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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term

No. 33298


FILED November 21, 2007
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
DANNY L. CECIL,
Defendant Below, Appellant


Appeal from the Circuit Court of Putnam County
Honorable O. C. Spaulding, Judge
Criminal Action No. 05-F-133
REVERSED AND REMANDED


Submitted: September 12, 2007 Filed: November 21, 2007 James M. Cagle, Esq. Mark McMillian, Esq. Charleston, West Virginia Attorneys for Appellant Mark A. Sorsaia, Esq. Prosecuting Attorney Angela M. Hanks, Esq. Assistant Prosecuting Attorney Winfield, West Virginia Attorneys for Appellee

The Opinion of the Court was delivered PER CURIAM. JUSTICE MAYNARD dissents.

SYLLABUS BY THE COURT

1.

"`Where the issue on an appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syllabus Point 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999). 2. "A trial court's evidentiary rulings, as well as its application of the

Rules of Evidence, are subject to review under an abuse of discretion standard." Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). 3. "A motion for a new trial on the ground of the misconduct of a jury is

addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of. The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial, proof of mere opportunity to influence the jury being insufficient." Syllabus Point 7, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932). 4. "The credibility of a witness may be attacked or supported by evidence

in the form of opinion or reputation, but subject to certain limitations. The evidence may refer only to character for truthfulness or untruthfulness. A fair reading of Rule 608(a) of the West Virginia Rules of Evidence provides that a witness may be impeached by proof that the i

witness is untruthful. Under this rule, no distinction is made between nonparty witnesses and party witnesses. The rule applies with equal force to the defendant in a criminal case. The form of proof may be either `reputation' or `opinion' evidence." Syllabus Point 4, State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995). 5. "A babysitter may be a custodian under the provisions of W.Va.Code,

61-8D-5 [1998], and whether a babysitter [is] in fact a custodian under this statute is a question for the jury." Syllabus Point 1, State v. Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999). 6. "W.Va.Code, 61-8D-5(a) (1988), states, in part: `In addition to any other

offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection[.]' Thus, the legislature has clearly and unequivocally declared its intention that sexual abuse involving parents, custodians, or guardians, W.Va.Code, 61-8D-5, is a separate and distinct crime from general sexual offenses, W.Va.Code, 61-8B-1, et seq., for purposes of punishment." Syllabus Point 9, State v Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). 7. "In order to receive a new trial, a party challenging a verdict based on

the presence of a juror disqualified under W.Va.Code

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