scope the of cross-examination is coexten- by to the incident of sexual abuse the with, by, sive and limited the material evi- defendant, changed this would not have the given dence on examination. direct Second, guilt defendant’s or innocence. the may second is that a witness also be cross- petitions domestic violence filed Yvette G. affecting examined about matters his cred- testimony do not contradict her on direct ibility. “credibility” The term includes the examination. The record reveals that on witness, interest and bias of the inconsis- 1998, several instances 1996 and A.W.’s tent statements made the witness and stepfather allegedly verbally physically to a certain extent the witness’ character. mother, abused A.W.’s sometimes front judge The third rule is that the trial has siblings. petitions, From A.W. her these discretion to the extent of cross-exami- however, it cannot be discerned whether the nation. victim did or did not fear men as a result of Syllabus Richey, Point State v. 171 Also, stepfather’s alleged her conduct. noth- (1982).6 opined S.E.2d 879 ing petitions directly We have in these Yvette refutes that court’s decision to testimony exclude G.’s on cross-examination that permit questions on stepfather cross-examination “is not was A.W. comfortable around her July July accord, 611(b)(1) Virginia 5. In 1996 and the victim’s mother In Rule of the West family petitions against filed band, violence her hus- Rules of Evidence states that the cross-examina- G., Doug stepfather, the victim's in which non-party tion of witnesses "should be limited to alleged physical verbal and At abuse. subject matter of the direct examination and the victim's mother testified that she is now credibility affecting non-party matters of the separated from her husband and that divorce witness.” proceedings pending. are unfairly argues that this was family. Finally, The defendant with the lived he when prosecutor remarked prejudicial because the completely precluded from challenge failure to Yvette on the defendant’s concerning rela- A.W.’s Yvette G. questioning testimony concerning fear of men. AW.’s Accordingly, G.’s stepfather. her tionship with defendant, prosecutor According to preclu- circuit court’s conclude only unfairly reason for also stated of the cross-examination sion of men is the defendant’s sexual AW.’s fear concerning domestic violence does mother victim. abuse of the injustice. abuse or to manifest not amount may argue prosecutor “A all rea error, assignment of his second As from sonable inferences the evidence that the circuit contends part, v. record.” argue in allowing prosecutor to erred 342, 376 England, 180 W.Va. S.E.2d of men because of is afraid closing that A.W. at issue It is clear that the comments attack, denying the de after from the constitute a reasonable inference opportunity to cross-examine fendant testimony from the adduced domestic violence G. Yvette Also, prosecutor prohibited a is not Yvette G. petitions. credibility commenting of witn on the England, esses.7 See State allegedly improper reviewing Finally, during by prosecutor clos made comments prosecutor’s carefully has read “[e]ounsel mindful that ing argument, we are closing argument find no references and we argu necessarily great latitude have challenge failure to Yvette defendant’s ease,” Clifford, 58 ment of men, testimony concerning A.W.’s fear of G.’s (1906) (citation S.E. could nor do we find the statement there omitted), should “[u]ndue and that restriction no for the victim’s fear but be other reason prosecuting attorney in placed on a not be *6 Accordingly, the defendant’s sexual abuse. Davis, jury.” v. argument to the State his prosecutor’s comments do we believe that the (1954), 645, 653, 81 S.E.2d 139 W.Va. injustice prejudice in or manifest not result overruled, grounds, part, on other State v. in therefore, conclude, to the defendant. We (1955). Bragg, 140 W.Va. circuit did not abuse its discre court of the trial Accordingly, “[t]he discretion allowing tion in the comments. propriety argument of ruling on the court Next, complains that the the defendant jury will not be inter by counsel before the precluding circuit court erred the defen- court, by appellate unless it with the fered cross-examining Bailey Detective dant complaining rights of the appears that the investigation of in order his lack prejudiced, or that manifest party have been bias, guilt, lack presumption show of and to Syllabus injustice resulted therefrom.” any attempt corroborate the victim’s of to Boggs, 103 Point v. State allegation. S.E. A of the trial reveals review prosecutor of At the close Bailey questioned counsel Detective defense reliability of the argued support of the length concerning the manner which he stated, testimony and investigation including Detec- conducted his place Bailey’s to examine the Why year old make this tive failure would eleven occurred, fact sexual abuse up would she know how to act where the and how identity victim to something happened if that he did ask the like this she after array, to photo from a his failure up? ... How reliable is it defendant had made any wit- clung there were other days. this for That she determine whether that she did at the go at the defendant’s residence wouldn’t out on the nesses to her mother. She offense, his failure to ask the time of the That was afraid of men after porch. she if had at the mother been defendant’s that. however, Syllabus England, v. prosecutor witness. Point State improper, a to a It for is credibility supra. opinion of personal as to the assert his L., period in which during time State Edward Charles house this, light of we abuse occurred. assignment of error. find no merit to this The standard of review for a trial court’s pursuant admission of evidence to Rule by fourth issue raised the defen 404(b) Virginia [of West Evi- Rules of improperly circuit court dant is whether the three-step analysis. dence] involves prior allowed evidence First, we for clear error review the trial pre that in a conviction. The record reveals court’s factual determination that there is 15, 1998, trial order dated June conference sufficient evidence to show the other acts Sep the circuit court set the trial date Second, occurred. de review novo 9, 1998, to tember and ordered the State file correctly whether the found the motions, requests, pre-trial and notices legitimate evidence was admissible for a 29,1998. 