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State of West Virginia v. Fox
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1998 Term __________ No. 25171 __________ STATE OF WEST VIRGINIA, Appellee v. JAMES A. FOX, Appellant __________________________________________________________________ Appeal from the Circuit Court of Harrison County Honorable John L. Marks, Jr., Judge Civil Action No. 96-F-127-1 AFFIRMED __________________________________________________________________ Submitted: October 7, 1998 Filed: November 23, 1998 Darrell V. McGraw, Jr., Esq. Attorney General Rory L. Perry, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for the Appellee Drema D. Sinkkanen, Esq. Public Defender Corporation Clarksburg, West Virginia Attorney for the Appellant

The Opinion of the Court was delivered PER CURIAM. CHIEF JUSTICE DAVIS dissents. JUSTICE STARCHER dissents. SYLLABUS "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syllabus Point 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983). Per Curiam: This case is before this Court upon appeal of a final order of the Circuit Court of Harrison County entered on October 9, 1997. The appellant, James A. Fox, was convicted by a jury of third offense driving under the influence [hereinafter "DUI"]. In this appeal, the appellant contends that the circuit court erred by refusing to bifurcate the issue of guilt on this offense from the issue of whether he had previously been convicted of DUI. Essentially, the appellant argues that prior DUI convictions are not elements of third offense DUI and should only be considered for sentencing

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enhancement purposes. This Court has before it the petition for appeal, all matters of record, and the briefs and argument of counsel. For the reasons set forth below, we affirm the appellant's conviction. I. On July 27, 1996, the appellant was arrested and charged with DUI after he was observed by two police officers driving the wrong way down a one-way street in Clarksburg, West Virginia. According to the police officers, the appellant failed a series of field sobriety tests and refused to submit to a secondary chemical test at the police station. A background check of the appellant revealed two prior DUI convictions. Subsequently, the appellant was indicted on one count of third offense DUI. Prior to trial, the appellant moved to bifurcate the issue of his guilt on this offense from the issue of whether he had previously been convicted of DUI. The motion was denied, but the circuit court did permit a written stipulation concerning the two prior convictions to be read to the jury in lieu of testimonial evidence sought to be admitted by the State. Following a one day jury trial on April 14, 1997, the appellant was convicted of third offense DUI. II. We have previously held that where the issue on 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. Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 140, 459 S.E.2d 415, 417 (1995). However, "[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion[.]" State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983). Accordingly, "[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syllabus Point 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983). See also Syllabus Point 2, State v. Perolis, 183 W.Va. 686, 398 S.E.2d 512 (1990); Syllabus Point 4, State v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987). In this case, the appellant argues that evidence of his prior DUI convictions should have only been utilized during sentencing and should not have been admitted at trial. In other words, the appellant asserts that the finding of a prior conviction or lack thereof, is not an element of third offense DUI. He contends that W.Va. Code

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