Establishing Non-Testimonial Status of Child and Family Hearsay in West Virginia Criminal Trials

Introduction

This memorandum decision in State of West Virginia v. Sherie Titchenell (May 19, 2025) addresses the admissibility of out-of-court statements made by a child victim and by the defendant’s co-defendants in a prosecution for child neglect resulting in death. Sherie Titchenell, along with Julie and Marty Browning, was tried for the death of eight-year-old Raylee Browning. After a joint trial, all three defendants were acquitted of child abuse but convicted of neglect resulting in death under W. Va. Code §§ 61-8D-2a(a) and 61-8D-4a. Titchenell appealed, challenging (1) hearsay rulings under the Confrontation Clause, (2) limits on examining co-defendants and defense witnesses, (3) the circuit court’s intrinsic evidence rulings under Rule 404(b), and (4) venue.

Summary of the Judgment

The Supreme Court of Appeals of West Virginia affirmed the conviction in a brief memorandum decision under Rule 21, finding no prejudicial error. Key holdings include:

Statements by a first-grade child to her teacher were non-testimonial and did not implicate the Confrontation Clause.
Family statements and statements by co-defendants were non-testimonial; any hearsay was admissible under the state-of-mind exception (Rule 803(3)).
Testimony by a nurse regarding an adverse comment by Mr. Browning and by a friend regarding a phone call to Ms. Browning was non-testimonial and did not prejudice Titchenell.
Challenges to cross-examination limitations and to intrinsic versus extrinsic evidence under Rule 404(b) were deemed unpreserved or inadequately briefed.
No venue error was found; all errors asserted were either waived or within the trial court’s discretion.

Analysis

Precedents Cited

Crawford v. Washington (541 U.S. 36, 124 S.Ct. 1354 (2004)) – Establishes that only “testimonial” statements trigger Sixth Amendment confrontation rights.
Ohio v. Clark (576 U.S. 237 (2015)) – Clarifies that statements to non-law enforcement adults—especially children—are seldom testimonial; applies the “primary purpose” test.
State v. Mechling (219 W.Va. 366, 633 S.E.2d 311 (2006)) – Adopts Crawford under West Virginia’s Constitution; defines testimonial vs. non-testimonial.
State v. Martin (2013 WL 5676628 (W.Va. Oct. 18, 2013)) – Sets standards of review: abuse of discretion for evidentiary rulings, clear error for facts, de novo for legal questions.
State v. Kennedy (229 W.Va. 756, 735 S.E.2d 905 (2012)) – Confirms that non-testimonial hearsay is governed by the Rules of Evidence.
State v. Harris (230 W.Va. 717, 742 S.E.2d 133 (2013)) – Distinguishes intrinsic from extrinsic evidence under Rule 404(b).

Legal Reasoning

The Court applied Crawford and Clark to conclude that out-of-court statements by Raylee to her teacher and to family members were non-testimonial because:

They were made in informal, domestic contexts, not to gather evidence for prosecution.
Raylee’s age (first grade) made it unlikely she would intend her remarks as a substitute for trial testimony.
Conversations with teachers and relatives lack the “primary purpose” of prosecutorial evidence gathering.

Non-testimonial hearsay is subject only to the state rules. The Court found B.M.’s testimony admissible under Rule 803(3) (state-of-mind exception), showing the co-defendants’ intent to deny medical care. Testimony by the nurse and by Mr. Browning’s friend was likewise non-testimonial, and any prejudice to Titchenell was negligible. Challenges to witness examination procedures and 404(b) rulings were rejected for lack of preservation and specificity in briefing.

Impact

This decision reinforces and clarifies West Virginia practice in several ways:

Affirms that child-victim statements to teachers and family are presumptively non-testimonial and admissible under existing hearsay and confrontation doctrines.
Illustrates the application of Rule 803(3) to state-of-mind evidence in neglect prosecutions.
Confirms that peripheral statements—by co-defendants or third-party observers—are unlikely to violate confrontation rights if not made to law enforcement.
Emphasizes the need for precise record citations and contemporaneous objections to preserve appellate review of evidentiary and procedural rulings.

Complex Concepts Simplified

Testimonial vs. Non-Testimonial Statements: “Testimonial” statements are those made under circumstances suggesting they’re meant to be formal evidence (e.g., police interrogations). Informal remarks—like a sick child telling her teacher about bruises—are “non-testimonial” and don’t trigger the right to cross-examine under the Sixth Amendment.
Primary Purpose Test (Ohio v. Clark): Court asks: what was the real purpose of the conversation? If it was to report an emergency or console a victim, it’s non-testimonial. If it was to gather evidence for trial, it’s testimonial.
Rule 803(3) State-of-Mind Exception: This admits a declarant’s statement about their own motivation, plan, or intent. Here, co-defendants’ comments about not taking Raylee to the hospital show their mental state and intent to withhold care.
Intrinsic vs. Extrinsic Evidence: “Intrinsic” acts are those closely tied to the charged crime; they’re admissible without invoking Rule 404(b). “Extrinsic” acts—unrelated bad acts—would require rule-based justification. The court found challenged evidence intrinsic to the neglect charge.

Conclusion

State v. Titchenell reaffirms that out-of-court statements by young children and family members are non-testimonial when made in domestic or educational settings, and thus admissible under West Virginia’s hearsay rules without violating the Confrontation Clause. The decision underscores the broad discretion of trial courts in evidentiary matters, the necessity of preserving objections on the record, and the proper application of Rule 803(3) to state-of-mind evidence in child neglect prosecutions. Although the Court did not establish a novel rule, it provided valuable guidance to trial and appellate courts handling similar hearsay and confrontation issues in criminal child neglect cases.