[126]*126NEELY, Chief Justice:
Paul William Ferrell appeals his conviction before a jury of kidnapping, second degree murder and third degree arson.1 The appellant assigns myriad errors, many of which are so obviously without merit that we find that they are not fairly raised.2 There are, however, four major assignments in this complex and difficult circumstantial evidence case that warrant extensive discussion.
On the morning of Wednesday, 17 February 1988, the victim, Catherine Ford, a resident of Maryland, received a call from a man claiming to be a magistrate at Mt. Storm, in Grant County, West Virginia. The man wanted Ms. Ford to meet him at his office at 3:00 p.m. the same day, to discuss some checks. Later that day, a man claiming to be an undercover officer called Ms. Ford with information concerning a possible investigation of her family’s restaurant by the liquor licensing authorities. Ms. Ford told her family and the restaurant employees to check identifications before selling beer, and then left the restaurant to meet with the alleged undercover officer. Ms. Ford drove her Ford Bronco on route 50 into Grant County, and turned off at the Bismark Road. She has not been seen since.
The prosecution contends that the defendant, Paul Ferrell, used fraud to entice Ms. Ford into Grant County, West Virginia for the purpose of gaining a sexual concession or other advantage from her, and that Mr. Ferrell subsequently murdered Ms. Ford and disposed of her body, burning her vehicle to cover up the crime.
On the same day that Ms. Ford disappeared, two other women received telephone calls from a man purporting to be a magistrate. This man, however, was not a real magistrate; at the time, both magistrates in Grant County, West Virginia, were females and nearby Maryland does not have magistrates.
A Grant County magistrate is usually on duty at a satellite office in the Mt. Storm [127]*127Fire Hall on Wednesdays. Sometime between 10:30 and 11:00 on Wednesday, 17 February 1988 (the day the victim disappeared), the magistrate and her assistant observed Mr. Ferrell using the public pay phone outside of the office. The magistrate told her assistant that the man talking on the phone outside was their new deputy sheriff. Paul Ferrell had recently begun working as a deputy sheriff for Grant County. Mr. Ferrell then went into the truck bay area of the fire hall, where a phone available to the public was located, remained there a while and then left.
At 10:50 a.m. the same day, Robin Tich-nell received a call from a man claiming to be a West Virginia magistrate. The alleged magistrate said that he was conducting an investigation of someone she knew, and needed to question her at the Mt. Storm Fire Hall sometime between 10:00 and 3:00. When she asked who or what the investigation concerned, he would not tell her. Consequently, she refused to leave work to meet him, and he responded that he would have to get in touch with her at a later date.
Another woman who received a strange invitation that same day was Rose Bosley, a part-time postmistress in Gormania who usually worked on Saturdays. The new post office had opened two days before, and did not yet have phone service, so Juanita Bosley, the regular postmistress asked the younger woman to fill in for her while she made telephone calls to various utility companies. While the young woman was filling in, a man telephoned Viola Knotts, an elderly woman who lived across the street from the post office, and asked her to tell Rose Bosley to come and get her mail carrier whose car had broken down between Bismark and Cherry Ridge Road. The Gormania route, however, would not take the carrier to those roads.
From the room in Mr. Ferrell’s family store in which his telephone was located, Mr. Ferrell could see people come and go from the post office, and could also see Ms. Knotts’ residence. Mr. Ferrell’s store was also within sight of the restaurant where Cathy Ford worked.
Kim Nelson lived in the trailer nearest Mr. Ferrell’s trailer on the same driveway off of the Bismark Road, but did not know Paul Ferrell. She testified that between 1:00 and 2:00 p.m. on 17 February 1988, banging and terrified screams emanated from Mr. Ferrell’s trailer for about a minute, followed by a gunshot from the same trailer. A man then drove out in a light blue car. In court Ms. Nelson identified from a photograph that it was Paul Ferrell’s car that she had observed departing. The man drove back one-half hour later, and drove out again later in the afternoon, at which time Ms. Nelson saw a side-view of the driver. On 18 February 1988, Ms. Nelson saw the same man burning something out in back of Paul Ferrell’s rented trailer. Ms. Nelson first learned the man’s name when she recognized Paul Ferrell’s picture in the newspaper after his arrest.