26,1998, August June On State Third, purpose. we review for an abuse of intent, its filed notice discretion the trial court’s conclusion that use evidence Defendant’s probative the “other acts” evidence more .is 6,1995 January viction on of West prejudicial than under Rule 403. Graham, Virginia v. Richard Number Case LaRock, 294, 310-311, 94-F-172 and circumstances attendant (1996) (footnote 629-630 cita- 404(b) conviction, pursuant to that to Rule omitted). tions prove disposition ... lustful Defendant’s First, we address the timeliness children, motive, intent, opportunity, of the State’s disclosure of its intent to use preparation, plan, knowledge, identity, 404(b) the Rule evidence. absence mistake accident. and/or grants pre-trial When a trial court 27, 1998, August On filed an discovery requiring prosecution motion objection to the use of this evidence because possession, disclose evidence its non- notice, of the untimeliness of the the State’s prosecution disclosure is fatal to its notify previous failure to prejudi- ease where such non-disclosure response use of the evidence defen- cial. prejudicial The non-disclosure is discovery inspection, dant’s motion for surprised where the defense is on a mate- witnesses, and the State’s failure to state rial issue and where the failure to make facts, or relative to this evidence. hampers preparation the disclosure ultimately The trial was continued until De- *7 presentation and of the defendant’s case. 10, morning cember 1998. On the 2, Grimm, Syllabus Point 165 State issue, argued both sides the and the (1980), modified, Sylla- circuit court admitted the evidence for the Johnson, bus Point State v. 179 W.Va. showing purpose of defendant’s lustful the (1988).8 340 instant S.E.2d The ease disposition. does not concern non-disclosure but rather This has stated: original disclosure outside the time frame crimes, wrongs, Despite Evidence of other or mandated the circuit court. untimeliness, prove not to charac- still no- acts is admissible the the defendant received person of a to show that tice of intent to ter order he the State’s use the evidence conformity may, approximately It months and acted therewith. three fourteen however, Further, purposes, days prior be for other to trial. the defendant admissible motive, proof opportunity, explain prejudiced by of in- fails to how was such as he the tent, preparation, plan,' knowledge, untimely identi- disclosure of the evidence. There- fore, ty, or absence of or accident. we conclude that the notice was suffi- mistake 404(b). ciently timely prevent surprise give W.Va. R.Evid. to to F., "Although Gary prior Grimm was written nounced in Grimm.” State v. adoption Procedure, Virginia of the West of Criminal 527 n. 797 n. 4 Rules determining the "The ... does not affect [of Grimm] standard for whether modification standard; discovery merely comply the the its form.” failure to with court-ordered is substance of Id. fatal remains the same as that which we an- find circuit court did not prepare Finally, we opportunity to the the concluding that the abuse its discretion defense. probative than acts evidence is more other Concerning sufficiency of the the prejudicial under Rule 403. notice, has said: this Court Next, claims that the record the defendant offering under Rule evidence When limiting in- proper that a does not reflect 404(b) Evi- Virginia Rules of of the West given was the admission struction dence, required to iden- prosecution the 404(b) disagree. of Rule evidence.9 We purpose for which the evi- the specific tify the that the circuit jury must trial shows and the The being offered dence is following gave of instruction when to limit its consideration be instructed 404(b) only purpose. It is evidence was admitted. to Rule the evidence prosecution for or the not sufficient going give you I’m to what is called merely or mention the to cite trial court you precautionary instructions that tell 404(b). litany possible uses listed Rule of just you’ve the evidence re- how treat precise purpose for which specific and The jury instructs the ceived. The Court clearly must be is offered the evidence it has heard evidence that the Defendant purpose record and that from the shown of abuse in previously convicted jury in trial told to the must be alone degree against year girl old 1st an 11 court’s instruction. similar circumstances. under somewhat McGinnis, Syllabus Point State of a collateral crime is Such evidence text proof of the Defen- to be considered style, specifically contains the of notice may guilt present part but be dant’s on the date, case number of the defen- and the deciding whether the Defen- considered It also states that dant’s conviction. (unclear) disposition chil- dant had a is, alia, inter purpose of the evidence dren and that his actions were intentional disposition to- prove lustful (unclear). done were give This was sufficient ward children. record, jury charge In contained notice both the nature in its en- the above instruction is recorded 404(b) purpose of the Rule evidence. tirety. place In