State v. Thomas

Full title: STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. DAVID RAY THOMAS…

Court: State of West Virginia Supreme Court of Appeals

Date published: Nov 8, 2023

No. 22-0239 (W. Va. Nov. 8, 2023)

Opinion

22-0239

11-08-2023

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. DAVID RAY THOMAS, Defendant Below, Petitioner.

Devon T. Unger, Esq. West Virginia Innocence Project Morgantown, West Virginia Counsel for the Petitioner Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq. Solicitor General William E. Longwell, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

ARMSTEAD, JUSTICE:

Submitted: September 12, 2023

Appeal from the Circuit Court of Ohio County The Honorable Michael J. Olejasz Case No. 18-F-15 AFFIRMED

Devon T. Unger, Esq. West Virginia Innocence Project Morgantown, West Virginia Counsel for the Petitioner

Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq. Solicitor General William E. Longwell, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

JUSTICE WOOTON dissents and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syllabus Point 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

2. ""'The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court.' Syllabus point 8, State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989)." Syllabus Point 1, State v. Costello, 245 W.Va. 19, 857 S.E.2d 51 (2021).

3. "'The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982)' Syl. Pt. 1, State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985)." Syllabus Point 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

4. "''The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, [169] W.Va. [24], 285 S.E.2d 432 (1981) [overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994)].' Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982)." Syllabus Point 5, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997).

5. "Under Code, 61-11-8, which provides, in part, that: 'Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows: ***' the failure or prevention of the accused to commit the offense attempted is as much an element of the attempt to commit the offense as the immediate specific intent to commit to the offense and an overt act in furtherance of such intent." Syllabus Point. 4, State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953).

6. Attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree.

7. "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syllabus Point. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

8. "Before a manifest necessity exists which would warrant the declaring of a mistrial and the discharging of the jury and ordering a new trial, the circumstances must be prejudicial, or appear to be prejudicial, to the accused or the state." Syllabus Point 3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972).

9. "The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case." Syllabus Point 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).

10. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syllabus Point 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976) (abrogated on other grounds by State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

11. "In the trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence, the weight and credibility of the testimony of any witness is for jury determination." Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952).

12. "It is improper for a prosecutor in this State to '[a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness … or as to the guilt or innocence of the accused….' ABA Code DR7-106(C)(4) in part." Syllabus Point 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

13. "'Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of the competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.' Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995)." Syllabus Point 1, State v. Hamrick, 216 W.Va. 477, 607 S.E.2d 806 (2004).

OPINION

ARMSTEAD, JUSTICE:

Petitioner appeals his conviction of sexual assault in the first degree following a jury trial in the Circuit Court of Ohio County. On appeal, Petitioner asserts that the circuit court erroneously: (1) refused to instruct the jury on the offense of attempted sexual assault in the first degree; (2) denied Petitioner's motion for a mistrial regarding a photographic identification; (3) denied an in camera hearing when Petitioner learned that there was an out-of-court photographic identification; and (4) denied a mistrial when the prosecution's key witness testified at trial to the opposite of what had been provided in discovery and the assistant prosecutor vouched for the witness's credibility.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the circuit court did not err. We, therefore, affirm Petitioner's conviction.

I. FACTUAL AND PROCEDURAL HISTORY

On or about February 3, 2017, A.M.¹ disclosed to her elementary school counselor that a man touched her vagina one time.² This disclosure was reported to West Virginia Child Protective Services and the West Virginia State Police. Further, this disclosure was memorialized in an email drafted by the counselor, which reads:

1 Consistent with our long-standing practice, we use initials to protect the identities of those involved in this case. See W.Va. R. App. P. 40(e).

2 During A.M.'s fifth grade year at her elementary school, the counselor taught a curriculum called "The Child Safety Unit," which addressed different types of abuse and provided the children with information about how to talk to someone about unwanted touches.

[A.M.] disclosed that in May or June of last summer (between 4 and 5 grade) a "private body part rule" had been broken with her. She shared that while at her mom's house, still living in North Park Apartments, her mom's friends "Dayo" had touched her vagina while he thought she was asleep on the couch. She explained that mom was in the shower and that she had fallen asleep on the couch with her baby brother, [A]. Dayo picked up and moved [A] to the other end of the couch and then sat back down with her and put his hand inside of her pants. He stopped when mom opened the door to come out of the bathroom, where she was showering. She pretended to be asleep while Dayo touched her and she thinks he did not know that she realized this was happening to her. She said that she told her mom the next day and that she said, Ok, I will talk to Dayo about it. [A.M.] thinks mom was lying [because] "I can always tell when she's lying" and thinks she never did anything about it [be]cause they never talked about it again. Until reporting to this counselor, she says that she has not told anyone else. I called the new caseworker and she asked me to help transport [A.M.] to Harmony House for forensic interview this same day. I also made a formal report to WV CPS centralized intake.

The counselor transported A.M. to Harmony House for a forensic interview. Although the interview was recorded, the video was the only portion that actually recorded. The audio of the interview failed to record.

A.M.'s case worker at the time of her disclosure witnessed the interview and prepared an email memorializing it. In the email, the case worker described A.M.'s account of the event in which she identified Dayo as the man who put his hand inside her clothes in the "bikini bottom part between the legs." Further, according to the case worker's email, A.M. said that Dayo "moved his fingers around and it felt 'weird it's hard to explain.'" She noted that "[A.M.] denies penetration. She says that the incident stopped when he heard the bathroom door open."

On July 20, 2017, a criminal complaint was filed against Petitioner, and on the same day, a warrant was issued for his arrest. Petitioner waived extradition from Ohio and was transported to the Magistrate Court of Ohio County for his initial appearance. Petitioner's bail was set at $25,000 (full cash only) and due to his inability to post bail, he was committed to jail.³ On January 8, 2018, Petitioner was indicted on one count of sexual assault in the first degree. He was arraigned on January 18, 2018, and at that time, the State served "State of West Virginia's Discovery Disclosure" upon Petitioner through his counsel. In Section VIII of the disclosure, which deals with "Photographs from Photographic Lineups or other Identification Proceeding," the State noted "Not applicable."

3 Petitioner's bond was subsequently modified, by agreed order, to $10,000 corporate surety bond with GPS monitored house arrest. Petitioner posted bond on February 1, 2018, and he remained on home confinement until it was revoked following his conviction.

Petitioner's trial began on May 7, 2018, and concluded on May 9, 2018. During the trial, the State called five witnesses: the school counselor, A.M.'s case worker, M.F. (A.M.'s mother), Sergeant Dean (investigating officer), and A.M. Relevant to this appeal, during the cross-examination of A.M.'s mother, M.F., she testified that Sergeant Dean had shown her a photograph of Petitioner and asked her to identify him. Petitioner's counsel moved for a mistrial and argued that because the State failed to disclose the identification pretrial, "there [was] no remedy for it other than a mistrial." The circuit court disagreed and denied Petitioner's motion for a mistrial.