On 18 February 1988, Mr. Ferrell ripped out and burned the carpeting from the master bedroom of his trailer (mobile home), replacing it with new carpeting on the following day. Mr. Ferrell claimed that he did this because of dark stains and dead animal odor. However, when his girlfriend, Cathy Bernard, visited his trailer on 14 February 1988, she had not noticed any stains on the master bedroom carpet, nor any strong odors. Also Mr. Ferrell’s landlord had not noticed any stain or odors in the trailer on 21 January 1988.
Paul Ferrell demonstrated concern about the disappearance of Cathy Ford. On 20 February 1988, when his girlfriend, Cathy Bernard, asked him if he had heard about Cathy Ford’s disappearance, Paul Ferrell said that he had heard about it, that he knew who Ms. Ford was, and that he was afraid that people might suspect him or his brother of involvement in her disappearance. He was afraid because Ms. Ford was last seen heading in the direction of Mt. Storm, where defendant’s trailer was located.
On Sunday, 21 February 1988, Ms. Bernard, before washing Paul Ferrell’s clothes, found in a pocket a note that dealt with two people posing as a young couple and setting someone up by using a fake [128]*128identification card. When Ms. Bernard asked Paul Ferrell about the note later, he seemed concerned, and explained that someone from the liquor board was going around to various places in the area trying to get them to sell liquor to minors, and that the note had something to do with that.3
Paul Ferrell manifested an obsession with Cathy Ford’s disappearance. Perhaps in an attempt to explain why he was obsessed, he told Ms. Bernard that he knew Cathy Ford well, and that they had been intimate about a year before he met Ms. Bernard. However, David Ferrell, defendant’s brother, told Ms. Bernard that he knew nothing about that, and that if Paul had had an affair with Ms. Ford, he would have known something.
On the evening of Friday, 26 February 1988, Paul Ferrell and two other officers met with a private citizen, Vonda Moreland, who wanted advice on organizing a search for Cathy Ford. About an hour and a half after the meeting, Paul Ferrell called Ms. Moreland and asked her if she could call off the search, at least for 48 hours, because the officers had found some solid evidence. Ms. Moreland was unable to reach enough people to call off the search, and when Paul Ferrell called back later in the evening to ask if she had been able to call off the search, she told Mr. Ferrell that she had not been able to do so. Paul Ferrell then told Ms. Moreland, regarding the search scheduled for the following day, to search any place except the Bismark and the Cherry Ridge Roads. When asked why they should not search those roads, Paul Ferrell explained that the evidence was on those roads. Mr. Ferrell was not lying when he said the evidence was on those roads. The Ford Bronco that Ms. Ford was last seen driving was found right along the Stony River off of the Bismark Road. Directly across the river from the Bronco, and running parallel to the Bismark Road, ran the Cherry Ridge Road. Paul Ferrell could reach the spot where the Bronco was burned without going to a main road. His driveway led to a seldom travelled road that led to the site of the burned Bronco. The jury could logically have inferred that Mr. Ferrell discouraged a search of this area because he did not want the searchers to find Cathy Ford’s Bronco.
On 29 February 1988, Mr. Ferrell made a collect call from Uniontown, Pennsylvania to his girlfriend, Cathy Bernard, in which he asked her to call the Ford family to say Cathy Ford was alright. When asked to explain Ms. Bernard’s testimony that he had asked her to make calls claiming she was Cathy Ford, Paul Ferrell told police that on 20 February 1988, (three days after Cathy Ford disappeared), he asked Ms. Bernard to call someone saying Cathy Ford was alright, because he wanted to slow down the investigation so that his telephone calls might not be discovered. On 2 March 1988, Cathy Ford’s parents received a letter postmarked Pittsburgh, 29 February 1988. .(It was stipulated that a letter mailed from Uniontown would be postmarked Pittsburgh.) The letter said:
The only crime here was we had to get rid of the old man’s Bronco right away. Cathy is 19, an adult and we had to leave fast. We came into some dangerous money. So here is some money on the Bronco. More will follow. She will call you when she feels it is safe to do so. We are heading where I can get some work. Cathy made me write so you would not worry. She had to get away from Moon, the restaurant and certain people. We keep the money, her green bank bag. Tell Moon to leave us alone.
Richard Williams, an FBI handwriting expert, testified that the letter and its envelope were both in Paul Ferrell’s handwriting. Enclosed with the letter was the sum of two hundred dollars in twenty dollar bills. On 28 February 1988, Paul Ferrell had withdrawn two hundred dollars from his personal savings account.
[129]*129On 8 March 1988, the Ford Bronco in which Cathy Ford was last seen was found burned and hidden in brush near the river, off the Bismark Road. The people who found the Bronco knew to look there because they heard that smoke was seen hanging over the river on 17 February 1988. Experts determined that the fire was deliberate arson.
