State v. Browning: Malnutrition and Dehydration as Intrinsic Evidence in Child Neglect Prosecutions

Introduction

The Supreme Court of Appeals of West Virginia issued its decision in State of West Virginia v. Marty L. Browning on May 19, 2025. In this criminal appeal, petitioner Marty Browning and two co-defendants were convicted of child neglect resulting in death under West Virginia Code § 61-8D-4a after an eight-year-old girl, Raylee Browning, succumbed to sepsis secondary to untreated pneumonia. The defendants challenged:

Admission of evidence as intrinsic versus extrinsic under Rule 404(b);
Limitations on defense counsel’s examination of witnesses;
Denial of a speedy trial under the “three-term rule” (§ 62-3-21); and
Admission of hearsay and alleged Confrontation Clause violations.

The court affirmed the convictions by memorandum decision, finding no prejudicial error.

Summary of the Judgment

The West Virginia Supreme Court held:

Evidence of Raylee’s malnutrition and dehydration was intrinsic to the neglect charge—part of a single criminal episode—and thus not subject to Rule 404(b).
Other challenged evidence (burns, past injuries, home conditions) related to the abuse count, of which defendants were acquitted, rendering any Rule 404(b) error harmless.
The circuit court acted within its discretion in structuring direct and cross-examination of witnesses.
Petitioner’s continuance requests during two of the three intervening terms excused those terms under the three-term rule; the trial was therefore timely.
Testimony admitted from third parties and children were non-testimonial or admissible under hearsay exceptions, not violating the Confrontation Clauses.

Accordingly, the conviction for neglect resulting in death was affirmed.

Analysis

Precedents Cited

LaRock (196 W. Va. 294, 470 S.E.2d 613): Defines intrinsic evidence as “inextricably intertwined” or part of a “single criminal episode.”
Dennis (216 W. Va. 331, 607 S.E.2d 437): Affirms broad trial court discretion in 404(b) rulings.
Knuckles (196 W. Va. 416, 473 S.E.2d 131): Abuse of discretion standard for evidentiary rulings.
Spadafore (155 W. Va. 674, 186 S.E.2d 833): The three-term speedy trial provision and its exceptions.
Crawford v. Washington (541 U.S. 36): Confrontation Clause bars testimonial hearsay unless prior cross-examination was possible.
Clark (576 U.S. 237): Defines “testimonial” in a Confrontation Clause context and emphasizes non-testimonial family or teacher statements.
W. Va. R. Evid. 803(3): State-of-mind hearsay exception.

Legal Reasoning

The court applied LaRock to conclude that evidence of sustained malnutrition and dehydration was intrinsic: it formed a necessary preliminary cause of Raylee’s fatal pneumonia and was “part and parcel” of the neglect charged. Facts relating to prior injuries and alleged abuse—though admitted—were tied to the abuse count, upon which the jury acquitted, rendering any error harmless under United States v. Heater (689 F.2d 783).

On trial management, West Virginia case law (Davis, Lambert, Delorenzo) grants broad discretion to circuit courts to structure witness examinations. Petitioner cited no authority showing unfairness or prejudice.

Regarding the speedy trial claim, the court read § 62-3-21 alongside trial rule 2.12: petitioner’s own continuance motions during May 2021 and September 2021 excused those terms; thus, he was tried within three unexcused terms.

For hearsay and Confrontation, the court distinguished testimonial (e.g., police interrogations) from non-testimonial statements to teachers, family, or friends. It also invoked Rule 803(3) to admit statements revealing the caregivers’ state of mind (e.g., mocking Raylee’s illness), which directly bore on neglect.

Impact

This decision clarifies that in West Virginia:

Omission-based evidence (malnutrition, dehydration) is intrinsic when it explains how the charged harm occurred.
Trial courts retain wide latitude to organize witness examinations, even in multi-defendant cases.
The statutory “three-term rule” for speedy trials is strictly subject to excusal by defense-requested continuances.
Family and teacher observations are generally non-testimonial; child statements are rarely testimonial.

Defense and prosecution in neglect and abuse cases must now frame ancillary evidence through this intrinsic/extrinsic lens, knowing omissions that contribute directly to harm will be admitted as intrinsic regardless of 404(b).

Complex Concepts Simplified

Intrinsic vs. Extrinsic Evidence (Rule 404(b))
- Intrinsic: Evidence that directly proves the charged crime or is part of a single, unfolding event.
- Extrinsic: Evidence of “other acts” introduced to show character or propensity; subject to strict admissibility tests.
Three-Term Rule
- Requires a trial within three successive court terms post-indictment.
- Any term excused by defendant’s own continuance motions does not count against the three.
Confrontation Clause
- Bars admission of “testimonial” hearsay unless witness is unavailable and prior cross-examination occurred.
- Non-testimonial: Casual statements to family, friends, teachers, or medical personnel made to address an ongoing situation.
State-of-Mind Exception (Rule 803(3))
- Admits statements revealing declarant’s motive, intent, plan, or physical/emotional condition at the time.

Conclusion

State v. Browning reinforces several pivotal principles in West Virginia criminal procedure:

Evidentiary boundaries under Rule 404(b) hinge on whether the proffered conduct forms an inextricable part of the charged offense.
Circuit courts enjoy broad discretion in both trial management and the application of 404(b) and hearsay rules.
The statutory speedy trial rule is strictly triggered unless excused by defense-initiated delays.
Confrontation challenges must focus on “testimonial” hearsay; many out-of-court statements in domestic or school settings will withstand scrutiny.

By affirming Browning’s convictions, the court has set a clear precedent for future neglect prosecutions, guiding trial courts and litigants in weighing omission-based evidence and preserving speedy trial and confrontation rights.