After the State rested its case, the parties and the court engaged in a discussion regarding the charge and jury instructions.⁴ The State included a proposed jury instruction for the lesser included offense of sexual abuse in the first degree. Petitioner objected to the instruction so it was withdrawn by the State. Thereafter, Petitioner requested an instruction for attempted sexual assault in the first degree, and the State objected to such an instruction.

4 Both sides submitted a proposed jury charge, and the circuit court described them as "very similar, if not virtually identical."

After consideration of this issue, the circuit court declined to include an instruction for attempted sexual assault in the first degree for the following reasons: (1) Petitioner did not submit a proposed instruction for attempted first-degree sexual assault; and (2) the court did not believe that the evidence would support giving an attempted first-degree sexual assault instruction.

During closing arguments, the assistant prosecutor made the following remarks concerning A.M.'s trial testimony:

"[p]robably the most critical, most reliable most inherently non-tainted evidence in this case is A.M. A.M. came to court today as an 11-year old child that plays the violin and is in chorus and has so many pets that I can't even remember and now lives with her grandma, and she testified to you, specifically and in detail, about the sexual assault by Dayo, David Ray Thomas. A.M. has no motivation to lie."

Petitioner made a timely objection to this statement and argued that the assistant prosecutor was "vouching for the witness." For this reason, Petitioner again moved for a mistrial. Although the circuit court did not find that vouching had occurred, it instructed the assistant prosecutor not to vouch for the credibility of witnesses. Upon resuming her closing argument, the assistant prosecutor said "[y]ou are the trier of the facts and you can judge the credibility of the witness - the witnesses."

During the State's rebuttal closing argument, the assistant prosecuting attorney said: "[t]hat child was so deliberate and factual and just listened to the questions. She wasn't coached. She wasn't lying about issues and saying things." Petitioner made a timely objection and again moved for a mistrial arguing that the assistant prosecutor had vouched for A.M. The circuit court sustained Petitioner's objection and instructed the jury to "disregard counsel's last statement."

Following deliberations, Petitioner was convicted of sexual assault in the first degree and was sentenced to an indeterminate term of incarceration of not less than twenty-five nor more than one hundred years.

Petitioner now appeals his conviction.⁵

5 Following his conviction, Petitioner requested new counsel, and his request was granted. Petitioner appeared for his sentencing hearing on August 28, 2018, and his sentence was memorialized in an order entered on November 9, 2018. On May 15, 2019, the circuit court entered an Amended Sentencing Order to correct an error in the State's recitation of the evidence introduced at trial, but the amended order did not change Petitioner's sentence, conditions of registration or supervised release. On April 5, 2019, this Court granted prior counsel's Motion to Withdraw Petitioner's Appeal. On or about February 8, 2022, Petitioner moved to be resentenced to renew his appeal period. By order entered on March 22, 2022, Petitioner was resentenced and the instant appeal followed.

II. STANDARDS OF REVIEW

Initially, Petitioner asserts that the circuit court erred by refusing to instruct the jury on the offense of attempted sexual assault in the first degree. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

"'The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court.' Syllabus point 8, State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989)." Syl. Pt. 1, State v. Costello, 245 W.Va. 19, 857 S.E.2d 51 (2021).

"The decision to grant or deny a motion for mistrial is reviewed under an abuse of discretion standard." State v. Lowery, 222 W.Va. 284, 288, 664 S.E.2d 169, 173 (2008).

III. DISCUSSION

In his appeal before this Court, Petitioner argues that the circuit court erroneously: (1) refused to instruct the jury on the offense of attempted sexual assault in the first degree; (2) denied Petitioner's motion for a mistrial regarding a photographic identification; (3) denied an in camera hearing when Petitioner learned that there was an out-of-court photographic identification; and (4) denied a mistrial when the prosecution's key witness testified at trial to the opposite of what had been provided in discovery and the assistant prosecutor vouched for the witness's credibility.

A. LESSER INCLUDED OFFENSE

In Petitioner's first assignment of error, he asserts that the circuit court erroneously denied his motion to instruct the jury on the lesser included offense of attempted sexual assault in the first degree.

Petitioner was indicted and convicted of sexual assault in the first degree.⁶During a discussion regarding jury instructions, the State provided the circuit court with a written instruction for the lesser included offense of sexual abuse in the first degree. Petitioner objected to the State's instruction for sexual abuse in the first degree so it was withdrawn by the State. The State informed the court that it was "comfortable with first-degree sexual assault … just guilty or not guilty."

6 West Virginia Code § 61-8B-3(a)(2) provides: "A person is guilty of sexual assault in the first degree when: The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than twelve years old and is not married to that person."

Petitioner moved to have the jury instructed on the crime of attempted sexual assault in the first degree but did not provide the circuit court with a proposed written instruction for that offense.⁷ Following a recess, the circuit court informed the parties that it would not include a jury instruction for attempted sexual assault in the first degree. In support of its ruling, the circuit court indicated that "[t]here hasn't been one submitted, but notwithstanding that, I don't believe the evidence would support giving an attempted sexual assault instruction. I think, based on the evidence, it's either the State has met its burden of proof as to the charged offense or it has not met its burden of proof as to the charged offense." Counsel for Petitioner offered the following proffer of what his instruction would have been:

7 Immediately after this request was made, the discussion veered from the attempt instruction to the topic of a possible alibi defense when Petitioner interjected himself into the discussion and stated that he was out of state at the time the crime occurred. Petitioner's trial counsel indicated that Petitioner was "going to testify to that," and the State objected because the Petitioner had not provided notice of an alibi defense. The alibi issue was eventually resolved when the circuit court indicated that an alibi defense would be improper, and counsel for Petitioner agreed and indicated: "[o]ur defense is we didn't do it. That's not an alibi."

[i]t would've been - well, actually, it would've been - it would've been that the jury could return one - it could return three verdicts. It could return a verdict of guilty of first-degree sexual assault, guilty of attempted first-degree sexual assault, or not guilty. My attempt instruction would've come from West Virginia Code 61-11-8, and it says that every person who attempts to commit an offense, that failed to commit an offense or is prevented from committing it, shall, where it is not otherwise provided by law, be punished as followed [sic]. And I also would've said that there's two elements for the attempt. First, there has to be an intent to commit the crime, and then, second, there has to be a substantial step in furtherance of that crime with the intent to commit the crime. That would've been what I would've instructed with regards to my attempt instruction.

This Court has previously held:

[t]he question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense.

Syl. Pt. 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

We begin our analysis by first determining whether the crime of attempted sexual assault in the first degree is actually a lesser included offense of sexual assault in the first degree. Petitioner argues that "[t]he test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without having first committed the lesser offense." State v. Bell, 211 W.Va. 308, 311, 565 S.E.2d 430, 433 (2002). Petitioner acknowledges that whether the crime of attempted sexual assault in the first degree is a lesser included offense of sexual assault in the first degree is an issue of first impression for this Court. In essence, Petitioner argues that a person cannot complete an act without first attempting to complete the act. ⁸ In support of this argument, Petitioner urges this Court to follow decisions from other jurisdictions which have concluded that attempted sexual assault in the first degree is a lesser included offense of sexual assault in the first degree. We decline to do so.

