Background
Randy C. Cain was convicted at trial of, among other offenses, wanton endangerment with a firearm and use or presentment of a firearm during the commission of a felony. The prosecution’s case connecting the firearm to the charged conduct rested heavily on two categories of out-of-court statements: testimony from the victim’s sister recounting a voicemail the victim left requesting help, and testimony from a responding deputy recounting statements the victim made describing how she was injured. Defense counsel objected to this testimony on hearsay grounds before and during trial. The only admissible evidence of firearm possession consisted of still photographs showing Cain holding a handgun on a porch and an apparent bullet hole in a television set inside the residence—evidence that did not depict the assault or directly link Cain to the charged conduct.
On appeal, the majority found that the hearsay statements of the responding deputy were inadmissible and could not be saved by the present-sense-impression exception (Rule 803(1)), the then-existing-mental-or-emotional-condition exception (Rule 803(3)), or the residual hearsay exception (Rule 807). The majority reversed the wanton endangerment conviction but affirmed the conviction for use or presentment of a firearm, concluding that Cain had not adequately preserved his hearsay objections as to the sister’s testimony and that sufficient admissible evidence supported the remaining conviction. Justice Trump wrote separately to concur in part and dissent in part.
The Court’s Holding
This opinion is Justice Trump’s partial concurrence and partial dissent, not the majority opinion. Justice Trump agreed with the majority that neither Rule 803(1) nor Rule 803(3) saved the deputy’s hearsay statements, and further would have expressly held that Rule 807 cannot apply in this case—going further than the majority on that point. Justice Trump also agreed that the wanton endangerment conviction must be reversed. However, Justice Trump dissented from the majority’s affirmance of the use-or-presentment conviction, concluding that the admissible evidence was insufficient to support that charge as well.
On the sufficiency question, Justice Trump reasoned that the photographs established only that Cain possessed a handgun; they did not depict the assault or show the firearm being used or displayed against the victim. The bullet hole in the television lacked any demonstrated temporal or causal connection to the charged events—no shell casings, no ballistics, and no testimony tied the damage to Cain or to the relevant timeframe. Stripping away the inadmissible hearsay, no rational trier of fact could have found the essential elements of the use-or-presentment offense beyond a reasonable doubt under the standard from State v. Guthrie, 194 W. Va. 657 (1995).
Justice Trump also disputed the majority’s finding that Cain failed to preserve his hearsay objections to the sister’s testimony. The record showed a pretrial motion in limine, repeated objections during the sister’s testimony, and an explicit sidebar argument that “every bit of her testimony as to how she sustained these injuries is all hearsay”—objections the trial court largely sustained. Justice Trump concluded these objections were timely and specific, and that even if preservation were imperfect, admission of the testimony constituted plain error given its centrality to the firearm charges.
Key Takeaways
- The majority reversed the wanton endangerment with a firearm conviction due to improperly admitted hearsay but affirmed the use-or-presentment conviction; Justice Trump would have reversed both firearm-related convictions.
- Justice Trump’s dissent highlights the danger of the “effect on the listener” rationale being used as a pretext to introduce substantive hearsay accusations, especially when no limiting instruction is given to the jury.
- The dissent underscores that a defendant’s possession of a firearm, without more, does not support an inference—absent a limiting instruction or admissible evidence—that the firearm was used or displayed during an assault.
- A pretrial motion in limine combined with repeated, specific trial objections may be sufficient to preserve a hearsay issue for appeal even if defense counsel does not move to strike every nonresponsive answer.
Why It Matters
This opinion offers a careful analysis of how courts should handle hearsay testimony introduced under ostensibly non-hearsay rationales, particularly the “effect on the listener” doctrine. Justice Trump’s dissent makes plain that when the listener’s responsive conduct is not at issue, that rationale collapses into a mechanism for admitting substantive hearsay—especially without a limiting instruction. Defense attorneys handling cases with similar fact patterns will find the dissent’s preservation analysis and its treatment of cumulative hearsay prejudice particularly useful.
The opinion also reinforces the principle from State v. Atkins, 163 W. Va. 502 (1979), that when inadmissible evidence is stripped from the record, the remaining evidence must independently support each element of each charged offense beyond a reasonable doubt. Where firearm-specific conduct is charged, proof of mere possession is not a substitute for proof of use or presentment.