State of West Virginia v. Chad M. Eldredge (Justice Bunn, dissenting, joined by Justice Armstead)

• Court: West Virginia Supreme Court
• Decided: May 22, 2025
• Docket: 23-81
• Status: Separate

Opinion

FILED No. 23-81, State v. Eldredge May 22, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK BUNN, Justice, dissenting, and joined by Justice Armstead: SUPREME COURT OF APPEALS OF WEST VIRGINIA

The majority incorrectly reverses the petitioner’s jury conviction for one

count of second-degree sexual assault and remands this case for a new trial. The majority

determined that the circuit court committed two reversible errors during the State’s cross-

examination of a defense witness, R.E., the victim’s mother: (1) the circuit court required

the witness to answer its own question regarding the witness’s pending criminal charge,

which was impermissible under West Virginia Rules of Evidence 609(a)(2) and 608(b), and

when that evidence was not admissible under a bias exception; and (2) the circuit court

committed plain error and violated West Virginia Rule of Evidence 614(b) by questioning

the witness about sexual devices that she stated that she provided to the victim. The

majority argues that together, these errors damaged the witness’s credibility to an extent

that affected the outcome of the trial, noting that had the jury believed “the upshot of [the

witness’s] testimony,” that the victim lied, then Mr. Eldredge could have been acquitted. I

disagree.

Instead, the petitioner’s conviction should have been affirmed because:

(1) the circuit court’s error in eliciting evidence of the defense witness’s pending criminal

charge was harmless; and (2) the court’s questions about providing sexual devices to her

teenage daughter neither violated Rule 614(b) nor amounted to plain error. Accordingly, I

1 respectfully dissent. After briefly setting forth facts relevant to both issues, I address each

of these issues in turn.

This case concerned allegations that Mr. Eldredge sexually abused G.Y. She,

G.Y., raised these allegations when she was eighteen, explaining that Mr. Eldredge sexually

abused her while she was ages twelve through seventeen, a period of time that he was her

stepfather. A grand jury indicted Mr. Eldredge on seventeen counts relating to these

accusations. After the circuit court entered a judgment of acquittal on two of the counts

during trial, Mr. Eldredge was ultimately convicted of only Count Four of the indictment,

sexual assault in the second degree, which regarded an allegation that he inserted “his penis

into the mouth of said G.Y., without G.Y.’s consent, and the lack of consent resulted from

forcible compulsion.” Of particular relevance to the assignments of error, the jury acquitted

him of Count Fifteen, which alleged in part that he “penetrat[ed] the vagina of said G.Y.

with an object, without G.Y.’s consent,”1 and related counts Sixteen and Seventeen, which

also related to the insertion of an object into G.Y.

A. Pending Criminal Charge

While the circuit court’s question about the witness’s pending charge was

error, it was harmless. After the State rested its case, Mr. Eldredge’s witness, his ex-wife

and the mother of the victim, R.E., testified that her daughter’s accusations against Mr.

1 See West Virginia Code § 61-8B-4. 2 Eldredge arose first after G.Y got in trouble at school, then again after R.E. told G.Y. she

needed to “take some time off from seeing her boyfriend.” Her direct testimony was not

long, only approximately nine pages of the trial transcript. On cross-examination, the

witness explained that while Mr. Eldredge had been in jail, and although they were

divorced, they talked on the phone. She provided funds to a JailATM account, which she

would refill so he could call her collect. At a sidebar, the State asked the circuit court

whether it could ask about her pending fraud charges that arose from using another person’s

credit card to pay for that jail account. Over Mr. Eldredge’s objection, the circuit court told

the State in open court to “ask the question about whether she’s been charged.” The State

asked about the circumstances where R.E. used her sister’s credit card to fund Mr.