8 In his brief before this Court, Petitioner lays out this argument as follows: "[n]eedless to say, attempted penetration is a lesser included offense of completed penetration because it is impossible for a person to complete an act (at least where intent is an element) if the person didn't attempt to complete it."

Petitioner's analysis of whether a particular offense is a lesser included offense does not provide the complete picture. "The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, [169] W.Va. [24], 285 S.E.2d 432 (1981)[overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994)].' Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982)." Syl. Pt. 5, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997) (emphasis added).

Unlike the jurisdictions Petitioner cites, this Court is bound to apply the elements in the attempt statute of this State and as interpreted by this Court in ascertaining whether the elements of attempted sexual assault include an element not required of completed sexual assault The general attempt statute, West Virginia Code § 61-11-8, provides in relevant part that "[e]very person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows…."

In State v. Starkey, we noted the difficulties in contouring the elements of the general attempt statute, "result[ing] from the fact that an attempt to commit a crime covers a broad spectrum of different criminal offenses." 161 W.Va. 517, 522, 244 S.E.2d 219, 222 (1978), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163, (1995).⁹ Nevertheless, under Starkey "[i]n order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of the crime, which falls short of completing the underlying crime. Id. at Syl. Pt. 2.

9 The Court in Starkey further noted that the difficulty in attempted crimes can be attributed, in part, to the fact that "[t]he crime of attempt does not exist in the abstract, but rather exists only in relation to other offenses." And "[e]ach criminal offense contains separate elements. Consequently, the type of facts necessary to prove an attempt to commit murder will not be the same as those necessary to prove an attempt to commit embezzlement or arson." Starkey, 161 W.Va. at 522, 244 S.E.2d 219, 222-223.

Important for our purposes, this Court has held, since at least 1953, that "[u]nder Code, 61-11-8, … the failure or prevention of the accused to commit the offense attempted is as much an element of the attempt to commit the offense as the immediate specific intent to commit the offense and an overt act in furtherance of such intent." Syl. Pt. 4, State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953). Having cited Franklin, the Starkey Court was aware of and did not disturb that point of law. Starkey, 161 W.Va. at 521, 244 S.E.2d at 222. While Petitioner argues that logic demands the conclusion that one must always attempt a crime before completing it, that logic is not universally applicable, particularly given that attempt requires the specific intent to commit a crime and not all crimes are intentionally committed. We find that applying this Court's precedent relative to the elements of attempted sexual assault compels the conclusion that it requires proof of an element not required of sexual assault, namely, the failure or prevention of the accused to actually commit a sexual assault.¹⁰ Therefore, the crime of attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree and Petitioner was not entitled to the instruction because the first prong of Neider is not met .¹¹

10 Rule 31(c) of the West Virginia Rules of Civil Procedure provides: "(c) Conviction of lesser offense.The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." This rule refers to attempt and lesser included offenses with the disjunctive "or" - that is, that attempt is distinct from a lesser included offense of the greater charged, albeit all under the umbrella of "lesser offenses." Lesser included offenses offer a criminal defendant the benefit of mitigation for not having committed some extra element of the greater offense that is tantamount to greater culpability. The inchoate crime of attempt, by contrast, is a "lesser offense" because it offers the defendant mitigation insofar as the crime intended was not accomplished either by choice or by happenstance. Petitioner does not cite or otherwise argue that he is entitled to relief based on Rule 31, couching his argument solely in terms of attempt as a lesser included offense, and we address his argument accordingly.

11 In support of his argument regarding the circuit court's refusal to instruct the jury on the crime of attempted sexual assault in the first degree, Petitioner also asserts that the denial of his proffered instruction resulted in a dramatic difference in his sentence. Petitioner's reliance upon the differences in the severity of the sentences between the two crimes is without merit. Although Petitioner correctly notes that the crime of sexual assault in the first degree, for which he was convicted, carries an indeterminate sentence of 25 to 100 years, and the crime of attempted sexual assault in the first degree carries a much reduced sentence of 1 to 3 years, he fails to acknowledge that this issue is not a factor that this Court can consider. "[S]entence length is not a factor in … [the] test for determining whether a defendant is entitled to a lesser-included offense instruction." State v. Wegman, No. 17-1041, 2019 WL 2406521 at *3 (W.Va. Supreme Court, June 7, 2019)(memorandum decision). Interestingly, Petitioner also asserts that his sentence would have been greatly reduced if he had been convicted of what he terms "sexual contact," which is sexual abuse in the first degree. However, as we have previously noted, Petitioner objected to the giving of this specific instruction so the State withdrew its proposed instruction for sexual abuse in the first degree.

While we need not continue the Neider analysis of whether the attempt instruction was supportable by the evidence, we find it incumbent to mention that Petitioner relied on a misidentification defense, not mitigation for a crime that he failed to complete because he was interrupted during its commission.¹² The evidence presented at trial was that of a completed sexual assault (penetration) or a completed sexual abuse in the first degree (sexual contact without penetration). The only evidence that Petitioner was prevented from committing the completed crime of sexual assault was the victim's interview at Harmony House when she told the interviewer that he stopped touching her when her mother got out of the shower and opened the bathroom door - by which time he had already completed the offense of sexual abuse in the first degree. However, when offered an instruction on the lesser included offense of sexual abuse in the first degree,¹³Petitioner objected, contending that it was an "all or nothing" case. In other words, Petitioner's view of the evidence was that the State had to prove penetration (the completed crime of sexual assault in the first degree) or be content with an acquittal for no crime having occurred at all. Under those circumstances, we have difficulty concluding that the circuit court abused its discretion in finding that the evidence did not support an attempt instruction. Moreover, the circuit court was only obligated to give the instruction at issue if it was a lesser included offense. Because we have concluded that attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree, Petitioner was not entitled to the requested instruction.

12 Petitioner acknowledges that identification was an issue in this case, and in fact during closing arguments, Petitioner's trial counsel said "[s]omething may have happened to this child. I don't know. Let me tell you, that man [Petitioner] didn't do it." The State argues that this defense may preclude a criminal defendant from requesting a lesser included offense instruction.

13 See State v. Dellinger, 178 W.Va. 265, 358 S.E.2d 826 (1987) (holding that, under certain facts, sexual abuse in the first degree is a lesser included offense of sexual assault in the first degree.)

Although the crime of attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree, this Court has previously concluded that the crime of sexual abuse in the first degree is a lesser included offense of sexual assault in the first degree under certain facts. See State v. Dellinger, 178 W.Va. 265, 358 S.E.2d 826 (1987) (per curiam). While Petitioner argued that it was error for the circuit court to fail to instruct the jury on attempted sexual assault in the first degree, counsel conceded that if Petitioner objected to the lesser included offense instruction of sexual abuse in the first degree (which he did below), he cannot complain and would have waived that issue. Accordingly, Petitioner's counsel essentially conceded the issue relating to the lesser included offense instruction during oral argument.

