State v. Dolen: Independent Expert Use of Fusion Center Cell‑Site Mapping and the Scope of “Concession” Kidnapping in West Virginia

State v. Dolen: Independent Expert Use of Fusion Center Cell‑Site Mapping and the Scope of “Concession” Kidnapping in West Virginia

I. Introduction

The Supreme Court of Appeals of West Virginia’s decision in State of West Virginia v. Nathan Dolen (No. 23‑160, Nov. 12, 2025) sits at the intersection of three important strands of criminal law and procedure:

  • the State’s obligations under Rule 16 to disclose expert materials,
  • the Confrontation Clause’s limits on expert testimony built on another analyst’s work, and
  • the modern scope of kidnapping under the “ransom, reward, or concession” prong of West Virginia’s statute.

The case arises from a brutal home invasion and robbery of an elderly couple, Ronald and Orlinda Adkins, in Cabell County. The assailant beat and severely injured them, stole firearms and their truck, handcuffed them together, and threatened to return and kill Mrs. Adkins if she called for help. The truck was later burned. A jury convicted Nathan Dolen of numerous felonies, including two counts of kidnapping.

On appeal, Dolen raised four issues:

  1. A discovery challenge under Rule 16 to the State’s late provision (or alleged non‑provision) of a PowerPoint mapping cell‑site data associated with his phone, prepared by the West Virginia Fusion Center.
  2. A Confrontation Clause challenge to the admission of that PowerPoint through the testimony of a police analyst (Lt. Prichard) who had not created it.
  3. A sufficiency challenge to the kidnapping counts, focused on whether the State proved an intent to hold the victims for a “concession.”
  4. An “incidental kidnapping” challenge under State v. Miller, arguing the restraint was merely incidental to the robbery.

Justice Bunn, writing for a unanimous Court, affirmed in all respects. While the opinion does not create new syllabus points, it meaningfully applies and clarifies existing law in two areas:

  • how the Confrontation Clause applies when a qualified expert relies on and independently replicates a fusion center’s cell‑site mapping; and
  • how broadly the “ransom, reward or concession” prong of the kidnapping statute reaches threats to prevent victims from seeking help.

II. Summary of the Opinion

The Court’s principal conclusions can be summarized as follows:

  • Discovery / Rule 16 (PowerPoint): Even assuming arguendo a failure by the State to provide the Fusion Center’s PowerPoint before trial, the circuit court did not abuse its discretion by admitting it. Under the Rusen/Grimm prejudice test, any nondisclosure did not (1) surprise the defendant on a material fact or (2) hamper preparation or presentation of the defense, given that:
    • the defense had long possessed the underlying AT&T call detail records (CDRs) and subscriber information,
    • the PowerPoint was received at least several days before it was used, and
    • the defense could have retained its own expert to analyze the CDRs regardless of the PowerPoint.
  • Confrontation Clause (expert & PowerPoint): There was no Confrontation Clause violation in allowing Lt. Prichard to testify about the cell‑site mapping even though he did not create the PowerPoint. He:
    • was qualified as an expert in call detail records and GPS/cell‑site analysis,
    • independently analyzed the AT&T CDRs himself, using Google Maps and PenLink software,
    • used the PowerPoint as a visual display of data he had already verified and replicated, and
    • was fully available for cross‑examination.
    The Court distinguished this scenario from “surrogate analyst” testimony barred by decisions such as Melendez‑Diaz, Bullcoming, State v. Kennedy, and Smith v. Arizona.
  • Kidnapping sufficiency (“concession”): Viewing the evidence in the light most favorable to the State, a rational jury could find that handcuffing the injured victims and threatening to “blow [Mrs. Adkins’s] head off” if she called anyone constituted restraint “with the intent to hold [the victims] for any ransom, reward or concession” within W. Va. Code § 61‑2‑14a(a)(1) (2017). The “concession” here was their forbearance from seeking help or leaving in exchange for their lives.
  • Incidental kidnapping: Dolen’s argument that the kidnappings were merely incidental to the robbery under State v. Miller was not preserved. He never raised the “incidental” theory in his Rule 29 motion or jury‑instruction objections. Under Sites, issues not distinctly raised below are not reviewable on appeal.