On 11 March 1988, the police questioned Paul Ferrell, and after obtaining his written permission, searched his trailer. Soon after the search, they found out that Mr. Ferrell had replaced the carpeting in the bedroom. The police obtained a search warrant, and on 19 March a police search of Mr. Ferrell’s mobile home revealed tiny splatters of blood in various places on walls, mirrors, and the ceiling of the bedroom. Blood had also dripped through the crack between two sections of plyboard to a floor joist underneath. Blood was also found on a piece of material in a waste basket. The FBI was able to identify some of the blood as human, and the blood type was not inconsistent with blood of a child of the victim’s parents. Also, a cigarette butt of the type smoked by Ms. Ford was found. The cigarette was smoked by someone with a blood type also not inconsistent with Ms. Ford’s parents.
On 20 March 1988, Paul Ferrell was arrested. On 25 March 1988, police found a wristwatch of the type given to Ms. Ford by her father, near a small burn area behind Mr. Ferrell’s mobile home.
After Cathy Ford’s disappearance, it came out that several other young women in the area of Grant County, West Virginia, and Garrett County, Maryland also received phone calls directing them to secluded areas. There were two sets of phone calls, the first set made between 28 September 1987 and late November 1987, and the second set between 1 February 1988 and 17 February 1988.
From 14 September 1987 to 27 November 1987, Paul Ferrell rented a mobile home on the Bayard-Wilson-Corona Road. Between 28 September 1987 and late November 1987, several women in Grant County, West Virginia and nearby Garrett County, Maryland received unusual phone calls from a man who directed them to various locations near Paul Ferrell’s trailer on the Bayard-Wilson-Corona Road, including the trailer itself and a garage building near the trailer. The caller posed as various people, including a doctor, a magistrate, a police officer, and a passing motorist. All of the recipients were attractive women between the ages of nineteen and thirty-nine.
A young woman who testified that it was Mr. Ferrell who had called her, said that he had asked for her sister’s phone number at work. Her sister’s phone number was later found written on the cover of a phone book in the living quarters of Mr. Ferrell and his brother, above Ferrell’s Mart in Gormania, West Virginia. The telephone there was a private one listed in the name of the defendant, and he used this phone to make many of his unusual calls.
On 21 January 1988, Paul Ferrell rented a mobile home off of the Bismark Road. From 1 February 1988 to 17 February 1988, several young women in the area received strange calls in which a man purporting to be someone other than Paul Ferrell directed them to the area near Mr. Ferrell’s trailer along the Bismark Road. The calls were similar to those made earlier in which a man had directed young women to the Bayard-Wilson-Corona Road.
Paul Ferrell made a regular practice of posing as someone else while calling people on the phone to get them to do his bidding. Paul Ferrell made numerous phone calls to bookstores and libraries across the country, in which he posed as a doctor seeking information on anal sex and anal stimulation. He often tried to get a female employee to read to him from pages 177 and 178 of The New Our Bodies, Ourselves.4 Some employees read some of it to him, and others would not. One employee testified that she heard heavier breathing as the conversation went on, and said “[i]t was like the [130]*130anticipation of hearing.” Another person whom the “doctor” called testified that the caller noticed when the employee missed a paragraph on page 177, and asked if she would go back and read it. When police asked Mr. Ferrell about the calls, he told them that he had made such calls from his girlfriend’s residence and from the living quarters above Ferrell’s Mart. He also said that he frequently posed as a doctor during these calls because he found it was very easy to get the information he wanted that way.
I.
Mr. Ferrell contends that evidence of over 206 phone calls to various bookstores and libraries across the country should have been excluded, because it was more prejudicial than probative. The State contends that the evidence of the phone calls was probative because it established motive, intent, and common plan or scheme, and that the evidence was essential to prove the charge of kidnapping.
This Court, in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), recognized that relevant evidence of prior crimes or wrongs is admissible to establish motive, intent, absence of mistake or accident, identity, or existence of a common scheme or plan. The West Virginia Rules of Evidence now provide in Rule 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b) states essentially the same rule that we pronounced in Thomas, supra. When adopted, it was identical to FRE 404(b). FRE 404(b) has since been amended so that it is gender neutral, but no substantive changes were intended.