While the circuit court focused on Petitioner's failure to submit a written instruction and its belief that the evidence did not support giving such an instruction, we find that the more compelling fact is that, pursuant to the standard set forth in State v. Neider as well as this Court's prior holding in State v. Franklin, attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree.¹⁴Accordingly, the circuit court did not err in declining to give the requested instruction.

14 "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

B. PHOTOGRAPHIC IDENTIFICATION

Petitioner's second and third assignments of error relate to a pretrial photographic identification, and for ease of reference, we will address both assignments together. In his second assignment of error, Petitioner alleges that the circuit court erred by denying his motion for a mistrial that was made after he learned of a pretrial photographic identification during his trial. In his third assignment of error, Petitioner argues that the circuit court compounded this error by denying his motion for an in camera hearing on the suggestibility of the pretrial photographic identification.

The record reflects that Petitioner first learned of a pretrial photographic identification during the cross examination of A.M.'s mother, M.F. M.F. testified that Sergeant Dean showed her a picture of Petitioner and she identified the person in the photograph as Dayo. M.F. did not know whether the photograph had been shown to A.M. After M.F. completed her trial testimony and after she was excused, Petitioner moved for a mistrial. Following a recess, the circuit court heard arguments regarding the motion for a mistrial. The circuit court denied Petitioner's motion, concluding that the photograph was used to confirm that the person in the photograph was Dayo, not to identify Dayo.

Petitioner concedes that there are various remedies available to a circuit court when there has been a discovery violation.

Rule 16(d)(2) [of the West Virginia Rules of Criminal Procedure] provides that where there has been noncompliance with legitimate discovery requests, a circuit court, in addition to ordering immediate disclosure, granting a continuance, and excluding evidence, "may enter such other order as it deems just under the circumstances." This broad language justifies

the adding of several other remedies or sanctions to the list such as (a) advising the jury to assume the existence of facts that might have been established by the missing information, (b) holding the violator in contempt of court, (c) granting a mistrial, and (d) dismissing the charges.

State ex rel. Rusen v. Hill, 193 W.Va. 133, 140, 454 S.E.2d 427, 434 (1994). Importantly, "[w]hich remedy is preferable is best left to the discretion of the circuit court." Id.

The remedy sought by Petitioner was a mistrial. Petitioner did not seek a continuance or any of the other possible remedies. The circuit court concluded that a mistrial was not appropriate. This Court has previously held:

[t]he decision to declare a mistrial, discharge the jury and order a new trial in a criminal case is a matter within the sound discretion of the trial court. A trial court is empowered to exercise this discretion only when there is a "manifest necessity" for discharging the jury before it has rendered its verdict. This power of the trial court must be exercised wisely; absent the existence of manifest necessity, a trial court's discharge of the jury without rendering a verdict has the effect of an acquittal of the accused and gives rise to a plea of double jeopardy.

State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983) (citations omitted). "Before a manifest necessity exists which would warrant the declaring of a mistrial and the discharging of the jury and ordering a new trial, the circumstances must be prejudicial, or appear to be prejudicial, to the accused or the state." Syl. Pt. 3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972).

The circuit court's denial of Petitioner's motion for a mistrial is reviewed under an abuse of discretion standard. State v. Lowery, 222 W.Va. 284, 664 S.E.2d 169, (2008). We must now determine if "manifest necessity" existed requiring the circuit court to declare a mistrial. In making this determination, we are guided by our prior decisions regarding discovery violations and out-of-court identifications.

"The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case." Syl. Pt. 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994). While Petitioner was surprised by M.F.'s testimony regarding an out-of-court photographic identification, we are not persuaded that this violation meets the second prong of Rusen.

Although Petitioner asserts that the circuit court's ruling was based, in part, "on a difficult-to-comprehend assertion that the suggestive photo was not presented to A.M.'s mother for identification, but only for a 'a confirmation of it,'" we disagree with Petitioner's characterization. Even if we were to find that the out-of-court identification was suggestive, the question we must then decide is whether "under the totality of the circumstances" the identification was reliable.

In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the

witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Syl. Pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976) (abrogated on other grounds by State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

Significantly, the photographs were not used to identify an unknown assailant. Instead, they were used to confirm that the individual in the photograph was Dayo, the person A.M. identified as the perpetrator from the moment she disclosed the assault. Of particular significance is the fact that A.M. did not see the photographs and the record does not reveal that A.M. even heard discussion relating to the photographs. The jury heard testimony that M.F. knew Petitioner and that he had been to her house "[a] couple of times. Maybe four." The jury also heard that Petitioner had contact with A.M. and her brother and that Petitioner gave M.F. presents for the children. Accordingly, the victim, A.M., did not identify the Petitioner based on the photographs and the evidence clearly established that A.M.'s mother, M.F., knew the Petitioner independent of the photographs.¹⁵

15 Petitioner also asserts that the circuit court compounded the error regarding the photographic identification by denying his motion for an in camera hearing on whether an in-court identification would be tainted by an unduly suggestive out of court identification. Petitioner's arguments in support of this assignment of error are difficult to follow. Petitioner argues that he "moved for both an in camera hearing on the admissibility of the out-of-court identification and a mistrial based on the late disclosure." The State argues that Petitioner did not move for an in camera hearing and, therefore, waived this assignment of error. A review of the trial transcript reveals that Petitioner moved for a mistrial, not an in camera hearing. Further, in his reply before this Court, Petitioner acknowledges that "an in camera hearing would [have] be[en] meaningless … because the in-court identification had already occurred." The in camera hearing Petitioner refers to is generally known as a "Casdorph hearing." See State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976) (abrogated on other grounds by State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982). As we noted, supra, Petitioner only moved for a mistrial. He did not move for a continuance. Further, in support of his motion for a mistrial, his counsel stated "there is no remedy for [the failure to disclose] other than a mistrial."

For these reasons set forth herein and under the facts of this case, the circuit court did not abuse its discretion when it denied Petitioner's motion for a mistrial with respect to the photographic identification. Accordingly, we affirm the circuit court's decision in this regard.

C. AMBUSH & VOUCHING

In his final assignment of error, Petitioner combines two complaints: (1) the State ambushed him when A.M. allegedly testified contrary to the discovery that was provided; and (2) the State improperly vouched for A.M.'s credibility during its closing arguments.¹⁶ We find no merit to Petitioner's arguments in this regard.

16 Petitioner's specific assignment of error in this regard is that the circuit court erred in denying his motion for a mistrial regarding these alleged errors. Although Petitioner made two motions for a mistrial during the State's closing arguments, it does not appear that he made a motion for a mistrial during the alleged ambush that he claims occurred during A.M.'s trial testimony. Following A.M.'s testimony, the State rested. After the jury was excused from the courtroom, Petitioner made a motion for judgment of acquittal pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure. Since Petitioner made a motion for a mistrial during the State's closing argument and because he combines his claims of ambushing and vouching, we will analyze this assignment of error under the lens of a motion for a mistrial.