Eldredge’s account, but did not ask about the pending charges. R.E. explained that she put

her sister’s credit card on the account with permission, never used it, then “forgot to remove

it off the account.” A few months later, when R.E. put more funds on the account, her own

card had no funds on it. She stated that she “used [her sister’s] card as a backup.” After

three transactions, she “noticed what was going on[,]” took her sister’s credit card off, “and

it was never used again.” The court then asked R.E. directly whether she had pending

charges for fraudulently using a credit card, which she admitted.2

2 The State asked her follow-up questions, including when the activity occurred, whether the charges were “pending here in Fayette County[,]” which R.E. confirmed, where she lived at the time, and whether the name on the jail account was Mr. Eldredge’s, which R.E. also confirmed. 3 I agree with the majority’s determination that the circuit court erred by

questioning a defense witness, R.E., regarding her pending criminal charge, but I would

have found this error to be harmless. When determining whether error is harmless, we

“analyze the impact of the error on the jury verdict.” State v. Atkins, 163 W. Va. 502, 514,

261 S.E.2d 55, 62 (1979). In performing this analysis, “[t]he more tangential the error to

the ultimate issue of guilt, the less likely its prejudicial impact.” Id. Here, this error had

little, if any, impact on the jury’s consideration of R.E.’s testimony. She had already

admitted the underlying conduct regarding using her sister’s credit card to contact Mr.

Eldredge in response to proper questioning by the State. The additional information

regarding the pending charge elicited by the circuit court’s improper question could not

have significantly impacted the jury’s ability to properly weigh R.E.’s testimony.

Furthermore, the improper information regarding R.E.’s pending charge had little to no

effect on the ultimate issue of guilt; that is, whether Mr. Eldredge sexually abused G.Y.

because, unlike G.Y., R.E. was not offering direct evidence as to that issue. Rather, R.E.’s

testimony primarily regarded the circumstances surrounding G.Y.’s allegations against Mr.

Eldredge.

B. Other Questions by the Circuit Court

The circuit court’s other questions at trial were not error, and certainly not

reversible error. At trial, G.Y. testified generally regarding instances where Mr. Eldredge

touched her vagina and performed oral sex on her, as well as a specific incident where he

grabbed her ponytail and put his penis into her mouth. She also described an incident where

4 he used an orange sex toy on her, which she testified he had given her previously. As the

majority noted, she told the jury that her brother slept on the couch next to her during this

incident, and Mr. Eldredge stopped when her brother began to awaken.

When R.E. testified as a defense witness, she stated that she, not Mr.

Eldredge, provided the sex toys to G.Y. Defense counsel asked R.E., “Was there a time

where you gave [G.Y.] an unusual gift?” R.E. replied affirmatively, testifying that she gave

G.Y. two vibrators when she “start[ed] to become sexually active” so she could “explore

her own sexuality, so she wouldn’t be off doing it with the boys.” R.E. explained, “So, I

was like, here, do it this way if you’re curious and just handed them to her and told her to

put them up somewhere.” She described one of the vibrators as black but could not

remember the color of the other one.

During cross-examination by the State, R.E. admitted that her daughter, G.Y.,

was fifteen or sixteen when R.E. gave her the sex toys. She also clarified the provision of

the vibrators, that she “didn’t buy them for [G.Y.]; I already had em [sic].” The State’s

attorney asked, “So, they were ones that you had already used?” R.E. replied, “No, I hadn’t

used them; I just had em [sic].”

After defense counsel finished redirect on another issue, the circuit court also

asked R.E. a few questions regarding her giving her teenage daughter two vibrators. The

circuit court stated, “you’ve testified that you gave your daughter, who was 15 or 16 years

5 of age, two vibrators. What did you intend for her to do with those two vibrators?” R.E.

responded, “She was curious about her sexuality.” “Do what?” the court replied. R.E.

continued, “She was curious about her sexuality, to explore it, that way instead of going

out and trying to do it with--.” The court followed up by asking (1) whether R.E. intended

her daughter to use them on herself, to which she answered “[i]f she wanted to[]”;(2)

whether she demonstrated their use, to which she responded “[n]o[]”; and (3) whether she

“discuss[ed] that with the Defendant,” to which she answered “[n]o.” The circuit court

finally asked, “Why did you think that was a good idea?” R.E. responded, “Because I’d

rather her do it with that than go out and do it with some boy.” Mr. Eldredge did not object

to this line of questioning.