III. Detailed Analysis

A. Factual and Procedural Context

The opinion is careful to recite only those facts necessary for the issues on appeal. Those facts can be grouped in three clusters: the kidnapping conduct, the cell‑site evidence, and the trial motions.

1. Kidnapping facts

  • Both victims were elderly (79 and 76), married for 56 years, and gravely injured during the home invasion.
  • Mr. Adkins was beaten in the head with a rifle, lost consciousness, suffered multiple lacerations, a nasal fracture, subdural hematoma, and a traumatic brain injury; his hand required removal of a rifle sight.
  • Mrs. Adkins was struck with a gun, knocked out, and later diagnosed with a broken tibia, bone damage under the kneecap, torn ligaments, and injuries leaving scarring.
  • The perpetrator handcuffed both victims individually and then together using multiple sets of handcuffs kept in the home; first responders and EMS confirmed they were still cuffed on arrival.
  • Crucially, Mrs. Adkins testified that the assailant:
    • told them he would get them help within about twelve minutes of leaving, and
    • threatened that if she called anybody, he would “come back and blow [her] head off.”
  • It was only after he left that Mr. Adkins managed to unlock one set of cuffs, retrieve a phone, and allow Mrs. Adkins to call 911; she then crawled to unlock the door.

2. Cell‑site PowerPoint and discovery timeline

  • The State had obtained AT&T CDRs (including GPS coordinates of towers) and subscriber records linking the phone number to Dolen.
  • The West Virginia Fusion Center used those CDRs and a cell‑tower database to create a PowerPoint showing:
    • maps with tower locations, sectors, and the approximate location of the phone over time on the day of the crime, and
    • animated sequences illustrating the phone’s movement across tower sectors.
  • The prosecutor represented that the PowerPoint had been produced on a thumb drive, with prior discussions about using Lt. Eddie Prichard as the qualified expert to interpret it because the Fusion Center author lacked courtroom qualifications.
  • The defense maintained that, while it had the raw AT&T records, it never received the PowerPoint until day four of trial, during a recess; counsel moved to exclude the PowerPoint and to bar expert interpretation, or alternatively to continue the case to secure their own expert.
  • The circuit court:
    • explicitly refused to make a credibility finding as to whether the thumb drive had in fact been produced pre‑trial (“I don’t think anybody here is lying”),
    • confirmed that the defense had always had the AT&T records and subscriber information, and
    • found the defense had at least a weekend to review the PowerPoint before trial resumed Monday afternoon.

3. Lt. Prichard’s expert testimony

  • Prichard, a Huntington Police Department crime analyst supervisor, had specialized training in cell networks, CDRs, GPS, and mapping (National White Collar Crime Center, use of PenLink, etc.).
  • He was qualified without objection as an expert on “call detail records and GPS locations.”
  • He testified that:
    • the Fusion Center’s PowerPoint was based on the same AT&T CDRs introduced at trial,
    • he had independently plotted those CDR GPS coordinates in Google Maps and in PenLink’s mapping function, and
    • his own mapping matched the Fusion Center’s mapping—he used the PowerPoint as a visual aid whose accuracy he had personally verified.
  • On cross, he confirmed he did not create the PowerPoint; defense counsel characterized his role as telling the jury “what the Fusion Center did,” a characterization he agreed with in shorthand.

4. Kidnapping motions and instructions

  • Dolen moved for a Rule 29 acquittal on the kidnapping counts, but argued only that:
    • kidnapping requires more than just restraint, and
    • there was no evidence of an intent to hold the victims for ransom, reward, concession, to transport them to inflict injury, or to terrorize them.
  • He did not argue that any kidnapping was “incidental” to the robbery under State v. Miller.
  • The court instructed the jury using the statutory language of W. Va. Code § 61‑2‑14a(a) (2017) and, for both Counts 9 and 10, required proof beyond a reasonable doubt that Dolen:
    • by force, threat of force, or duress,
    • took custody of, confined, concealed, or otherwise restrained each victim,
    • with the intent to hold that victim “for any ransom, reward, or concession.”