Initially, Petitioner asserts that he was ambushed by A.M.'s trial testimony because it was only then that he "first learn[ed]" that A.M. was alleging that penetration occurred. Essentially, Petitioner's argument is that the State committed discovery violations that hampered his trial preparation.

As we noted, supra, "[t]he traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case." Syl. Pt. 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994). Despite Petitioner's argument of surprise, he had been provided, prior to trial, a copy of the grand jury transcript in which Sergeant Dean testified that he had determined, through his investigation, that Petitioner "penetrated, however slight, the female sexual organ of A.M." In fact, the alleged discrepancy between A.M.'s interview with the interviewer at Harmony House and Sergeant Dean's grand jury testimony formed, in part, the basis for Petitioner's Motion to Dismiss the Indictment. Petitioner's motion to dismiss was denied as "untimely and in violation of the Court's Scheduling order." In addition, the circuit court found that Petitioner's motion "appears to summarily highlight conflicts in the evidence rather than providing factual support for allegations of fraud and/or prosecutorial misconduct by the prosecuting attorney." (Emphasis added). Clearly, Petitioner was aware of A.M.'s interview and of Sergeant Dean's grand jury testimony. For these reasons, we are not persuaded by Petitioner's claim that he was ambushed or surprised by A.M.'s trial testimony. Further, we find that the preparation and presentation of Petitioner's case was not hampered by this alleged conflict in the evidence. Significantly, Petitioner did not move for a continuance to allow him to address the alleged "ambush."

In addition to his claim of being ambushed, Petitioner also maintains that the assistant prosecutor "vouched for [A.M.'s] credibility, despite personally knowing that [A.M.] had not been truthful." We begin our analysis with Petitioner's assertion that the State "personally" knew that A.M. had not been truthful.¹⁷ Petitioner was provided discovery regarding A.M.'s forensic interview with interviewer at Harmony House in which it was noted that A.M. denied penetration. During A.M.'s trial testimony, she testified that Petitioner put his hand "a little bit inside my private part." She then clarified that she meant vagina when she used the term "private part." Counsel for Petitioner thoroughly cross-examined A.M. regarding the issue of penetration, and during redirect, A.M. was asked if she knew what the word "penetration" meant. Her answer was "[n]ot really."

17 This claim appears to be directed toward the assistant prosecutor who met with A.M. prior to her trial testimony.

At the time of her testimony, A.M. was eleven years old. According to her trial testimony, the crime occurred during the summer between fourth and fifth grade when she "nine, turning ten." Although Petitioner describes A.M.'s trial testimony as a "last-minute assertion of a lack of understanding of the meaning of the word 'penetration,'" and argues that such assertion "seems improbable," he points to no evidence that A.M. had previously indicated that she knew what penetration meant. Further, the jury heard A.M.'s testimony as well as Petitioner's cross-examination and made a credibility determination, which we will not disturb.

The assistant prosecutor made two statements during closing arguments that resulted in Petitioner motions for a mistrial. First, the assistant prosecutor said:

Probably the most critical, most reliable, most inherently non-tainted evidence in this case is A.M. A.M. came to court today as an 11-year-old child that plays the violin and is in chorus and has so many pets that I can't even remember and now lives with her grandma, and she testified to you, specifically and in detail, about the sexual assault by Dayo, David Ray Thomas. A.M. has no motivation to lie.

Petitioner objected and during a sidebar discussion with the circuit court, counsel for Petitioner argued that the assistant prosecutor was vouching for the credibility of A.M. For this reason, Petitioner moved for a mistrial. The circuit court denied Petitioner's motion but instructed the State not to vouch for credibility. Immediately thereafter, the State made the following statement to the jury: "[y]ou are the trier of facts and you can judge the credibility of the witness - the witnesses."

During the State's rebuttal closing argument, the assistant prosecutor made the following statement: "[t]hat child was so deliberate and factual and just listened to the questions. She wasn't coached. She wasn't lying about issues and saying things." Counsel for Petitioner objected and again moved for a mistrial. The circuit court denied Petitioner's motion for a mistrial but sustained the objection and instructed the jury to disregard the State's last statement.

"It is improper for a prosecutor in this State to '[a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness … or as to the guilt or innocence of the accused….' ABA Code DR7-106(C)(4) in part." Syl. Pt. 3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981). This Court has held that the following

"'[f]our factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of the competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.' Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995)."

Syl. Pt. 1, State v. Hamrick, 216 W.Va. 477, 607 S.E.2d 806 (2004). In addition to articulating the factors to be examined when analyzing an alleged prejudicial prosecutorial remark, Sugg also "clarified that not every improper prosecutorial remark will result in reversal of a conviction: '[a] judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.'" State v. Mills, 219 W.Va. 28, 631 S.E.2d 586 (2005) (quoting Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995)).

The first comment was made during the State's closing argument, and it was immediately followed by the following statement: "[y]ou are the trier of facts and you can judge the credibility of the witness - the witnesses." The second comment occurred during rebuttal closing argument, and was, in part, a response to comments made by Petitioner's counsel that A.M. had been coached into changing her testimony. Petitioner asserts that these comments required the circuit court to declare a mistrial. In support of this argument, Petitioner relies, in part, on two prior decisions of this Court, but his reliance is misplaced as neither of these cases bolster his argument. In State v. England, 180 W.Va. 342, 376 S.E.2d 58 (1988), this Court affirmed a conviction despite the prosecutor saying that two witnesses "were here to tell the truth," and that neither had "something to gain" by testifying against the defendant. In fact, the prosecutor in England concluded: "They [the State witnesses] took an oath to tell you the truth, and I submit to you that that's what they did." Id. at 351, 376 S.E.2d 548, 557 (1988). In State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981), this Court reversed a defendant's criminal conviction because the prosecutor "injected his personal opinion as to the guilt of the defendant, asserted his belief in the honesty, sincerity, truthfulness, and good motives of his witnesses," and also "argued facts not in evidence." Id. at 660-661, 280 S.E. 288, 292. In addition, the prosecutor "compared the defendant to a vulture and appealed to local prejudice by indicating that the defendant came to West Virginia to victimize dumb hillbillies." Id. at 661, 280 S.E.2d 288, 292. Further, the prosecutor "pointed to and directly addressed the defendant." Id. Significantly, and in sharp contrast to the facts of the instant case, this Court noted in Critzer that "no instructions were given to the jury telling them the prosecutor's comments were improper and that they should disregard them." Id. at 661, 280 S.E.2d 288, 292 (1981).

The statements at issue in the instant case were limited, not extensive. With respect to these statements, the assistant prosecutor did not vouch for the truthfulness of any specific statement that A.M. made. The statements at issue did not mislead the jury, and Petitioner has not alleged that they were deliberately placed before the jury to divert attention to extraneous matters. Petitioner's objection to the second statement at issue was sustained, and the jury was instructed to disregard the statement. Importantly, the strength of the evidence that established Petitioner's guilt weighs heavily against a finding that the circuit court erred in declining to declare a mistrial.