Pursuant to Rule 614(b) of the West Virginia Rules of Evidence, a trial court

may question witnesses impartially. Syl. pt. 3, State v. Farmer, 200 W. Va. 507, 490 S.E.2d

326 (1997). Yet, when a defendant alleges that a trial court’s questions affected the

impartiality of the jury, we must examine the record as a whole:

Where a defendant on appeal in a criminal case asserts that a trial court’s questioning of witnesses and comments prejudiced the defendant’s right to present evidence and jeopardized the impartiality of the jury, this Court upon review will evaluate the entire record to determine whether the conduct of the trial has been such that jurors have been impressed with the trial judge’s partiality to one side to the point that the judge’s partiality became a factor in the determination of the jury so that the defendant did not receive a fair trial.

6 Syl. pt. 3, State v. Thompson, 220 W. Va. 398, 647 S.E.2d 834 (2007). Certainly, judges

should not “intimate any opinion” about the credibility of witnesses before the jury. Syl.

pt. 4, in part, State v. Burton, 163 W. Va. 40, 254 S.E.2d 129 (1979) (“With regard to

evidence bearing on any material issue, including the credibility of witnesses, the trial

judge should not intimate any opinion, as these matters are within the exclusive province

of the jury.”). And, furthermore “[a] criminal defendant is entitled to an impartial and

neutral judge.” Syl. pt. 7, in part, Thompson, 220 W. Va. 398, 647 S.E.2d 834.

Yet, the record here shows no evidence of partiality or violation of these

limitations on a trial judge, and the judge’s conduct did not preclude Mr. Eldredge from

having a fair trial. In Thompson, the Court reversed a conviction when the trial judge “asked

approximately 180 questions of witnesses appearing at trial,” and seven of those questions

were asked of the defendant. Id. at 402-10, 647 S.E.2d at 838-46. The court’s conduct in

this case nowhere compares to that level of the trial judge’s interference into the trial in

Thompson, and the impact of the court’s questions was minimal. The questions were brief

and, for the most part, echoed questions that had already been asked on direct and cross-

examination.

Also, the circuit court’s conduct did not serve to bolster any of the State’s

witnesses, unlike the trial court in State v. Bennett, which used an inadmissible reference

book to rehabilitate a chemist after an “extensive cross-examination.” 172 W. Va. 131,

133-34, 304 S.E.2d 35, 38 (1983) (per curiam). The court appeared to be merely clarifying

7 what may have been a confounding scenario. See State v. York, No. 13-1265, 2015 WL

1881028, at *6 (W. Va. Apr. 23, 2015) (memorandum decision) (finding no error when the

circuit court asked a State’s witness multiple questions to “to clarify two answers he had

already given”).

Additionally, the questions had little impact on the information before the

jury, because at the time the judge asked R.E. these questions, she had already addressed

the issue on direct examination as a witness for Mr. Eldredge, explaining what she provided

to her daughter and why. And, to the extent R.E. had any credibility issues, any bias R.E.

had toward Mr. Eldredge was already established, as she had admitted they stayed in

contact while he was in jail, although he was her ex-husband and his accuser was her

daughter.

Finally, (1) an examination of the entire transcript of this trial; (2) the verdict

returning only one count of conviction; and (3) acquittals of Mr. Eldredge on the remainder

of the counts, including the three counts relating to an “object,” all show that these

additional questions the trial court asked R.E. did not affect the jury’s verdict or affect the

jury’s belief in R.E.’s testimony. Viewing the court’s conduct from the perspective of the

jury, and resisting the temptation to weigh the judge’s motive for asking the questions, the

questions were not prejudicial to Mr. Eldredge. See Thompson, 220 W. Va. at 411, 647

S.E.2d at 847 (“We do not believe that it is necessary to pry into the mind of the trial judge

or to speculate as to his motives in asking questions or making comments during the trial.

8 We need only to view the judge’s conduct from the perspective of the members of the

jury.”). The crux of R.E.’s testimony related to her different account of where G.Y. obtained

the vibrators that were the subject of three counts in the indictment. The jury acquitted Mr.

Eldredge of the counts related to G.Y.’s allegation that he penetrated her with an object,

even after G.Y. testified that he gave the vibrators to her and used one of them on her,

indicating that the jury did not believe G.Y. beyond a reasonable doubt relating to that

episode. The not-guilty verdicts related to that episode also indicate that the jury believed

R.E. regarding the source of the vibrators.

For these reasons, I respectfully dissent from the majority opinion and would

have affirmed Mr. Eldredge’s conviction. I am authorized to state that Justice Armstead

joins me in this dissent.