Date: Jun 16, 2026

“Effect on the Listener” Is Not a Backdoor to Prove Guilt: Relevancy, Limiting Instructions, and Preservation via Motion in Limine

1. Introduction

In State of West Virginia v. Randy C. Cain (No. 23-535), Justice Trump authored an opinion concurring in part and dissenting in part from the Supreme Court of Appeals of West Virginia’s disposition of firearm-related convictions arising out of an alleged multi-day incident in a residence.

The dispute centers on whether the State proved two firearm-related charges—wanton endangerment with a firearm and use or presentment of a firearm during the commission of a felony—through admissible evidence, or instead relied on highly prejudicial hearsay (including alleged voicemail contents and out-of-court descriptions of injuries). Justice Trump agrees the hearsay did not fit asserted exceptions and agrees that the wanton-endangerment conviction must be reversed. He dissents, however, from affirmance of the use-or-presentment conviction, concluding that both firearm convictions should be reversed because the essential elements were established only through inadmissible hearsay admitted over timely, specific objections.

2. Summary of the Opinion

Agreement with majority (in part): The trial court and State were wrong to treat Deputy Render’s hearsay as admissible under Rule 803(1) (present sense impression) or Rule 803(3) (then-existing mental, emotional, or physical condition), and Rule 807 (residual exception) should not be used to admit the challenged hearsay.
Go-further position: Justice Trump would expressly hold that Rule 807 cannot apply on this record.
Result: He agrees the wanton endangerment conviction must be reversed, but would also reverse the use or presentment of a firearm conviction due to insufficient admissible evidence once hearsay is removed.
Core evidentiary holding (as argued): The State’s “effect on the listener” theory was “illusory” because the listener’s responsive conduct was not disputed or material; the testimony functioned as substantive proof of guilt without a limiting instruction.
Preservation: Justice Trump concludes the defendant adequately preserved hearsay objections through a motion in limine and contemporaneous objections during trial.
Alternative basis: Even if preservation were imperfect, admission of the hearsay constituted plain error.

3. Analysis

3.1. Precedents Cited

Sufficiency, inference, and “remove the inadmissible evidence” review

State v. Guthrie, Syl. Pt. 1, in part, 194 W. Va. 657, 461 S.E.2d 163 (1995): Justice Trump applies the familiar standard that a conviction requires evidence from which “any rational trier of fact could have found the essential elements…beyond a reasonable doubt.” His dissent turns on the proposition that once hearsay is excluded, that standard is not met for the use-or-presentment charge.
State v. Atkins, Syl. Pt. 2, in part, 163 W. Va. 502, 261 S.E.2d 55 (1979): Supplies the method for nonconstitutional evidentiary error: remove the inadmissible evidence and assess whether the remainder still proves guilt beyond a reasonable doubt; if not, the error is not harmless. Justice Trump uses Atkins to argue the State’s firearm proof collapses when hearsay is removed.
State v. Miller, 197 W. Va. 588, 610 n.27, 476 S.E.2d 535, 557 n.27 (1996): Quoted for the limitation on circumstantial inference: there must be a “rational connection” between an inferred fact and a proved fact. Justice Trump uses this to reject stacking inferences from (i) mere possession in porch photographs and (ii) an apparent “bullet hole” of unknown origin/timing into proof of discharge and/or use during assault.

“Effect on the listener,” relevancy, and the risk of using non-hearsay labels to prove guilt

Herbert J. Thomas Memorial Hospital Association v. Nutter, 238 W. Va. 375, 392-93, 795 S.E.2d 530, 547-48 (2016): Cited for the rule that words offered to show their effect on a hearer are admissible when offered to show the effect on one whose conduct is at issue. Justice Trump reads Nutter to mean the listener’s responsive conduct must be relevant and disputed; otherwise, “effect on the listener” is not a genuine basis.
State v. Morris, 227 W. Va. 79, 80-81 n.3, 705 S.E.2d 583, 587-88 n.3 (2010) (per curiam), and State v. Maynard, 183 W. Va. 1, 5, 393 S.E.2d 221, 225 (1990): Used to underscore that “effect on the listener” often collapses into a relevancy/Rule 401–403 inquiry and can be erroneous where the listener’s conduct is not relevant (as with an anonymous tip offered to implicate the defendant).
State v. Phillips, 187 W. Va. 205, 208, 417 S.E.2d 124, 127 (1992): Quoted to emphasize the danger of admitting accusatory out-of-court statements that “establish the overt facts” and “provide a fundamental link” in the State’s proof—i.e., precisely what Justice Trump contends occurred here when voicemail and injury-cause statements supplied the only direct evidence of firearm use/presentment and discharge.
State v. Maynard, Syl. Pt. 1, in part, 183 W. Va. at 2, 393 S.E.2d at 222: Recognizes categories of non-hearsay uses (motive, intent, state-of-mind, identification, reasonableness of action), but Justice Trump stresses the limiting principle: such statements cannot be used as substantive proof of guilt when offered under a non-hearsay label.