B. Discovery and Rule 16: No Prejudicial Violation

1. Legal framework: Rule 16 and the Rusen/Grimm prejudice test

Rule 16(a)(1)(E) of the West Virginia Rules of Criminal Procedure requires the State, upon request, to disclose expert witness information, including:

  • a written summary of the expert’s anticipated testimony,
  • the expert’s opinions,
  • the bases and reasons for those opinions, and
  • the expert’s qualifications.

Violation of a Rule 16 discovery order does not automatically require exclusion. The Court reaffirmed the long‑standing Rusen/Grimm standard for prejudice:

“The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two‑pronged analysis: (1) did the non‑disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant’s case.”
— Syl. Pt. 2, State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994); see also Syl. Pt. 2, State v. Grimm, 165 W. Va. 547, 270 S.E.2d 173 (1980).

The standard of review is abuse of discretion for discovery rulings and evidentiary admissions (Peyatt).

2. The Court’s application in Dolen

Significantly, the circuit court and the Supreme Court both declined to resolve the disputed factual question whether the PowerPoint had in fact been produced pre‑trial. Instead, the focus was on prejudice.

The key facts driving the Court’s “no prejudice” conclusion were:

  • The defense already had the underlying data. Dolen conceded he had the AT&T CDRs and subscriber records—the very data from which the PowerPoint was built. Defense counsel described the CDRs as “just a bunch of numbers,” but that goes to their utility, not their availability.
  • The defense had a meaningful (if not ideal) opportunity to review the PowerPoint. Even under the defense’s version, the PowerPoint came into their hands on Friday; the expert did not testify until Monday afternoon, giving the defense a weekend to examine it.
  • The defense could have independently developed an expert analysis earlier. The court noted Dolen’s theory throughout trial appeared to be “it wasn’t me,” including suggestions that others were responsible (e.g., Jeremy Artrip). That made the phone’s location a potentially exculpatory or inculpatory issue. The court reasoned that:
    • because the CDRs were in defense hands well before trial,
    • the defense had every reason and opportunity to have those records examined by its own expert, regardless of what the State’s expert would say,
    • so any State failure to disclose the PowerPoint should not have “dampened the initiative” of the defense to analyze “potential alibi data.”

In light of those facts, the Supreme Court endorsed the circuit court’s conclusion that any nondisclosure did not:

  • “surprise the defendant on a material fact”—the existence and nature of the CDRs and cell‑site location evidence was known; and
  • “hamper the preparation and presentation” of the defense—because nothing prevented the defense from using an expert to interpret data it already had, and the defense had at least some time to review the PowerPoint itself before it was used.

The Court thus held there was no abuse of discretion in admitting the PowerPoint and allowing expert testimony about it.

3. Practical implications

Some clear practice lessons emerge for both sides:

  • Documenting discovery is essential. The trial judge expressly reminded counsel that “whenever discovery is handed over by either party, it should be documented in a filing with the court.” Handling thumb drives or physical media without contemporaneous filing is an invitation to later factual disputes.
  • Defense strategy with CDRs cannot be passive. Once the defense is on notice that CDRs exist and that cell‑location will be used (the prosecutor even previewed this in opening), it is risky to wait to see exactly how the State will present them before pursuing an independent expert. Under Dolen, appellate courts may treat that as a tactical choice rather than prejudice.
  • Continuance vs. exclusion. Defense counsel mentioned a continuance as a possible remedy but described it as “obviously unpalatable.” That strategic reluctance undercut the argument that late disclosure truly “hampered” the defense—it suggested that even with more time, they might not have actually retained an expert.

