Plain-Error Scrutiny for “Back-Door” Expert Evidence: Therapy Notes as Unfair Surprise After Expert Exclusion

1. Introduction

State of West Virginia v. Brendan W. (Justice Wooton, concurring, in part, and dissenting, in part) arises from a criminal prosecution involving multiple indictment counts, including Count Four (charging an offense under West Virginia Code § 61-8B-7(a)(1)) and Count Two (charging sexual abuse by a parent, guardian, custodian, or person in a position of trust with a child).

Justice Wooton agrees with the majority’s core disposition on Count Four: the indictment and jury instruction mismatch resulted in an impermissible amendment, requiring reversal. He parts ways with the majority, however, on the treatment of the admission of a therapist’s treatment notes and related testimony. In his view, allowing the State to introduce therapy notes containing expert-type conclusions—after the circuit court had barred the therapist from testifying as an expert due to discovery noncompliance—created a fundamentally unfair “trial by ambush” that should be corrected under plain error review, warranting reversal of Count Two as well.

2. Summary of the Opinion (Justice Wooton’s Concurrence/Dissent)

  • Agrees Count Four must be reversed because it charged a violation of West Virginia Code § 61-8B-7(a)(1) and was insufficient to charge § 61-8B-7(a)(3); instructing the jury on (a)(3) was an improper amendment of the indictment.
  • Agrees the therapist’s notes were relevant under W. Va. R. Evid. 401, and relevance was the only preserved objection.
  • Disagrees with limiting review to preservation/relevance: he would invoke the Court’s ability to notice plain error sua sponte because admission of the notes and expert-like questioning was unfairly surprising and prejudicial to the right to a fair trial.
  • Would reverse not only Count Four but also Count Two, on the theory that the “back-door” use of expert evidence undermined due process (W. Va. Const. art. III, § 10) and the integrity of the proceedings.

3. Analysis

3.1. Precedents Cited

Plain-error authority and standards

  • State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998) and Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008) (as collected and quoted via later authority): Justice Wooton relies on these cases for the Court’s “well-recognized ability” to “sua sponte, in the interest of justice, notice plain error.” Their role is jurisdictional/structural: they support the proposition that the Court is not always confined to preserved objections when fundamental fairness is at stake.
  • Kent v. Sullivan, 249 W. Va. 747, 901 S.E.2d 500, 501 (2024): Used as the immediate, modern articulation (syllabus citation) of the Court’s willingness to notice plain error sua sponte. Justice Wooton uses it to justify reaching beyond the majority’s preservation framing.
  • State v. Murray, 220 W. Va. 735, 649 S.E.2d 509 (2007): Supplies the four-part test for plain error: (1) error; (2) plain; (3) affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. Justice Wooton applies this as the governing analytical tool for reviewing the therapy-notes episode notwithstanding the lack of a preserved objection beyond relevance.
  • State v. Marple, 197 W. Va. 47, 475 S.E.2d 47 (1996): Critical to the prejudice inquiry. Justice Wooton emphasizes that a defendant need not show a reasonable jury would have acquitted absent the error; it is enough to demonstrate the verdict was “actually affected” by the unobjected-to error. This lowers the defendant’s burden on the “substantial rights” prong and makes plain-error correction more accessible in “trial by ambush” scenarios.

Discovery, surprise, and “trial by ambush”

  • Graham v. Wallace, 214 W. Va. 178, 588 S.E.2d 167 (2003): Although civil, it provides the conceptual foundation: discovery exists to avoid “flying blind” and to eliminate surprise so the jury can evaluate evidence fairly. Justice Wooton imports this rationale into the criminal context, arguing that even if criminal discovery is narrower, its fairness purpose remains.
  • State v. Rollins, 233 W. Va. 715, 740, 760 S.E.2d 529, 554 (2014): Quoted for the specific criminal discovery obligation in Rule 16(1)(E)—that upon request, the State must disclose a written summary of expert testimony it intends to use under Rules 702, 703, or 705, including opinions, bases, and qualifications. This case supports Justice Wooton’s theme: expert evidence requires special pretrial disclosure, and using therapy notes to convey expert conclusions can functionally evade those safeguards.
  • State v. Mayle, No. 13-0437, 2014 WL 2782126, at *3 (W. Va. June 19, 2014) (memorandum opinion): Cited for its rejection of an unfair-surprise claim where documents were disclosed pretrial. Justice Wooton distinguishes the present situation implicitly: even if notes were once turned over, later procedural rulings (expert exclusion) can reasonably shape defense preparation; using the notes after excluding expert testimony reintroduces surprise of a different kind.
  • McDougal v. McCammon, 193 W.Va. 229, 236-37, 455 S.E.2d 788, 795-96 (1995): Invoked for the maxim that the rules do not contemplate “trial by ambush” and that discovery aims to eliminate surprise. Justice Wooton extends the maxim from civil to criminal procedure, framing the therapist-notes maneuver as a paradigmatic ambush.

3.2. Legal Reasoning

(A) The “back-door expert” problem

Justice Wooton’s central fairness critique is functional rather than formal. Even though the therapist was “ostensibly” testifying as a lay witness, the State introduced therapy notes containing what he characterizes as expert-domain conclusions: that the victim was in therapy due to childhood sexual abuse, that she had posttraumatic stress disorder and trauma-related symptoms, and that therapy/education was needed for coping. He also highlights the prosecutor’s questioning about whether it is “usual or unusual” for a child victim to maintain a relationship with a perpetrator—eliciting the answer that it was “not unusual.”

