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Darrell V. 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. To the extent that this conflicts with our decision in State v. Dolin, W.

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It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule b. The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction. McGinnis, W. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts.

If the giros real girls looking for sex morgantown room does not find rokm a lloking of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule b. If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules and of the West Virginia Rules of Evidence and conduct the balancing required under Rule of the West Virginia Rules morgqntown Evidence.

Opinion, case no state of west virginia v. donald mcintosh

If the trial court is then satisfied that the Rule b evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence. Larock, W. Gangwer, [] W.

Mullins, W. West Virginia Dept. Welker, W.

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Gwinn, W. Horton, W. The first is that the scope of cross-examination is coextensive with, real girls looking for sex morgantown room limited by, the material evidence given on direct examination. The second is that a witness may also be cross-examined about matters affecting his credibility. The term 'credibility' includes the interest and bias of the witness, inconsistent statements made by the witness and to a certain extent the witness' character.

The third rule is that the trial judge has discretion as to the extent of cross-examination. Richey, W. Carduff, W. Wood, W. Before such psychiatric disorder can be shown to impeach a witness' testimony, there must be a further showing that the disorder affects the credibility of the witness and that the expert has had a sufficient opportunity to make the diagnosis of psychiatric disorder. Harman, W.

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Chaffin, W. Fairchild, W. If the defendant is not misled in any sense, is not subjected to any added real girls looking for sex morgantown room of proof, and is not otherwise prejudiced, then the difference between the proof adduced at trial and the indictment is a variance which does not usurp the traditional safeguards of the grand jury. However, if the defendant is misled, is subjected to an added burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the indictment is an actual or a constructive amendment of the indictment which is reversible error.

Johnson, W.

The Appellant was sentenced to one to five years on each count, to run concurrently. See footnote 1 1 The Appellant contends that the lower court erred by permitting the introduction of evidence of other bad acts, in preventing cross-examination of a witness concerning her mental health history, and in allowing the conviction to stand despite a variance between the indictment and the testimony.

Upon thorough review of this matter, we affirm the convictions rendered below. Facts In JuneMs. Erika Miller registered a complaint with real girls looking for sex morgantown room Morgantown, West Virginia, police department regarding harassing telephone calls allegedly made by the Appellant. See footnote 2 2 In the course of the investigation into the telephone calls, Ms. Miller informed the police that the Appellant had been her teacher in the sixth and ninth grades and had traded better grades for sexual favors in andincluding fondling, oral sex, and intercourse.

During the investigation, Ms. Miller also informed the police that the Appellant had similarly induced other female students to perform sexual acts in exchange for more favorable grades during the same general time period. See footnote 3 3 At trial, Ms. Miller testified that the Appellant, while serving as her teacher in the sixth and ninth grades, had expressed his love for her and had informed her that she could improve her grades by meeting him after class.

Miller testified that, during her ninth grade year in andshe and the Appellant occasionally drove around Morgantown in the Appellant's vehicle as he collected payments for the Dominion Post newspaper. Miller testified that the Appellant fondled her in November while she and the Appellant were sitting in the Appellant's vehicle copying answers from written keys to tests. Miller further testified that the Appellant placed his hand on her breast area and forced Ms.

Miller to touch and rub his penis. She testified that the Appellant subsequently unzipped his pants, pushed her seat back, got on top of Real girls looking for sex morgantown room.

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Miller, and began to push his penis against her. She explained that he thereafter real girls looking for sex morgantown room a finger into her vagina and warned her not to tell anyone about the incidents. Miller also testified regarding an incident of oral sex in Septemberincluding an incident in which the Appellant requested oral sex from both Ms. Miller and another young woman, Ms. Betty Barefoot. Miller explained that the Appellant caused her to preform oral sex on him in February and again in April or May Betty Barefoot testified that she had occasionally ridden home with the Appellant and Ms.

Miller while in junior high school in and Barefoot stated that the Appellant once unlocked a school building, escorted Ms. Barefoot and Ms. Miller to a small room, and requested that they both perform oral sex on the Appellant.

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Barefoot testified that she declined to perform the act, but that she witnessed Ms. Miller performing oral sex on the Real girls looking for sex morgantown room. Barefoot also testified that she and Ms. Miller fod take turns sitting up front in gidls Appellant's automobile. The Appellant would touch the breast and crotch areas of the girl sitting roim front and would require the girl to touch his penis.

Brenda Frum testified that she was in a third or fourth grade class taught by the Appellant in She testified that she had become ill while on the playground and that she requested permission from the Appellant to go inside and telephone her mother. She testified that the Appellant had suggested that she would feel better if she went inside and put her head down. She complied, and the Appellant later ed her in the school.

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Pooking testified that the Appellant real girls looking for sex morgantown room rubbing her shoulders, playing with her hair, and moving his hands in a down and forward motion on her chest. She testified that she had become uncomfortable and had asked again to telephone her mother. The Appellant indicated to her that what he was doing would make her feel better.

He also advised her not to tell anyone about the incident because she would get into trouble. She further explained that he continued to hug her throughout the school year for getting good grades. Lisa Fowler testified regarding an event which occurred while she had the Appellant for eighth grade in She had approached the Appellant and asked how she could improve her grade in his class.

He advised her to talk to him after class in the teachers' lounge.

She and two other girls then met him after class in the lounge. She testified that the Appellant told her that the only way to improve real girls looking for sex morgantown room grade was to perform sexual activity with him. One of the other girls allegedly present during this conversation testified that she could not remember the incident due to her poor memory. Dawn Moury testified that she had the Appellant for fifth grade in She explained that the Appellant would ask her to sit on his lap while she waited for her mother to arrive after school.

She stated that the Appellant would place his hands on her shoulders, back, waist, breasts, and loking her thighs. The Appellant did not provide an alibi defense; he simply denied that he had inappropriately touched any student.

The Appellant called witnesses to testify concerning his truthful and honest nature, and fellow teachers also testified that morgantow Appellant had maintained a good rapport with his students. The Appellant was convicted of three counts of sexual assault in the third degree in September and was sentenced to three one-five year sentences real girls looking for sex morgantown room run concurrently. A motion for a new trial was denied and that final order on the jury's verdict was entered on March 15, Discussion A.

Edward Charles L. Finally, the Appellant advocates reversal of Edward Charles L. Standard of Review In State v. In assessing the defendant's contentions, we delineated the following standard of review for Rule b evaluations: The standard of review for a trial court's admission of evidence pursuant to Rule b involves a three-step analysis. First, we review for clear error the trial court's factual determination that there is sufficient evidence to show the other acts occurred.

Second, we review de novo whether the trial court foe found the evidence was admissible for a legitimate purpose. See State v. Dillon, W. Alliance Resources Corp. State v.

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