C. Confrontation Clause and Expert Use of Fusion Center Cell‑Site Mapping

1. The modern Confrontation Clause template

The Sixth Amendment and Article III, § 14 of the West Virginia Constitution guarantee the right “to be confronted with the witnesses” against the accused, which includes the right to cross‑examine (Mullens).

The key federal and state Confrontation cases the Court canvassed are:

  • Crawford v. Washington, 541 U.S. 36 (2004): Bars admission of “testimonial” hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross‑examine.
  • Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009): Certificates of analysis identifying drugs are testimonial; the analysts are “witnesses” and must be subject to confrontation.
  • Bullcoming v. New Mexico, 564 U.S. 647 (2011): The State cannot introduce a blood‑alcohol certificate through a “surrogate” analyst who neither performed nor observed the test; the defendant has a right to confront the actual certifying analyst.
  • State v. Kennedy, 229 W. Va. 756, 735 S.E.2d 905 (2012): Applying Melendez‑Diaz, held that a pathologist cannot simply transmit another doctor’s autopsy opinions to the jury; that portion is testimonial and violates confrontation. But the same pathologist can offer independent opinions based on autopsy photos and other evidence.
  • Smith v. Arizona, 602 U.S. 779 (2024): Reinforces that a testifying expert may violate the Confrontation Clause if his opinion rests on testimonial statements of a non‑testifying analyst, even if the underlying statement is described as a “basis” rather than admitted for its truth.

The Court distilled a core principle from this line: the State may not introduce the results of forensic testing of physical evidence through a surrogate expert who did not perform (or directly participate in) the testing, where those results are testimonial in nature. However, an expert may give independently formed opinions based on admissible evidence, even if another expert has also opined on the same data.

2. The nature of the PowerPoint and Prichard’s role

The Confrontation issue in Dolen presented a more modern twist:

  • The PowerPoint was not itself a forensic test of physical evidence; it was a visual mapping of machine‑generated network data (CDRs) using GPS coordinates supplied by AT&T.
  • The unknown Fusion Center analyst:
    • took CDRs containing dates, times, and tower GPS coordinates,
    • used a database of tower locations and sectors, and
    • created map images—and animations—showing where the phone was when it connected to particular towers throughout the relevant time period.
  • Prichard:
    • testified as the State’s only qualified expert on CDR and tower mapping,
    • described how CDRs work and what information they contain,
    • confirmed the PowerPoint relied on the same AT&T CDRs admitted into evidence, and
    • explicitly stated that he:
      • plotted the same GPS coordinates on Google Maps “to verify the accuracy of the Fusion Center’s work,” and
      • loaded the CDRs into PenLink, which produced mapping “with the same results as the program that the Fusion Center used.”

In other words, the PowerPoint did not embody a non‑replicable lab test (like a blood‑alcohol measuring device or controlled‑substance GC‑MS run). It was a graphical representation of raw data that any competent analyst with the same training and tools could—and did—reconstruct.

3. The Court’s reasoning: independent replication vs. surrogate testimony

The defense’s Confrontation argument was straightforward: the Fusion Center analyst who “did the work” was not called, so the State could not introduce the PowerPoint or have Prichard explain it without violating the right to confront that analyst.

The Court rejected that framing, relying heavily on the distinction, recognized in Kennedy and Smith, between:

  • a testifying expert who simply repeats the out‑of‑court conclusions of a non‑testifying analyst (impermissible), and
  • a testifying expert who offers independent opinions formed by his own review of underlying data and is subject to cross‑examination about that process (permissible).

The Court emphasized several features of Prichard’s testimony:

  • He did not merely read or parrot the PowerPoint’s assertions.
  • He independently analyzed the CDRs using his own tools and training, and affirmed that his independent mapping matched the PowerPoint.
  • He treated the PowerPoint as a convenient visual depiction of the data and conclusions he had already reached through his own analysis.
  • There was no prior, unexamined “test result” or “certificate” on which he was relying for the substance of his opinion; there was just the same raw network data presented in multiple graphical forms.