Limiting instructions and the trial court’s obligation when admitting evidence for a limited purpose

State v. Collins, 186 W. Va. 1, 9-10, 409 S.E.2d 181, 189-90 (1990): Stands for the requirement that statements admitted solely for impeachment may not be used substantively and that the court must instruct the jury accordingly. Justice Trump analogizes: if the State claims “effect on the listener” (limited purpose), the jury must be instructed on that limitation.
State v. James B., Sr., 204 W. Va. 48, 53-54, 511 S.E.2d 459, 464-65 (1998) (per curiam): Supports admission of out-of-court statements explaining relevant conduct where accompanied by a “lengthy limiting instruction.” Justice Trump contrasts that safeguard with this case, where no limiting instruction was given.
State v. McGinnis, 193 W. Va. 147, 154, 455 S.E.2d 516, 523 (1994): Invoked as a comparable limiting-instruction framework (Rule 404(b)): the prosecution must identify the purpose and the jury must be instructed to limit its use. Justice Trump uses McGinnis to show the system’s general insistence on purpose-plus-instruction, which was missing here.
State v. Dozier, 163 W. Va. 192, 196, 255 S.E.2d 552, 554 (1979): Quoted for the continuing duty of the trial court to ensure the jury is properly instructed on matters pertinent to the decision. This supports Justice Trump’s view that absence of a limiting instruction compounded prejudice even if the defense’s proposed instruction was imperfect.

Preservation of error: motion in limine, contemporaneous objections, and waiver doctrine

State v. Bradshaw, Syl. Pt. 12, 193 W. Va. 519, 457 S.E.2d 456 (1995): Provides that an objection to an adverse ruling on a motion in limine preserves the point even if no objection is made when the evidence is offered, unless there is a significant change in the basis for admitting the evidence. Justice Trump relies on Bradshaw to reject the majority’s waiver finding.
Voelker v. Frederick Bus. Props. Co., 195 W. Va. 246, 255, 465 S.E.2d 246, 255 (1995); In re Tiffany Marie S., 196 W. Va. 223, 234, 470 S.E.2d 177, 188 (1996); Yates v. University of West Virginia Bd. of Trustees, 209 W. Va. 487, 492-93, 549 S.E.2d 681, 686-87 (2001); First Nat. Bank of Ronceverte v. Bell, 158 W. Va. 827, 215 S.E.2d 642 (1975); and State v. Bragg, 140 W. Va. 585, 615, 87 S.E.2d 689, 707 (1955): Cited to map when waiver is found (no objection at all, objection to different evidence, or objection made far too late), and to emphasize that procedure should not defeat the duty to ensure a fair trial. Justice Trump argues the record shows timely, specific hearsay objections and a clear motion in limine.
Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 531, 694 S.E.2d 815, 864 (2010), and State v. Blickenstaff, 239 W. Va. 627, 631, 804 S.E.2d 877, 881 (2017): Used for the “specificity” requirement—objections must alert the court to the nature of the defect; courts need not guess. Justice Trump applies these to argue the defense’s hearsay theory was explicit (“every bit…as to how she sustained these injuries is all hearsay”).

Plain error and cumulative error

State v. Miller, Syl. Pt. 7, 194 W. Va. 3, 459 S.E.2d 114 (1995), and State v. Myers, Syl. Pt. 1, in part, 204 W. Va. 449, 513 S.E.2d 676 (1998), alongside W. Va. R. Crim. P. 52(b): Support the proposition that appellate courts may notice plain error affecting substantial rights and the fairness/integrity of proceedings. Justice Trump argues plain error exists because hearsay supplied the only proof of the firearm charges.
State v. Smith, Syl. Pt. 5, 156 W. Va. 385, 193 S.E.2d 550 (1972): Cited for cumulative error—multiple errors can combine to deny a fair trial. Justice Trump emphasizes the cumulative prejudicial effect of repeated hearsay from both the sister and Deputy Render (including the inflammatory “pistol-whipped” phrasing).