In Justice Wooton’s view, these are not ordinary observations available to a lay witness; they carry the imprimatur of specialized experience and clinical judgment. The resulting prejudice is compounded by the procedural posture: the circuit court had previously barred the State from calling the therapist as an expert due to failure to comply with Rule 16(1)(E), which would have forced the State to disclose the opinions and their bases in advance. Admitting notes that embed those opinions, and permitting “experience”-based explanatory testimony, effectively reinstated the expert content without the expert disclosure predicate.

(B) Why plain error should apply despite limited preservation

Justice Wooton accepts the majority’s point that relevance was the only preserved objection. He argues, however, that the Court should still intervene because:

  1. Error: permitting expert-substance through notes and questioning after excluding expert testimony for discovery violations.
  2. Plainness: the mismatch between the court’s exclusion ruling and the State’s later “back door” use of the same expert matter is, to him, a clear circumvention.
  3. Substantial rights: relying on State v. Marple, he asserts the petitioner need only show the verdict was “actually affected,” not that acquittal was probable in a clean trial. The unanticipated expert-type material, he contends, changed the defense’s ability to contest the State’s narrative.
  4. Fairness/integrity: he labels the episode “trial by ambush,” asserting it “seriously affected the fairness of the trial” and therefore justifies sua sponte correction under the Court’s plain-error jurisprudence.

(C) Symmetry in enforcing discovery rules

Justice Wooton underscores a parity concern: the circuit court enforced pretrial disclosure rules strictly against the defense (excluding the petitioner’s wife as an alibi witness for noncompliance with Rule 12.1(a)), and initially against the State (excluding the therapist as an expert under Rule 16(1)(E)), but later allowed the State to achieve substantially the same end by introducing therapy notes and eliciting expert-like “experience” testimony.

This, he suggests, “tipped the scales of justice” by holding only one party meaningfully accountable in practice. The due process dimension is made explicit by reference to W. Va. Const. art. III, § 10.

3.3. Impact

Although Justice Wooton’s writing is a concurrence/dissent rather than the Court’s majority rule, it signals a consequential path for future litigants: framing “expert evidence by another name” as plain error when introduced after an expert-exclusion ruling or without expert disclosures. If adopted in future majority opinions, the approach would:

  • Encourage closer policing of attempts to introduce Rule 702-type substance through documents or “lay” testimony, particularly in sensitive prosecutions where therapeutic records may carry significant persuasive weight.
  • Strengthen incentives for the State to comply with Rule 16(1)(E) by reducing the viability of end-runs (e.g., “notes instead of experts”).
  • Expand the practical reach of sua sponte plain-error review where fairness and trial integrity are implicated, even if trial counsel’s objections were narrower (e.g., limited to relevance).
  • Emphasize procedural symmetry: if courts sanction defense noncompliance (e.g., excluding an alibi witness), they may need to apply comparable rigor to State noncompliance to avoid the appearance and reality of imbalance.

4. Complex Concepts Simplified

Relevance (W. Va. R. Evid. 401)
Evidence is relevant if it makes a consequential fact even slightly more or less probable. It is a low threshold; relevance does not guarantee admissibility if other rules (e.g., unfair prejudice, improper opinion testimony, discovery violations) are implicated.
Lay vs. expert testimony
A lay witness testifies to ordinary perceptions (what they saw/heard). An expert witness offers opinions based on specialized knowledge or experience (clinical diagnoses, trauma dynamics, patterns of victim behavior). Justice Wooton’s complaint is that “expert” content was presented while calling the witness “lay,” depriving the defense of the preparation and disclosures typically required for expert testimony.
Plain error
A doctrine allowing an appellate court to correct unpreserved errors when the mistake is clear, affects substantial rights, and undermines the fairness or integrity of the proceedings. Justice Wooton applies it to reach beyond the narrow preserved objection of relevance.
Trial by ambush / unfair surprise
A situation where one party is effectively deprived of a fair opportunity to prepare for and meet evidence. Here, Justice Wooton argues the defense prepared for a case without the therapist as an expert (because the court excluded expert testimony), only to confront expert-substance at trial through therapy notes and “experience” questioning.
Improper amendment of the indictment
When the jury is instructed—or the case is tried—in a way that changes the charged offense from what the grand jury returned. Justice Wooton agrees with the majority that instructing on West Virginia Code § 61-8B-7(a)(3) after Count Four charged § 61-8B-7(a)(1) improperly altered the accusation, requiring reversal of the Count Four conviction.

5. Conclusion

Justice Wooton’s concurrence/dissent does two things. First, it aligns with the majority on a foundational charging-instrument principle: the State cannot obtain a conviction based on a jury instruction that effectively amends the indictment, so Count Four must be reversed. Second—and more provocatively—it frames the admission of therapy notes and related testimony as a plain-error due process violation when such evidence functions as expert testimony by proxy after the court has barred expert testimony for discovery failures.

The broader significance lies in the fairness-focused lens: if courts enforce discovery violations strictly against defendants (e.g., excluding an alibi witness), they must be vigilant against procedural end-runs that allow the State to introduce the same kind of evidence through “back-door” means. In Justice Wooton’s view, allowing that asymmetry risks converting criminal adjudication into “trial by ambush”—a result incompatible with the integrity of the judicial process and the guarantee of due process under W. Va. Const. art. III, § 10.