On that basis, the Court analogized to federal cases like United States v. Soto, 720 F.3d 51, 59–60 (1st Cir. 2013), which upheld testimony by an agent who separately examined a computer and testified to his results without implicating confrontation concerns.

Crucially, the Court framed the expert’s role this way: Prichard “did not testify as a surrogate for someone at the Fusion Center, but as an expert who independently reviewed, replicated, and confirmed the accuracy of the information presented in the PowerPoint.” Because he was available for cross‑examination, the Confrontation Clause was satisfied.

4. What Dolen tells us about technology‑based expert evidence

This opinion suggests several practical boundaries:

  • Machine‑generated, re‑analyzable data is different from single‑run lab tests. Where the State has:
    • raw, machine‑generated data (like CDRs), and
    • a qualified expert who can independently process that data into a mapping or other analysis,
    confrontation concerns are much reduced if:
    • the expert actually does his own analysis, and
    • any third‑party visualization (e.g., a Fusion Center map) is just a depiction of those same, independently generated conclusions.
  • Surrogate testimony remains impermissible. The opinion should not be read to allow a testifying expert to simply adopt another analyst’s map or report without independent work. If Prichard had not verified the PowerPoint or conducted his own mapping, but instead merely narrated someone else’s conclusions, Melendez‑Diaz, Bullcoming, Smith, and Kennedy would likely have commanded exclusion.
  • Visual aids vs. testimonial statements. The Court did not explicitly decide whether the PowerPoint, viewed in isolation, was “testimonial.” Instead, it effectively treated it as a demonstrative visual aid for Prichard’s live, independently formed testimony. Future challenges could arise if a PowerPoint or analytical report is introduced as substantive evidence without a replicating expert.
  • Tactical considerations for the defense. Counsel can and should probe:
    • whether the testifying expert actually re‑ran or re‑mapped the data,
    • whether the expert relied on any subjective judgments or proprietary algorithms in the third‑party software, and
    • whether the expert can explain and defend the analysis without referring to a non‑testifying analyst’s conclusions.
    Dolen signals that when the State can show genuine independent replication, Confrontation challenges will likely fail.

D. Kidnapping and the “Ransom, Reward or Concession” Prong

1. The statutory language and prior interpretation

The kidnapping statute in effect at the time of the offense, W. Va. Code § 61‑2‑14a(a) (2017), provided in relevant part:

Any person who unlawfully takes custody of, conceals, confines or restrains another person against his or her will by means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation or enticement with the intent:
(1) To hold another person for ransom, reward or concession; … is guilty of a felony.

Dolen’s challenge centered on the “concession” language. He argued that no “concession” had been sought because:

  • the robber wanted no advantage beyond the restraint necessary to carry out the robbery; and
  • a “concession” must be something more akin to a hostage negotiation or a demand for a benefit from a third party.

The Court rejected that narrow reading, relying in part on State v. Hanna, 180 W. Va. 598, 378 S.E.2d 640 (1989), which interpreted an earlier version of the statute that referred to “any concession or advantage of any sort.” In Hanna, the Court held:

“Although a sexual purpose or motivation has been held to satisfy kidnapping statutes requiring such an intent, the intent to demand a concession or advantage has a much broader meaning and may encompass other benefits or purposes as well.”
— 180 W. Va. at 605, 378 S.E.2d at 647 (emphasis added)

Federal courts have cited Hanna to support reading “concession” broadly, including for supervised‑release violations (United States v. D’Arco, 1998 WL 66592 (4th Cir. Feb. 19, 1998) (per curiam)).

2. Applying the Guthrie sufficiency standard

Under State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), the Court reviews sufficiency claims by:

  • viewing all evidence, direct and circumstantial, in the light most favorable to the prosecution,
  • crediting all inferences and credibility assessments that the jury might reasonably have drawn in the State’s favor, and
  • upholding the verdict unless the record contains no evidence from which a rational jury could find guilt beyond a reasonable doubt.