We believe that the circuit court "acted within appropriate bounds of discretion"¹⁸ in deciding that the assistant prosecutor's statements, followed by (1) a reminder by the assistant prosecutor that the jury was the trier of fact and could judge the credibility of the witnesses as to the first statement; and (2) a sustained objection and an instruction by the circuit court to disregard the assistant prosecutor's last statement, did not create a manifest necessity requiring a mistrial. For these reasons, we find that the circuit court did not abuse its discretion by denying Petitioner's motions for a mistrial due to vouching.

18 State v. Lowery, 222 W.Va. at 288, 664 S.E.2d at 173.

IV. CONCLUSION

Therefore, for the reasons set forth herein, the decision of the Circuit Court of Ohio County is affirmed.

Affirmed.

Wooton, Justice, dissenting:

In what appears to be its single-minded determination to uphold the conviction of a particularly unsympathetic defendant accused of a particularly reprehensible crime, the majority has sub silentio overruled decades of settled law and failed "to hold the balance nice, clear and true between the State and the accused," thus denying petitioner David Ray Thomas ("the petitioner") due process of law. See Tumey v. Ohio, 273 U.S. 510, 532 (1927). For these reasons, I respectfully dissent.

I.

The majority holds that the petitioner was not entitled to an instruction on attempt to commit sexual assault in the first degree because attempt to commit the crime is not a lesser included offense thereof ^[1] and because in any event there was no evidence to support the instruction. I disagree as to both conclusions. In my view, under the facts and circumstances of this case the petitioner was entitled to have the jury instructed on attempt, and the circuit court's refusal to do so constituted reversible error.

[1] Although the statement of law articulated in syllabus point six of the majority opinion applies by its express terms only to sexual assault in the first degree, the Court's rationale as explicated in the opinion would apply to any criminal offense, without exception. See text infra.

In reaching its legal conclusion, the majority relies on inapposite case law, cites a seventy-year-old decision that simply cannot bear the weight put upon it, and ignores the clear command of Rule 31(c) of the West Virginia Rules of Criminal Procedure, which provides that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."^[2] (Emphasis added).

[2] The majority's attempt to reconcile its decision with the clear and unambiguous language in Rule 31(c) is difficult to follow. As the majority correctly notes, the rule contains disjunctive language that allows a defendant to be found guilty of either a lesser included offense or an attempt to commit the offense charged, the latter of which the majority characterizes as a "lesser offense" as opposed to a "lesser included offense." The majority then explains that

[l]esser included offenses offer a criminal defendant the benefit of mitigation for not having committed some extra element of the greater offense that is tantamount to greater culpability. The inchoate crime of attempt, by contrast, is a "lesser offense" because it offers the defendant mitigation insofar as the crime intended was not accomplished either by choice or by happenstance.

If one accepts the majority's distinction between "lesser included offenses" and "lesser offenses," then syllabus point six of the majority's opinion is mere dicta because the issue in this case isn't whether attempt to commit first-degree sexual assault is a lesser included offense of first-degree sexual assault; under the majority's analysis, attempt can never be a lesser included offense of any crime. No, says the majority, attempt is simply a "lesser offense" where the evidence shows that the crime was intended but was not accomplished either by choice of by happenstance. Because there was evidence in the instant case to support a finding that this is exactly what happened here, the petitioner was entitled to have the jury instructed on attempt.

It is noteworthy that with one exception, see text infra, none of the cases upon which the majority rely involve the issue presented here: whether attempt to commit the crime charged is a lesser offense of that crime.^[3] It is readily apparent that the analytical framework in these cases, which centers on the question of whether it is possible to commit the crime charged ("the greater offense") without having first committed the lesser offense,^[4] is wholly different from that in the instant case. In that regard, the circuit court instructed the jury that it could convict the petitioner of first-degree sexual assault if it found that

[3] See State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013) (whether battery is a lesser included offense of robbery); State v. Bell, 211 W.Va. 308, 565 S.E.2d 430 (2002) (whether brandishing is a lesser included offense of wanton endangerment with a firearm); State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on other grounds by State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994) (whether larceny is a lesser included offense of burglary); State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982) (affirming the holding of Louk but finding that the defendant had not contested the particular elements that distinguished the two offenses); State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997) (per curiam) (whether wanton endangerment is a lesser included offense of malicious assault); and State v. Dellinger, 178 W.Va. 265, 358 S.E.2d 826 (1987) (per curiam) (whether sexual abuse in the first degree is a lesser included offense of sexual assault in the first degree).

[4] See Bell, 211 W.Va. at 311, 565 S.E.2d at 433.

[o]n or about May 1, 2016 and July 8, 2016, [the petitioner] did engage in sexual intrusion with another person, A.M., by penetrating, however slight, the female sex organ of A.M. for the purpose of degrading or humiliating A.M. or for the sexual desire of [the petitioner]. When [the petitioner] was 14 years old or more and A.M. was younger than 12 years old and when A.M. was not married to [the petitioner].

In its most basic formulation, the petitioner's argument is that the evidence of record could support a finding that although he tried, he didn't manage to complete a sexual assault because, as A.M.'s case worker testified at trial, A.M. initially "denie[d] penetration. She says that the incident stopped when [the petitioner] heard the bathroom door open." See Syl. Pt. 4, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009) ("In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." (citation omitted)).^[5]

[5] West Virginia Code section 61-11-8 (2020) provides, in relevant part, that

Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows:

. . . .

(2) If the offense attempted be punishable by imprisonment in the penitentiary for a term less than life, such person shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be imprisoned in the penitentiary for not less than one nor more than three years, or be confined in jail not less than six nor more than twelve months, and fined not exceeding five hundred dollars.

It is well established in our law - and, critically, in the procedures followed by prosecutors and defense attorneys every day in the circuit courts of this State - that the attempt to commit a crime is a lesser included offense of that crime. See, e.g., State v. Slater, No. 16-1129, 2017 WL 4772888, at *1 (W.Va. Oct. 23, 2017) (memorandum decision) (the defendant was indicted on one count of delivery of a controlled substance, after which "[h]e entered into a plea agreement with the State whereby he agreed to plead guilty to attempt to commit a felony, a lesser-included offense."); State v. James F., No. 15-0194, 2016 WL 2905508, at *1 (W.Va. May 18, 2016) (memorandum decision) (the defendant was indicted on two counts of first degree sexual assault and two counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust, after which he "pled guilty to two counts of attempt to commit first degree sexual assault and one count of attempt to commit sexual abuse by a parent. The written plea agreement stated that the three felony attempt counts to which he was pleading guilty were 'lesser-included offense(s) of Counts 1, 2, and 3 of the Indictment.'"); State v. Michael Austin S., No. 14-0133, 2015 WL 7304499, at *3 (W.Va. Nov. 19, 2015) (memorandum decision) (pursuant to the defendant's plea, the circuit court adjudged him "guilty of felony offense of Attempt to Commit a Felony, a lesser included offense of 1st Degree Sexual Assault as contained in Count I of the Indictment in this case; upon conviction for the felony offense of Attempt to Commit a Felony, a lesser included offense of Sexual Abuse by a Parent, Guardian or Custodian, as contained in Count II of the Indictment in this case; and upon conviction for the felony offense of Attempt to Commit a Felony, a lesser included offense of 1st Degree Sexual Assault, as contained in Count III of the Indictment."); State v. Sykes, No. 13-1283, 2015 WL 508188, at *1 ( W.Va. Feb. 6, 2015) (memorandum decision) (the defendant was indicted on one charge of child abuse causing serious bodily injury and one count of child neglect causing serious bodily injury, and "pled guilty to one count of attempt to commit child abuse causing serious bodily injury, a lesser included offense of count one of the indictment, and to one count of attempt to commit child neglect causing serious bodily injury, a lesser included offense of count two of the indictment.").