3.2. Legal Reasoning

Step one: isolate admissible evidence. Justice Trump identifies the admissible firearm-related evidence as (a) still photos showing the petitioner on a porch with a handgun at his side, and (b) later observation of what appeared to be a bullet hole in a television. He concludes this supports prohibited-person-in-possession, but does not prove discharge, use, or presentment during the felony.
Step two: reject inference stacking without a rational connection. Relying on State v. Miller (197 W. Va. 588), he argues the State’s theory required the jury to infer too much from too little: from possession → discharge during the charged timeframe → use/presentment during the assault, without proof of timing or causal linkage.
Step three: identify the hearsay that supplied the missing elements. He describes two categories: (1) alleged voicemail contents, and (2) alleged out-of-court statements by the victim describing how injuries occurred. He stresses the voicemail itself was not offered; instead, witnesses gave inconsistent accounts—illustrating hearsay’s reliability problem.
Step four: dismantle “effect on the listener” as a justification on these facts. Under Herbert J. Thomas Memorial Hospital Association v. Nutter, effect-on-hearer evidence is permissible when the hearer’s conduct is at issue. Here, the sister’s call to police and the deputy’s response were not disputed or material, so the asserted non-hearsay purpose does no real work. The statements instead served as substantive evidence of guilt, implicating the concern articulated in State v. Phillips.
Step five: emphasize the missing limiting instruction as a prejudice multiplier. Even if evidence had a limited permissible purpose, Justice Trump argues the jury was never instructed to confine its use—contrary to the logic of State v. Collins and State v. James B., Sr. The result, he contends, is that the jury was effectively invited to use hearsay for its truth.
Step six: preservation (and plain error as fallback). He finds preservation through the motion in limine under State v. Bradshaw and through timely trial objections; alternatively he finds plain error under State v. Miller (194 W. Va. 3) and W. Va. R. Crim. P. 52(b).
Step seven: remedy. Applying the State v. Atkins framework, he would remove inadmissible hearsay and conclude the remaining evidence is insufficient for both firearm charges, requiring reversal and remand as to both.

3.3. Impact

Although Justice Trump’s writing is a concurrence/dissent rather than the Court’s majority reasoning, it crystallizes litigation-focused guardrails likely to influence trial practice and future appellate arguments in West Virginia:

Constrained use of “effect on the listener.” The opinion underscores that prosecutors cannot invoke “effect on the listener” when the listener’s conduct is not a genuinely disputed or material issue, particularly when the out-of-court statement directly supplies elements of the charged offense.
Heightened attention to limiting instructions. Where potentially prejudicial statements are admitted for a limited purpose, the opinion treats a limiting instruction as essential to preventing juries from using the evidence substantively.
Preservation via motion in limine. The reliance on State v. Bradshaw highlights a practical preservation pathway for defense counsel and a warning to courts against deeming issues waived when a motion in limine squarely raised the evidentiary defect.
Sufficiency consequences of evidentiary error. By tying hearsay error to the State v. Atkins removal-and-reassess method, the opinion shows how evidentiary rulings can become dispositive of sufficiency for specific counts, not merely harmless-error disputes.

4. Complex Concepts Simplified

Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Example here: repeating what the victim allegedly said happened (e.g., being “pistol-whipped”) to prove the assault involved a gun.
“Effect on the listener”: A non-hearsay theory allowing a statement to be admitted not for its truth, but to explain why someone acted (e.g., why police responded). Justice Trump’s point: if that responsive conduct is not actually relevant or disputed, the theory becomes a pretext for admitting accusatory assertions for their truth.
Limiting instruction: A jury instruction telling jurors the narrow purpose for which they may consider evidence (and forbidding other uses). Without it, jurors may naturally treat accusatory statements as proof of guilt.
Motion in limine: A pretrial request to exclude evidence. Under State v. Bradshaw, an adverse ruling on such a motion can preserve the issue for appeal even without a renewed objection at trial, absent a significant change in the admission basis.
Plain error: An appellate doctrine allowing correction of clear error affecting substantial rights and the fairness/integrity of proceedings, even if preservation is imperfect.
Cumulative error: Multiple errors that may collectively deny a fair trial even if any single error might be argued harmless in isolation.

5. Conclusion

Justice Trump’s concurrence/dissent argues for a strict evidentiary boundary: the State may not use “effect on the listener” as a substitute for admissible proof of contested elements, particularly in firearm charges where the alleged out-of-court assertions are the only direct evidence of use, presentment, or discharge. Anchored in State v. Atkins and State v. Guthrie, the opinion insists that once inadmissible hearsay is removed, the remaining proof must still establish guilt beyond a reasonable doubt—and where it does not, reversal is required. The writing also foregrounds trial-management safeguards—especially limiting instructions and faithful preservation analysis under State v. Bradshaw—aimed at preventing hearsay-driven convictions and protecting the fairness of criminal trials.