This is intentionally a “heavy burden” for defendants; appellate courts do not re‑weigh evidence or second‑guess credibility determinations.

3. Why the Court found a “concession” here

The key facts, from the State’s perspective, were:

  • The victims were severely injured, elderly, and handcuffed together—they were physically vulnerable and dependent on immediate medical assistance.
  • The assailant explicitly promised that he would get them help within roughly twelve minutes of leaving.
  • At the same time, he threatened that if Mrs. Adkins called anyone herself, he would return and “blow [her] head off.”

The Court accepted the State’s characterization that:

  • the “concession” Dolen sought was the victims’ forbearance from seeking help or leaving,
  • in exchange for the benefit of him not returning to kill Mrs. Adkins, and
  • the restraint (handcuffing them together) was part of holding them in that coerced posture until he could safely depart and destroy evidence (e.g., burning the truck).

A couple of points reinforce the Court’s view:

  • Dolen’s own example—“I will let you go when you say you are sorry”—was rejected as materially different from the actual threat. In both scenarios, the kidnapper demands a victim’s compelled conduct (or non‑conduct) as the price for release or safety. Here, it was “do not call for help or I will kill you.”
  • Hanna already signaled that “concession” is not limited to third‑party negotiations; it can cover any advantage or benefit the kidnapper seeks from the victim, including psychological or practical leverage.

Under Guthrie, the Court had little difficulty concluding that a rational jury, properly instructed, could find:

  • an unlawful restraint by force and threat (handcuffs plus explicit death threat), and
  • an intent to hold the victims for the concession that they not seek assistance or attempt to free themselves, under pain of being killed.

The sufficiency challenge therefore failed.

E. Incidental Kidnapping Under Miller: The Necessity of Preservation

1. The Miller limitation

West Virginia’s leading case on incidental kidnapping, State v. Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985), recognizes the risk that a broadly worded kidnapping statute could convert many robberies, assaults, or sexual assaults into kidnapping charges whenever the victim is briefly moved or restrained.

To avoid overreach, Miller holds:

“In interpreting and applying a generally worded kidnapping statute, such as [W. Va. Code § 61‑2‑14a], in a situation where another offense was committed, some reasonable limitations on the broad scope of kidnapping must be developed. The general rule is that a kidnapping has not been committed when it is incidental to another crime. In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm.”
— Syl. Pt. 2, Miller

More recently, the Court has sometimes analyzed the incidental‑kidnapping question through the lens of evidentiary sufficiency (State v. Lewis, 238 W. Va. 627, 797 S.E.2d 604 (2017)).

2. Dolen’s failure to raise the issue at trial

On appeal, Dolen argued that handcuffing the Adkinses was merely part of the robbery and did not constitute a separate kidnapping under Miller.

However, at trial he never raised Miller or the “incidental” concept in:

  • his Rule 29 motion for judgment of acquittal, or
  • objections to jury instructions, or
  • any other directed‑verdict or post‑trial motion.

Instead, his Rule 29 argument focused entirely on whether the State had proved the requisite intent elements (ransom, reward, concession, transport, terrorizing). There was no articulated claim that the restraint was legally “incidental” to the robbery within the meaning of Miller.

3. The Court’s reliance on preservation doctrine

The Court invoked the familiar preservation rule from State v. Sites and related cases:

“‘To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.’ Syl. pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996).”
— Syl. Pt. 1, State v. Sites, 241 W. Va. 430, 825 S.E.2d 758 (2019).

Because the incidental‑kidnapping argument was:

  • not fairly presented,
  • not ruled on by the circuit court, and
  • not within a broader, clearly preserved constitutional or statutory claim,

the Supreme Court declined to reach it. The Court did not undertake plain‑error review, and simply noted that, as in State v. Redman, it would not address arguments raised for the first time on appeal.

For practitioners, this is a strong reminder that Miller must be explicitly invoked—ideally through:

  • a pre‑verdict motion for judgment of acquittal specifically arguing incidental kidnapping, and/or
  • a request for a jury instruction embodying the Miller factors.