There have been a number of federal cases in which evidence of other bad acts has been admitted under FRE 404(b). U.S. v. Kerr, 778 F.2d 690 (11th Cir.1985), was a prosecution for mail fraud and conspiracy to commit mail fraud, based on the predicate crime of arson of a pharmacy. Evidence of irregularities in the dispensing of drugs was held admissible to prove motive and intent to commit arson, even though it raised a prejudicial implication of drug trafficking. See also, U.S. v. Merryman, 630 F.2d 780 (10th Cir.1980) (evidence of other bad acts was admissible to rebut defendant’s claim of mistake or lack of knowledge or intent); U.S. v. Thomas, 632 F.2d 837 (10th Cir.1980) (evidence that one defendant made a death threat growing out of a theft of narcotics was admissible to prove that he was a leader of the drug conspiracy).
As in the cases cited above, the State did not offer the phone call evidence to show that defendant was more likely to commit the crime of kidnapping. In fact, the phone calls do not show that defendant’s character made him more likely to kidnap someone. The calls simply prove elements essentia] to the kidnapping case, namely motive and intent, and also tend to show a common plan or scheme. The record shows that Paul Ferrell made numerous phone calls to bookstores and libraries, and that he regularly received sexual gratification from interaction with persons who were not voluntary providers of sexual gratification. These calls, when considered in conjunction with the calls to local women, are probative, because they tend to prove that Mr. Ferrell used fraud to entice Cathy Ford to the area of his mobile home for the purpose of obtaining some sexual concession or advantage. We therefore agree with the circuit court that the evidence is more probative than prejudicial; it tends to prove that Paul Ferrell enticed Ms. Ford to the area near his mobile home for the purpose of obtaining some concession or advantage from her.
In State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978), a case involving the murder of a woman by her husband and his mistress, the prosecution presented evidence that as part of an extramarital relationship, the defendant husband and his [131]*131mistress had engaged in oral sex at a time when to do so was a felony. This Court held that because there was ample evidence of the sexual relationship, the evidence concerning oral sex had no probative value whatsoever on the issue of whether defendant had plotted with his mistress to murder his wife. Id., 161 W.Va. at 394, 242 S.E.2d at 471. However, this Court went on to say that, “if the state had been able to demonstrate that this had any reasonable bearing upon the intensity of the emotional relationship and, therefore, upon the strength of the motive, it would have been admissible testimony.” Id., 161 W.Va. at 395, 242 S.E.2d at 471. But in Sette the State had not attempted to make the connection, so the Court concluded that the evidence was introduced “exclusively for its prejudicial effect.” Id5
Although the phone call evidence was prejudicial to the murder and arson charges, it was admissible in the State’s effort to prove the kidnapping charge. In light of the overwhelming evidence on the murder and arson charges we find no reversible error.
Mr. Ferrell also assigns as error the lack of a “meaningful” in camera hearing before evidence of the phone calls was admitted. An in camera hearing on evidence such as the phone calls involved here is required by State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). However, the record shows that there was an in camera hearing on the phone calls to bookstores and libraries. We note that this Court in Dolin also gave the defendant the right to request and receive a limiting instruction on evidence such as the phone calls involved here. However, Mr. Ferrell did not request such a limiting instruction, perhaps for reasons of trial tactics and strategy, so there was no error in the court’s not giving one.
II.
Mr. Ferrell claims that there was insufficient evidence to convict him of kidnapping. After careful examination of the record, however, we conclude that his conviction for kidnapping should be upheld. The defendant was charged and convicted under W.Va.Code, 61-2-14a [1965], the general kidnapping statute.6
[132]*132Once a jury convicts a defendant, he bears a heavy burden on appeal. This Court set out the standard in Syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), where we said:
In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.
Thus, it is with this standard in mind that we must consider defendant’s assignment of error.
The prosecution needed to prove beyond a reasonable doubt that Mr. Ferrell used fraud to entice Ms. Ford to the area near his mobile home, for the purpose of gaining a “concession or advantage” in the form of sexual gratification. If, therefore, there was sufficient evidence from which the jury could find beyond a reasonable doubt that the defendant used fraud to entice Ms. Ford to his mobile home with the intent of gaining a concession or advantage from her, then his conviction must be affirmed.
