Introduction

This commentary examines the concurring opinion in State of West Virginia v. David Hunter Lewis, decided June 2, 2025, by the Supreme Court of Appeals of West Virginia (Justice Bunn, joined by Justice Armstead). The case arose after Mr. Lewis was convicted of murder in a West Virginia circuit court. On appeal, the State’s presentation of extensive, inadmissible evidence regarding the victim’s good character—without timely objection—led the high court to apply the plain error doctrine, vacate the convictions, and remand for a new trial.

Two key issues animated Justice Bunn’s concurrence: (1) the defendant’s burden to demonstrate prejudice under the third prong of plain-error review; and (2) the proper scope of prosecutorial storytelling in criminal trials, within evidentiary bounds.

Summary of the Judgment

The court agreed that the admission of repeated, irrelevant character testimony about the victim constituted plain error warranting vacation of Mr. Lewis’s murder convictions. Under West Virginia precedent, plain-error review requires showing (1) an error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.

Justice Bunn concurred to emphasize:

• The defendant bears the burden of proving prejudice under prong 3 of the plain-error test.
• Prosecutors retain reasonable latitude to “tell the story” of their case, including certain victim details, so long as they comply with the rules of evidence.

Analysis

Precedents Cited

• State v. Miller, 194 W. Va. 3 (Syl. pt. 7 & 9, 1995): Articulated the four-prong plain-error test and placed on defendants the burden of demonstrating prejudice.
• State v. Todd C., 250 W. Va. 642 (2023): Reaffirmed the heavy burden of proof for plain-error prejudice.
• State v. Marple, 197 W. Va. 47 (Syl. pt. 3, 1996): Required that unobjected-to error actually affect the jury verdict.
• Federal authorities such as United States v. Phillips, 516 F.3d 479 and Cox, 957 F.2d 264 underscored that plain error is “to be used sparingly,” and the defendant’s burden is heavy.
• United States Supreme Court in Old Chief v. United States, 519 U.S. 172: Confirmed the prosecution’s right to present evidence of its own choosing, rather than rely solely on stipulations, to preserve the narrative’s “evidentiary force.”

Legal Reasoning

The court found plain error in the State’s repeated references to the victim’s good character—irrelevant absent a claim of self-defense or first aggressive act under W. Va. R. Evid. 404(a)(2)(C). Even though Mr. Lewis did not object timely, the court applied the four-prong test:

1. Error occurred (introduction of inadmissible character evidence).
2. Error was plain (clear violation of Rule 404(a)).
3. Error affected substantial rights (prejudice to defendant, shifting focus from degree of murder to sympathy for the victim).
4. Error seriously affected fairness and integrity of proceedings (overwhelming, repeated character evidence).

Justice Bunn stressed that under prong 3, the defendant must demonstrate prejudice; here, Mr. Lewis met that heavy burden by showing how the State’s emphasis on the victim’s character distorted the jury’s evaluation of malice and intent.

Impact

This concurrence clarifies two principles for future criminal appeals in West Virginia:

• Defendants seeking plain-error relief bear a significant, affirmative burden of proving that unobjected-to errors prejudiced the outcome.
• Prosecutors maintain reasonable latitude to present a coherent narrative—including relevant victim details—so long as evidentiary rules are respected. Lower courts must carefully balance exclusion of irrelevant character evidence against the State’s right to “tell the story” of its case.

Complex Concepts Simplified

Plain Error Doctrine: A four-step test for errors not objected to at trial. Only rare, clear mistakes that affect a party’s substantial rights and the trial’s integrity are reversed under this doctrine.

Substantial Rights & Prejudice: To show prejudice, a defendant must prove the error likely influenced the jury’s verdict, not merely that it was mistaken.

Rule 404(a) – Character Evidence: Generally prohibits evidence of a person’s character to prove action in conformity, except when the defendant raises self-defense or first-aggressor issues (not asserted here).

Prosecutorial Storytelling: The principle that the State may choose its own evidence to craft a coherent, persuasive narrative, rather than relying entirely on stipulations or bare admissions.

Conclusion

The concurrence in State v. Lewis crystallizes two vital rules: first, defendants in West Virginia bear the burden of proving prejudice under the plain-error doctrine; second, prosecutors retain a constitutionally grounded right to present their case narrative, subject to evidentiary constraints. This decision reinforces rigorous application of plain-error review and strikes a careful balance between excluding unfairly prejudicial character evidence and preserving the prosecution’s storytelling prerogative.