F. Standards of Review Framing the Decision

The Court applied several familiar standards:

  • Discovery / evidentiary rulings: abuse of discretion (Rusen, Peyatt).
  • Confrontation Clause: while no formal standard was applied (because the issue was not raised below), the Court acknowledged that failure to observe a constitutional right is reversible unless harmless beyond a reasonable doubt (Grob; Mechling). The State pointed to a three‑layer standard (abuse of discretion for orders, clear error for fact findings, de novo for legal rulings), but it did not strictly apply because the trial court had not ruled on confrontation as such.
  • Sufficiency of the evidence: Guthrie’s heavy‑burden standard (view evidence in the light most favorable to the prosecution, respect jury credibility determinations, set aside the verdict only if no evidence supports guilt beyond a reasonable doubt).
  • Issue preservation: under Sites, an issue must be articulated with distinctiveness to alert the circuit court to the claimed defect.

IV. Simplifying Key Doctrines and Concepts

Several technical doctrines are central to the opinion. Reduced to plain terms:

1. Rule 16 expert discovery and prejudice

  • The defense can demand that the State disclose in advance what its experts will say and why.
  • If the State fails to comply, the key appellate question is not “was there a mistake” but “did that mistake:
    • surprise the defense on an important fact, and
    • actually hurt the defense’s ability to prepare and present its case?”
  • If the same information was otherwise available in another form (e.g., raw records), and the defense could have pursued its own expert, courts are reluctant to find prejudice.

2. Confrontation Clause and testimonial statements

  • You have the right to cross‑examine people whose statements are used to prove you guilty.
  • When a lab analyst signs a certificate or report saying “this is cocaine” or “your blood alcohol level was X,” that report is usually considered a testimonial statement.
  • The prosecution normally must call that analyst to testify, or show the analyst is unavailable and the defense had a prior opportunity to cross‑examine.
  • However, if a different expert:
    • reviews the raw data or physical evidence independently, and
    • forms his own opinions and explains his own analysis,
    then confrontation is satisfied as long as he is subject to cross‑examination—even if another expert previously did similar work.

3. Historical cell‑site analysis

  • Cell providers log every call, text, and data session, including time and which tower handled the connection.
  • Those records (CDRs) include GPS coordinates of towers and often sector information (the direction the antenna was facing).
  • An expert can map those coordinates over time to estimate where a phone likely was and how it moved.
  • In West Virginia, testimony about “historical cell‑site data” requires a qualified expert (State v. Johnson, 238 W. Va. 580, 797 S.E.2d 557 (2017)).

4. “Ransom, reward, or concession” kidnapping

  • You commit kidnapping under this prong if you restrain someone by force or threat in order to get some benefit from them—a ransom, a reward, or a “concession.”
  • A “concession” is broad; it can be:
    • money or property,
    • sexual favors,
    • agreement to do or not do something (e.g., not call police, not leave a place),
    • or almost any advantage or leverage you demand in exchange for their freedom or safety.

5. Incidental kidnapping

  • Sometimes, during another crime (like robbery), the victim is briefly moved or tied up.
  • Courts ask whether that restraint is:
    • just part of the main crime (e.g., moving a store clerk a few feet to the safe during a robbery), or
    • a separate wrong—more movement, longer detention, or distinctive risk of harm beyond the main crime.
  • If the restraint is “incidental” under Miller, then kidnapping should not be charged or upheld separately.

6. Preservation of error

  • To complain about a problem on appeal, you must have clearly raised that same problem in the trial court.
  • It is not enough to object vaguely or to argue a related, but different, legal theory.
  • Appellate courts generally will not consider brand‑new legal theories, even for serious issues, if they were not presented below, absent exceptional circumstances or plain error (which the Court did not invoke here).