Indeed, the case upon which the majority most heavily relies, State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953), states clearly - and often - that "[i]t is well settled in this jurisdiction that one who acts as the principal in the first degree in the commission of rape, may, under an indictment charging him with rape, and on evidence sufficient to warrant a conviction of rape, be convicted of an attempt to commit rape," id. at 52, 79 S.E.2d at 697; that "it would seem by the very statute itself [West Virginia Code section 61-11-8]^[6] that a constituent element of an attempt to commit a crime is the failure or the prevention of the attempt[,]" 139 W.Va. at 54, 79 S.E.2d at 698; that "[i]n the Collins [State v. Collins, 108 W.Va. 98, 150 S.E. 369 (1929)] case . . . this Court simply held that embraced in the evidence tending to establish defendant's actual and physical raping of prosecutrix, there was the minor offense of the attempt to commit the crime of rape[,]" 139 W.Va. at 56, 79 S.E.2d at 699; and that "[i]t seems to be well established in the Virginias that . . . a conviction for an attempt to commit the crime charged in the indictment will be sustained, where the defendant is the principal in the first degree[.]" 139 W.Va. at 58-59, 79 S.E.2d at 701. In short, our relevant precedents - those which concern the issue actually presented in this case - reveal that attempt to commit a crime is always a lesser included offense in a case where the defendant is charged as a principal, and that the language of Rule 31, "[t]he defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit . . . the offense charged[,]" accurately reflects our longstanding practice in this regard.

[6] See supra note 5.

Ignoring all of the above, the majority zeroes in on one sentence contained in syllabus point four of Franklin: "the failure or prevention of the accused to commit the offense attempted is as much an element of the attempt to commit the offense as the immediate specific intent to commit the offense and an overt act in furtherance of such intent." 129 W.Va. at 43, 79 S.E.2d at 693, Syl. Pt. 4, in part. From this the majority springboards to the conclusion that "[t]he crime of attempted sexual assault in the first degree requires an element that is not required in the greater offense, namely the failure or prevention of the accused to actually commit the offense" and thus cannot be a lesser included offense. This cursory analysis is fatally flawed in two respects. First, the syllabus point is recited by the majority without any consideration of the issues actually raised and resolved in the Franklin opinion - an approach that, ironically enough, the Franklin Court specifically counselled against: "The syllabus of the case must, of course, be read in the light of the opinion." Id. at 57, 79 S.E.2d at 700 (citations omitted). The issue in Franklin was not whether attempt to commit rape was a lesser included offense of rape, because the Court noted multiple times that it is, see text infra; rather, the issue was whether a defendant could be found guilty of attempt to commit a rape in a case where

under the evidence, if he acted at all in a criminal way, [he] aided and abetted the principal perpetrator of the crime [by holding the victim's legs as the principal perpetrator raped her]. Under the evidence in this case, the jury should have found the defendant guilty of rape as principal in the second degree or not guilty.

Id. at 62, 79 S.E.2d at 702-03. Second, the majority's Franklin-based rationale - that the crime of attempt "requires an element that is not required in the greater offense, namely the failure or prevention of the accused to actually commit the offense" - would apply to the vast majority of all criminal offenses. Thus, in all but a handful of cases (those where attempt is specifically criminalized in the text of the criminal statute) the State can no longer agree to allow the defendant to plead guilty to attempt without first going through the process of securing a superseding indictment or an information that specifically charges that offense.^[7] And in the myriad cases where such pleas have been entered, this Court can reasonably expect a flood of habeas petitions from individuals who have pled guilty to a crime - attempt - with which, according to the majority, they were never charged.

[7] It is worth recalling that "[a]t common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. Beck v. Alabama, 447 U.S. 625, 633 (1980) (emphasis added).

To the extent that the majority opinion can be read as accepting the circuit court's determination that there was no evidence to support an instruction on attempt, I disagree with this as well. The victim's case worker testified that in A.M.'s initial interview, she "denie[d] penetration. She says that the incident stopped when [the petitioner] heard the bathroom door open." Further, during cross-examination defense counsel took A.M. through the salient points of her interview with Child Protective Services ("CPS"), including the following:

Q: Do you remember telling [the interviewer] that there was no penetration?

A: Yes.

Q: Was that true?

A: Yes.

(Emphasis added). In light of this testimony, I fail to see how the circuit court concluded that there was no evidence to support an instruction on attempt. In my view, if the jury believed that A.M.'s initial recounting of events was accurate, which A.M. specifically affirmed at trial, then it could reasonably have concluded that the petitioner "attempt[ed] to commit an offense, but fail[ed] to commit it" and was thus guilty of attempt. See W.Va. Code § 61-11-8; see also supra note 5.

Finally, the majority suggests, but does not go so far as to hold, that the petitioner was not entitled to an attempt instruction because "he relied on a misidentification defense, not mitigation for a crime that he failed to complete because he was interrupted during its commission." In support of this suggestion, the majority cites the following statements of counsel made during closing argument: "Something may have happened to this child. I don't know. Let me tell you, that man [the petitioner] didn't do it."

This is not a misidentification argument and, based on my review of the record in this case, it is clear that the petitioner did not mount a misidentification defense. His counsel did not contend, either through his questioning on cross-examination of the State's witnesses or his arguments to the jury, that A.M. and her mother were mistaken or confused as to the identity of the perpetrator. Rather, the petitioner's defense was simply that he hadn't committed the crime. And in any event, I strongly disagree with any implication that a criminal defendant can have one, and only one, defense, a notion the majority attributes to this Court's opinion in State v. Spinks, 239 W.Va. 588, 803 S.E.2d 558 (2017). But Spinks says no such thing; rather, the Court found that defendant Spinks was not entitled to have the jury instructed on the lesser included offenses of second-degree murder or manslaughter because he "did not present any evidence from which the jury could have concluded that [he] killed Elizabeth without premeditation. Nor did he claim that he was suddenly provoked by something Elizabeth said or did." Id. at 609, 803 S.E.2d at 579. Therefore, we concluded, "[b]ecause there was no evidence relating to second-degree murder or manslaughter introduced at trial, the circuit court was not required to give an instruction on lesser-included offenses and its failure to do so was not plain error." Id. at 610, 803 S.E.2d at 580. In short, the defendant's problem in Spinks was purely an evidentiary one: there was no evidence in the record upon which a jury could base a finding of guilt on any lesser included offenses.