first “unclear” is the admission of As for the the evi phrase disposition toward children.” “lustful dence, that there is sufficient evi it is clear replaced with the The second “unclear” is Also, acts to show the other occurred. dence gratification.” Super- phrase, “for his sexual correctly trial court found the we believe the trial imposed typed on this instruction is the legitimate purpose. for a admissible judge’s handwriting which states that v. Edward Jury p.m. at 1:28 “[r]ead instruction was L., supra, stated: Charles v. Richard on trial Gra- 12/10/98 may acts or crimes be intro- Collateral ham This notation is fol- 98-FE 1C.” involving child sexual as- duced in cases judge’s signature. We *8 lowed victims to or abuse show the sault sexual gave this that circuit court conclude from perpetrator disposition had a lustful to- adequate limiting an instruction. victim, disposition to- a lustful wards the Last, asserts that the generally, or a lustful dis- the defendant wards children deny transcript incomplete as to provided trial is so position specific to other children appeal. Specifically, for his him a record such relates incidents reason- evidence incident(s) giving complains of the numerous times ably in defendant close time transcript contains the in which the indictment. To the extent rise to the actually place in of what was our v. word “unclear” this conflicts with decision Dolin, [176] W.Va. [688], 347 S.E.2d 208 said at trial. The State agrees that disturbing (1986), transcript contains a number it is overruled. probably did believes the ”[c]ounsel is inconsistent on this 9. The defendant’s brief give adequate page instruction.” point. previous states On the
471 passages,10 STARCHER, Justice, unclear but avers that there is no concurring. prejudice by identifiable error or shown (Filed 2001) 5, Jan. requiring of his convic- reversal I concur strong because the evidence is agree. tion. We that this physical defendant has serious Although specifically we have psychological problems and needs care and issue, addressed this other courts have held protect intensive treatment —both to society, that “omissions from transcript only a trial protect and to the defendant. The circuit warrant a if missing portion new trial ‘the judge’s commendable creative sentence is a transcript specifically prejudices [a de appropriate direction, serious step in this ” Brown, appeal.’ fendant’s] v. 202 U.S. F.3d simply and I tamper would not with that (4th Cir.2000), 696 quoting United sentence. (4th Gillis, States 773 F.2d 554 Cir. However, 1985); considering the trial that led Huggins, United States v. 191 F.3d (4th sentence, appropriate the defendant’s Cir.1999), denied, I 536 cert. 529 U.S. separately 1968,146 my write continuing 120 note dis- S.Ct. L.Ed.2d 799 may Clark, at integrity See also the erosion of the State v. 644 of our So.2d Cir.1994), processes, criminal (La.App. denied, an erosion that the ma- writ 651 So.2d (La.1995) (“a jority blindly approves. necessarily defendant is not just entitled to his have conviction reversed In a criminal “prior bad because transcript there is no trial available usually unfairly acts” is so prejudicial that we for review .... [but] where a defendant’s go don’t jury, let before the unless there’s right prejudiced of review was ... the defen special a reason for its admission under relief’). given dant was This is accord 404(b) W.Va. Rule Evidence example, —for with our own Mayle, law. motive, plan to show I etc. As stated in (1987), the defen my McIntosh, dissent State v. process dant claimed that rights his due were (2000): years violated because more than two a touching Where defendant admits elapsed supplied before his areas, child on their sexual but denies that him complete so that he could appeal. his touching purpose, was for a sexual disagreed, This Court explaining that “we clearly other instances of non-accidental have him appeal, allowed and he has touching might be admissible under prejudice by delay shown no of two 404(b) show the defendant’s actual —to years.” Mayle, at plan or appears motive. That to be the Despite regrettable number of Yager majori- case case cited passages, unclear we believe that the tran ty, where the court held that such evidence script way prejudices in no the defendant’s was admissible “to establish that it was no right to meaningful appeal. This Court [the accident that defendant] touched the difficulty assessing had no ease, penis.” inBut the instant alleged light errors of the record. touching, the defendant denied all so his separate motive was not a III. issue. Under it in the defendant. For the assignments foregoing Accordingly, CONCLUSION reasons, of error raised judgment find no mer- 404(b). these circumstances “other crimes” evi- dence should not be admissible under [*] [*] [*] [*] [*] [*] Circuit Court of County Mercer is affirmed. One could write a dissertation on how *9 404(b), Rule [193 McGinnis
Affirmed. (1994)], S.E.2d 516 and now Edward Justice STARCHER concurs and files a L. [183 Charles (1990)] concurring opinion. “runaway have become a train” in brief, According page passages. State’s the 105 contains 123 unclear currently con- courts, judges apply common sense this when are of our some happens, crim- fused of law. When that area proper gatekeep- tempted to their abandon inal offense will be trials sex cases prosecutors. role over-zealous We er fairly and accord with the rules ducted original away from moved far have evidence. purpose permitting such evidence. Will The standard now seems be:
help prosecutor? cases, jury soon as a
In most hears offense, sex a de-
about defendant’s Why meat. have
fendant dead even day I await this can
trial? when
stop runaway train. can and will We