V. Broader Impact and Future Litigation

1. Discovery and fusion‑center products

Dolen highlights emerging issues around analytic products generated by multi‑agency entities like fusion centers:

  • Production logistics. Large files and mapping products often move by thumb drive or secure upload rather than conventional copies. Courts are now clearly signaling that who passed what to whom—and when—must be documented in the docket to avoid later disputes.
  • Defense diligence. Where raw data (e.g., CDRs) has been produced, courts may treat the defense as on notice of that form of evidence even if the State’s final analytic presentation (e.g., a PowerPoint) is produced late. That will make it harder to secure exclusion absent clear, case‑specific prejudice.
  • Remedial calculus. When late disclosure is shown, trial courts retain flexibility:
    • grant short continuances,
    • limit use of particularly prejudicial animations or demonstratives, or
    • in egregious cases, exclude the evidence or even dismiss charges (Rusen).
    Dolen indicates that when the defense declines a continuance and had early access to the underlying data, exclusion will be disfavored.

2. Technology‑driven expert evidence and confrontation

As digital evidence proliferates, Dolen provides a workable model for avoiding Confrontation Clause problems:

  • Use a fully qualified, hands‑on expert. The State should present a witness who personally works with the data, runs the analyses, and can defend the methodology.
  • Treat external analytic products as demonstrative aids. Fusion center outputs, vendor‑generated maps, and other products are safer when they are used as illustrations of what the testifying expert has independently derived, not as stand‑alone proof.
  • Explicit replication is powerful. Having the expert testify that he re‑mapped the CDRs and achieved identical results—while identifying the tools and steps he used—was central to the Court’s comfort that no surrogate testimony occurred.

At the same time, Dolen leaves open questions:

  • How would the analysis change if the PowerPoint embodied complex inferential steps (e.g., proprietary signal‑propagation models) that the testifying expert could not replicate?
  • Would a sparse record of replication (e.g., “I looked at it and it seems right”) suffice?

Future litigation will likely test the boundaries of what counts as genuine “independent analysis” versus thinly veiled adoption of another analyst’s work.

3. Kidnapping doctrine and charging decisions

On kidnapping, Dolen has two main effects:

  • Broadening practical understanding of “concession.” Prosecutors can point to Dolen as authority that:
    • a threat like “don’t call for help or I’ll kill you” can satisfy the “concession” prong when coupled with restraint, especially where the victims are injured or otherwise dependent;
    • the demanded benefit need not be money or advantage vis‑à‑vis a third party; it can be the victim’s compelled inaction or compliance.
  • Importance of timely Miller challenges. Defendants must raise incidental‑kidnapping arguments explicitly at trial if they want appellate review. Otherwise, kidnapping convictions arising out of robberies with significant restraint and threats may stand even if an incidental argument might have traction on the merits.

Given statutory amendments to W. Va. Code § 61‑2‑14a after 2017 (not fully analyzed in the opinion), trial courts and litigants will need to consider how Dolen’s construction interacts with current language, particularly any changes to the “terrorize” and transport provisions.

VI. Conclusion

State v. Dolen is not a sweeping doctrinal revolution, but it is a significant application and clarification of existing principles in a technologically sophisticated context. The Court:

  • Reaffirms that Rule 16 discovery violations are assessed through a two‑part prejudice lens focused on surprise and impairment of defense preparation, not on technical noncompliance alone.
  • Clarifies that a qualified expert may testify about cell‑site mapping produced by a fusion center without violating the Confrontation Clause, so long as the expert independently re‑analyzes the underlying data, verifies the results, and is cross‑examinable on his own methods and conclusions.
  • Confirms that “ransom, reward, or concession” kidnapping encompasses restraints coupled with threats designed to force victims not to seek help or escape, reinforcing a broad, functional understanding of “concession.”
  • Underscores the enduring importance of issue preservation: sophisticated doctrines like incidental kidnapping under Miller will not be addressed for the first time on appeal.

Going forward, Dolen will guide how West Virginia courts handle fusion‑center and other third‑party analytic products, shape charging and sufficiency analysis in kidnapping cases involving threats to silence or immobilize victims, and reinforce the central role of trial‑level litigation choices in framing appellate review.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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