In summary, the petitioner was entitled to an instruction on attempt, and the circuit court's refusal to give one was reversible error. In this regard, our law provides:

"In State v. Stalnaker, 167 W.Va. 225, 279 S.E.2d 416 (1981), this Court noted that 'a trial court must give an instruction for a lesser included offense when evidence has been produced to support such a verdict.' Id. at 227, 279 S.E.2d at 417, citing State v. Cobb, 166 W.Va. 65, 272 S.E.2d 467 (1980). Further, 'it is reversible error for a trial court to refuse to instruct a jury on lesser offenses charged in the indictment if there is any evidence in the record to prove such lesser offenses[.]' State v. Wayne, 162 W.Va. 41, 46, 245 S.E.2d 838, 842 (1978), overruled on other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983)[.]"

Bell, 211 W.Va. at 311, 565 S.E.2d at 433; see also Syl. Pt. 2, State v. Shingleton, 222 W.Va. 647, 671 S.E.2d 478 (2008) (per curiam) ("'Where there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so.' Sy. Pt. 7, State v. Alie, 82 W.Va. 601, 96 S.E. 1011 (1918).").

II.

There are two other issues in the case which require brief discussion; although both involve rulings or conduct during the trial which I consider to be error, neither standing alone is reversible error. However, as set forth infra, errors cannot always be compartmentalized into individual boxes marked "harmless" and "reversible"; especially in a case where the State's evidence is weak, every error may constitute another brick in the proverbial wall. In my view, this is such a case. See Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) ("Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.").

I turn first to an issue whose analytical roots are found in two distinct lines of case law. The petitioner alleges (and the State does not dispute) that while he was cross examining A.M.'s mother at trial he learned for the first time that in the initial stages of the police investigation she had been shown a photograph of the petitioner and asked, "is this Dayo?" This raises two questions: whether the procedure utilized by the police was a prejudicial "show-up," and whether the State's failure to apprise counsel of this information was a violation of Brady v. Maryland, 373 U.S. 83 (1963).

In my view, the first question is an easy one. As this Court acknowledged in State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975),

[i]t is true that where an accused is identified at a showup at a police station it could be the result of a suggestive atmosphere, and once a witness has identified the accused at the showup he is not prone to change his opinion; thus such evidence should be scrutinized with care.

Id. at 679, 213 S.E.2d at 115 (citing United States v. Wade, 388 U.S. 218 (1967)); cf. State v. Rummer, 189 W.Va. 369, 381, 432 S.E.2d 39, 51 (1993) ("Without question, almost any one-on-one confrontation between a victim of a crime and a person whom the police present to him as a suspect must convey the message that the police have reason to believe him guilty. The psychological factors [present] create a real risk of misidentification in such circumstances. . . . [One must] start then from the premise that significant suggestion is inherent in the use of any showup[.]") (citing U.S. ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir.), cert. denied, 421 U.S. 1016 (1975)). In the instant case, the circuit court's tortured attempt to distinguish between showing a witness a photograph for purposes of identification of the accused and showing it for purposes of "confirming" an identification of the accused is entirely insupportable; when police officers showed A.M.'s mother a photograph of the petitioner and asked, "is this Dayo?", this was unquestionably a "show-up" under our precedents. See State v. James, 186 W.Va. 173, 177, 411 S.E.2d 692, 696 (1991) ("Clearly, an 'array' of one photograph is impermissibly suggestive. . . . Single photograph identifications raise grave concern about the reliability of the witness's identification, and this Court will not accept them.").

However, the dispositive question as to the "show-up" - again, considering this issue standing alone - is whether the mother's identification of the petitioner at trial was "so tainted as to require suppression of an in-court identification[,]" Syl. Pt. 3, in part, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976). Based on the facts of record the answer must be no, as not only A.M.'s mother but also the child herself testified that Dayo was well known to them, having been to their home on several occasions.

As noted supra, the particular circumstances of this "show-up" also raise a Brady issue, since it is undisputed that the State never provided defense counsel with any of the information recited above. Although the prosecutor professed to be just as surprised as defense counsel (and we have no reason to disbelieve this), it is firmly established in our law that

[a] police investigator's knowledge of evidence in a criminal case is imputed to the prosecutor. Therefore, a prosecutor's disclosure duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of evidence that is known only to a police investigator and not to the prosecutor.

Syl. Pt. 1, State v. Youngblood, 221 W.Va. 20 650 S.E.2d 119 (2007). The problem here is that because the "show-up" issue arose in the middle of the trial, there has been virtually no factual development as to exactly what happened and what was said during the police interview of A.M.'s mother. Accordingly, there is no basis upon which this Court could make a threshold determination as to whether the State's failure to produce the evidence deprived the petitioner of information that would have been favorable, either as exculpatory or impeachment evidence, had it been timely disclosed; or whether the State's failure to produce the evidence was prejudicial. See Syl. Pt. 3, Buffey v. Ballard, 236 W.Va. 509, 782 S.E.2d 204 (2015) ("There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.").

The second issue is the petitioner's claim that the prosecutor's statements vouching for the credibility of A.M. during closing argument - and make no mistake, that is exactly what the prosecutor was doing - were far over the line of permissible argument. See Syl. Pt. 2, in part, State v. Hamrick, 216 W.Va. 477, 607 S.E.2d 806 (2004) ("It is improper for a prosecutor in this State to '[A]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness ... or as to the guilt or innocence of the accused....' ABA Code DR7-106(C)(4) in part.") (emphasis added). In this case, the State was not content to vouch for A.M.'s credibility once; the prosecutor did it twice.

Had the circuit court not promptly intervened, first by giving a curative instruction and then by sustaining defense counsel's objection, thus shutting things down, I would have found the statements, standing alone, to be reversible error. A prosecutor

may prosecute with earnestness and vigor -indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212 (1960).

I conclude by returning to my earlier observation that although the petitioner's second and third errors were not so prejudicial, standing alone, as to require reversal, the cumulative effect of the three errors in this case lead me to the conclusion that the petitioner did not receive a fair trial. I come to this conclusion because, as noted, evidence of the petitioner's guilt was not strong. The victim, A.M., initially stated that there had been no penetration and then affirmed the truth of that statement at trial; and further, the statements and testimony of A.M. and her mother were diametrically opposed as to whether A.M. had ever disclosed the sexual assault at or near the time of its alleged occurrence.^[8] In a bare-bones case such as this, the prejudicial effect of multiple errors cannot be denied. To the extent that there is any uncertainty as to what I see as clear reversible error in the circuit court's refusal to give an instruction on attempt, the cumulative effect of these two additional errors, combined with the court's failure to instruct on attempt, removes all doubt; this case should be reversed and remanded for a new trial.

[8] In their respective pretrial statements, A.M. said that she had immediately disclosed to her mother, which her mother adamantly denied. In their respective trial testimony, the mother now insisted that A.M. had immediately disclosed to her, which A.M. now adamantly denied.

For the reasons expressed herein, I respectfully dissent.