Mr. Ferrell claims that the prosecution failed to show that he used force on the victim, transported the victim, or confined her. However, in State v. Hanna, 180 W.Va. 598, 378 S.E.2d 640 (1989), which also involved the kidnapping and disappearance of a young woman, this Court said, “[i]t is clear that kidnapping can be accomplished under our statute without force or compulsion since it uses terms such as ‘fraud’, ‘decoy’, ‘inveigle’ or ‘entice away’ ”. Id., 180 W.Va. at 604, 378 S.E.2d at 646 n. 7. Just as the general kidnapping statute, W.Va.Code, 61-2-14a [1965], does not require force, neither does it require transportation or confinement of the victim.7
On the element of fraud, the jury had ample evidence of Mr. Ferrell’s use of fraudulent phone calls to obtain what he desired, so that they could reasonably infer that Mr. Ferrell used fraud to get Cathy Ford to meet him at or near his trailer. On the element of enticement, the jury’s determination from the overwhelming evidence that Cathy Ford was killed in Paul Ferrell’s mobile home, combined with the phone call to Cathy Ford concerning the liquor investigation, could lead the jury reasonably to believe that Paul Ferrell told Cathy Ford something to get her to meet with him, and that she actually went to his trailer because of his fraudulent representations.
Evidence of Mr. Ferrell’s motive for luring Cathy Ford to his trailer comes from the telephone calls he made to bookstores and libraries for sexual gratification. Mr. Ferrell had the same motive in calling young women, including the victim, and enticing them to secluded areas near his trailer. The record presents a picture of Mr. Ferrell as a man who regularly obtained sexual gratification from involuntary partners; in other words, the prosecution proved system, motive and intent.
Mr. Ferrell also argues that he cannot be convicted of kidnapping if he is convicted of murder, because the kidnapping would be only incidental to the murder. In State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985), this Court held that one [133]*133limit that must be placed on the broad scope of the kidnapping statute is that, “a kidnapping has not been committed when it is incidental to another crime.” Syllabus point 2, Id. The court then laid out the test, “[i]n deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm.” Id. In Miller, the facts showed that the defendant forced the victim to travel a not inconsequential distance, confined her behind a locked gate for a substantial period under threat of physical harm, before committing the separate offense of sexual assault. Id., 175 W.Va. at 622, 336 S.E.2d at 916.
There are situations where an offense that would technically constitute kidnapping under our broadly worded statute cannot be considered a separate offense. For example, where prisoners briefly confined prison guards in the course of an escape, and did not use any guards as hostages or shields, this Court held that the kidnapping was incidental to the escape. State v. Brumfield, 178 W.Va. 240, 358 S.E.2d 801 (1987).
In the case before us, however, it is highly unlikely that Paul Ferrell enticed Cathy Ford to his trailer exclusively in order to kill her; rather the jury could have reasonably believed that he enticed her to his trailer in order to commit the offense of rape, an offense with which he was not charged. Therefore, we find no reason that defendant cannot be convicted of the separate offenses of kidnapping and murder.
III.
Mr. Ferrell argues that the testimony of Special Agent Curtis concerning Mr. Ferrell’s body movement during a polygraph test should not have been admitted at trial. Agent Curtis was testifying as an expert witness with regard to responses he observed before and after, but not during, a polygraph test that he administered to Mr. Ferrell.8 As part of the interview, Agent Curtis presented the defendant with a scenario in which there were two Paul Ferrells, one that was a calm, rational individual, and another who acted emotionally, and struck out in anger at Cathy Ford. Agent Curtis testified that as he was verbally presenting the scenario, Mr. Ferrell was nodding. However, Agent Curtis went further than simply stating that Mr. Ferrell nodded, and opined that, based upon his expertise in interpreting body language, Mr. Ferrell’s nodding was an admission of guilt.
We agree with defendant that it was improper for Agent Curtis to give expert testimony to the effect that Mr. Ferrell admitted guilt by nodding while Agent Curtis was speaking to him. It is entirely possible that Mr. Ferrell was simply nodding to show that he was listening, and in no way agreed with what Agent Curtis was telling him. Indeed, this point was strenuously pointed out by defense counsel in cross-examination. The jury is competent to determine the meaning of such everyday non-verbal communication, and Agent Curtis should not have been allowed to add an expert opinion. However, this was but a small part of a very long and complicated trial; although the court gave no cautionary instruction, the extensive cross-examination by defense counsel adequately pointed out to the jury the inconclusiveness of nodding during conversation.
This court will not reverse a conviction for harmless error. A concisely worded test of whether error is harmless was announced by this Court in State v. Davis, 153 W.Va. 742, 172 S.E.2d 569 (1970):
A verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused.
We set out a more detailed test in Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 [134]*134S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).
Where improper evidence of a noncon-stitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State’s case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.
