Background
Brendan W. was convicted on multiple counts, including Count Two (sexual abuse by a parent, guardian, custodian, or person in a position of trust) and Count Four (sexual abuse under West Virginia Code § 61-8B-7). Before trial, the circuit court barred the State from calling the victim’s therapist as an expert witness due to the State’s failure to comply with Rule 16(1)(E) of the West Virginia Rules of Criminal Procedure, which requires disclosure of expert witness summaries. The court also barred the petitioner from calling his wife as an alibi witness for his own discovery violation.
At trial, the State called the therapist as a lay witness. During her testimony, the prosecutor moved to admit the therapist’s treatment notes. Those notes reflected that the victim was in therapy for childhood sexual abuse, had been diagnosed with PTSD and trauma-related symptoms, and that the therapist had also provided education to the victim’s biological father. The prosecutor also elicited the therapist’s opinion — characteristic of expert testimony — that it is “not unusual” for child victims to maintain relationships with their alleged perpetrators. The circuit court allowed the notes and testimony into evidence.
On appeal to the Supreme Court of Appeals of West Virginia, the majority reversed the petitioner’s conviction on Count Four, finding the indictment charged a violation of § 61-8B-7(a)(1) and was insufficient to support a conviction under § 61-8B-7(a)(3), and that the jury instruction on (a)(3) amounted to an improper amendment of the indictment. The majority affirmed the conviction on Count Two. Justice Wooton filed a partial concurrence and partial dissent.
The Court’s Holding
This opinion is a partial concurrence and partial dissent by Justice Wooton. The Justice agreed with the majority on all grounds for reversing Count Four and agreed that the therapist’s notes were relevant. However, the Justice disagreed with the majority’s decision to affirm the Count Two conviction, arguing the court should have exercised its authority to notice plain error in the admission of the therapist’s notes and reversed that conviction as well.
Justice Wooton reasoned that the admission of the treatment notes satisfied all four prongs of the plain error doctrine: there was an error that was plain, it affected the petitioner’s substantial rights, and it seriously undermined the fairness of the proceedings. By introducing expert-grade content through a lay witness after the court had already excluded the therapist as an expert, the State effectively circumvented the court’s pre-trial discovery ruling. Defense counsel, having no reason to prepare for expert cross-examination after the court’s ruling, was ambushed at trial and unable to mount an effective challenge to the substantive opinions conveyed through the notes.
The Justice further noted that the circuit court enforced the discovery rules asymmetrically — holding the petitioner strictly accountable for his alibi notice failure while allowing the State to evade the consequence of its own Rule 16(1)(E) violation. In the Justice’s view, this imbalance tipped the scales of justice against the petitioner and denied him due process under Article III, Section 10 of the West Virginia Constitution, warranting reversal of Count Two as well.
Key Takeaways
- The majority reversed Count Four after finding the indictment charged a violation of § 61-8B-7(a)(1) while the jury was instructed on § 61-8B-7(a)(3), constituting an improper amendment of the indictment.
- Justice Wooton would have also reversed Count Two on plain error grounds, finding that admitting a barred expert’s treatment notes through a lay witness back door constituted trial by ambush that denied the petitioner a fair trial.
- Preparing to cross-examine an expert witness is materially different from preparing for a lay witness; a mid-trial switch — enabled by the court after the exclusion ruling — left defense counsel without any meaningful opportunity to respond.
- Courts should enforce discovery rules evenhandedly; allowing one party to circumvent a sanction while holding the other to strict compliance undermines the fairness of the proceeding.
Why It Matters
This partial dissent highlights the risk that expert testimony can be smuggled into a criminal trial through lay witnesses and documentary exhibits after the court has already imposed discovery sanctions. Defense attorneys should be aware that an order excluding a witness as an expert does not necessarily prevent the State from eliciting expert-like opinions or introducing documents reflecting expert conclusions through that same witness in a lay capacity — and should be prepared to object on grounds beyond mere relevance, including unfair surprise and due process.
The opinion also reinforces that West Virginia’s plain error doctrine is available to appellate courts acting sua sponte when a trial court’s evidentiary ruling — even one not squarely objected to below on the correct grounds — so fundamentally distorts the proceedings that the integrity of the verdict is called into question. Counsel on both sides should take care to preserve all available objections at the time evidence is offered, and should not assume that a favorable pre-trial ruling forecloses the need for further vigilance at trial.