See also State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987); State v. Thompson, 176 W.Va. 300, 342 S.E.2d 268 (1986); State v. Tanner, 171 W.Va. 529, 301 S.E.2d 160 (1982); State v. Church, 168 W.Va. 408, 284 S.E.2d 897 (1981); State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980).
Removing from the State’s case Agent Curtis’ opinion on the meaning of Mr. Ferrell’s nodding, the remaining evidence is clearly sufficient to convince impartial minds of Mr. Ferrell’s guilt beyond a reasonable doubt. Mr. Ferrell discouraged a search of the area when Ms. Ford’s Bronco was located; he wrote a letter to Ms. Ford’s parents; he asked his girlfriend to make calls to indicate to Ms. Ford’s family that she was all right; and he regularly used telephone impersonations to attempt to entice young women to meet him in secluded areas. Thus we conclude that Agent Curtis’ opinion on the nodding, particularly when taken in the context of defense counsel’s skillful cross-examination, had no prejudicial effect on the jury and the error committed was harmless.
IV.
Defendant contends that the trial court erred by instructing the jury that they were to determine the “guilt or innocence of the accused.” Upon an examination of the context in which the phrase “guilt or innocence of the accused” was used, and considering the purpose of the instruction in which that phrase is to be found, we find that there was no error.
After giving specific instructions that went on for twenty-three pages of trial transcript, the court began to give its “standard” or “general” charge to the jury. At the beginning of the general charge, the court cautioned the jury that they were not there to judge the defendant for crimes that were not charged in that proceeding. The court said:
I caution you members of the jury that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendant is not on trial for any act, or conduct, or offense not alleged in the indictment. Neither are you called upon to return a verdict as to the guilt or innocence of any person or persons not on trial.
The point the court was making benefited the defendant, but making the point concisely without using the word “innocence” to contrast with the word “guilt” would have been difficult linguistically without involved convolutions distinguishing “guilty” from alternatives like “failure to prove guilt beyond a reasonable doubt,” etc.
The court had already correctly instructed the jury that it could choose between two verdicts, “guilty” and “not guilty” so that the distinction was clear. The court had also instructed the jury that the State must overcome the presumption of innocence by proof beyond a reasonable doubt, so the standard of proof was clear.
In Syllabus point 3 of State v. Starkey, supra, this Court said:
An instruction in a criminal case which is not binding and does not require the jury to accept a presumption as proof beyond a reasonable doubt of any essential element of a crime, or require the defendant to introduce evidence to disprove an essential element of the crime for which he is charged, is not erroneous.
[135]*135Like the instruction in that case, the instruction to which Paul Ferrell objects does not change the burden of proof. In short, both instructions do not misstate the law in any way that hurts the defendant.
In Smith v. Bordenkircher, 718 F.2d 1278 (4th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2355, 80 L.Ed.2d 828 (1984), the Fourth Circuit addressed a similar problem, in a case involving a West Virginia prisoner. The trial judge gave an instruction equating “good and substantial doubt” with “reasonable doubt.” The court said that “each challenged instruction of this general sort must be assessed in its particular context to determine whether by itself it so infected the trial that due process was denied.” Id., at 1277. The court found that the challenged expressions were more accurate when viewed in context than when viewed in “artificial isolation,” and were not likely to “mislead the jury into finding no reasonable doubt when there was some.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954).
In Stinnett v. U.S., 173 F.2d 129 (4th Cir.1949), cert. denied, 337 U.S. 957, 69 S.Ct. 1531, 93 L.Ed. 1756 (1949), the Fourth Circuit addressed a case where the defendant isolated one sentence from the judge’s charge to the jury. The appeals court noted that the sentence to which objection was made was “not intended as a complete statement in itself of all the elements of the crime charged,” and that other parts of the court’s charge resolved any possible ambiguity. Id., at 130. Consequently, the Fourth Circuit found there was no prejudicial error in the charge to the jury. On examining the challenged sentence of the judge’s charge to the jury in the context of the specific instructions and the general charge, we find that there was no error.
In addition, defendant did not object to the charge when given. Syllabus point 1 of State v. Smith, 169 W.Va. 750, 289 S.E.2d 478 (1982), this Court stated:
As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to here.
The trial court could have corrected whatever problem there might have been in the charge, if asked to do so. No objection was made at trial, so we find no reversible error in the challenged sentence.
Accordingly, for the reasons set forth above, the judgment of the Circuit Court of Grant County is affirmed.
Affirmed.