Coleman v. Sopher

¶1dissenting:

¶2(Filed Nov. 21, 1997)

¶3To begin with, there is simply no tort here. This ease is just another example of some of the craziness going on in the American judicial system today. This case is not about righting a wrong, it is all about the relentless pursuit of money. It is a fake claim based on imagined evidence.

¶4First, this family sought an autopsy of their loved one. The family claims the autopsy was done at their request, absent which the autopsy would not have been performed. For what purpose did they seek to have the body of their loved one dissected? Not for medical science or to solve a crime. They wanted their loved one dissected in order to get a black lung check. Their sensibilities were not offended in the least by having the body of their loved one cut open, bones sawed apart and organs removed and examined. In fact, that is exactly what they wanted done so they could get the black lung cheek.

¶5After the first autopsy, the remains of the deceased were interred. The plaintiffs then had the coffin disinterred, the body exhumed and dissected a second time in a second autopsy, all in their dogged effort to win the black lung claim. The body was autopsied the second time by Dr. E. Hansbarger. It was done in a poorly lit, dingy back room at the mausoleum. Dr. Hansbarger wanted to take the body outside and do the dissection behind the building in broad daylight. Cemetery officials refused to allow him to do so. None of these facts disturbed the family.

¶6Dr. Hansbarger then took the lungs and central chest from the body, put the organs in plastic bags, took them in the bags to his lab and analyzed them. Then he disposed of them. The lungs and central chest were never returned to the body and were not reinterred. Oddly, these facts did not offend the family. They are not in the least upset that Dr. Hansbarger disposed of the deceased’s lungs and central chest, but they are emotional wrecks because the heart is not with the body. Dr. Hansbarger further testified at trial that it was possible he missed *608the presence of the heart during his autopsy. Dr. Sopher also testified he did not remove the heart during the first autopsy and his written records reflect that as well. Based on this kind of appallingly weak evidence, this Court has upheld a simply awful verdict.

¶7I further dissent because I believe the circuit court abused its discretion by admitting testimony at trial that Dr. Sopher had donated brain tissue to the Marshall University Medical School without notice to decedents’ family members in the past.

¶8The majority declines to address the West Virginia Rule of Evidence 404(b) issue because it finds Dr. Sopher failed to raise, on the record, the specific errors he now asserts in his appeal to this Court. The majority notes that Dr. Sopher’s counsel made two objections pertaining to the form of the particular question being asked Dr. Sopher on cross-examination and one objection based on relevancy. The majority states further that “[wjhile the record indicates that Sopher presented a motion in limine for the exclusion of the evidence herein complained of, the record fails to establish that the specific challenges now raised were presented to or addressed by the court below. Thus, Sopher failed to preserve these alleged errors.” I disagree with the majority’s assessment of what the record reveals concerning Dr. So-pher’s preservation of the errors now raised in this Court.

¶9Although the portion of the pre-trial proceedings relevant to this issue is anything but a model of clarity, I believe Dr. Sopher’s counsel said enough to give the trial court an opportunity to address the issue at a time when corrective action could have been taken. West Virginia Rule of Evidence 404(b) provides, in part, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Based on this rule, Dr. Sopher now asserts, in part, that the testimony at issue “only tended to prove [his] character and his propensity to act in conformity therewith.” A careful reading of portions of the pre-trial proceedings of October 1, 1992 reveals a dialogue between the court, Mr. Cometti, attorney for the appel-lees, and Mr. Johns, attorney for Dr. Sopher, concerning proposed evidence, including testimony that Dr. Sopher’s office “had shaved off parts of brains from cadavers in their custody and sent to Marshall University” for the purpose of general experimentation. After much discussion, the court determined “that probably this evidence would be admissible. At least, I don’t think I ought to sustain the motion in limine ” (emphasis added). Dr. Sopher’s attorney responded by requesting permission to submit additional cases on the issue and stated, in part, “I did not think that this would be something that would be a difficult issue. I thought the law was fairly straight forward that you can’t use other similar acts to show that that’s the way someone acted on this occasion ...” (emphasis added). He then proceeded to argue that the evidence in question did not properly set forth a pattern or habit of behavior. In fact, the discussion at the preliminary hearing precipitated by Dr. Sopher’s motion in limine concerning the testimony at issue, as well as other evidence, is quite in-depth and covers twelve pages of transcript. It is obvious to me, and it should be obvious to the majority, that Dr. Sopher’s attorney presented the circuit court with a sufficiently specific legal argument in order to adequately preserve the error assigned in his appeal to this Court.

¶10In addition, the trial transcript reveals that when the appellees’ counsel elicited the testimony at issue from Dr. Sopher on cross-examination, Dr. Sopher’s counsel stated “I object to his line of questioning on the basis of irrelevance.” Clearly, counsel objected and he objected on grounds of relevance. How the majority can claim that a proper objection, timely made and based on relevancy, failed to adequately preserve the error now raised on appeal is a mystery to me. The purpose of Rule 404 is to determine relevance. The title of Article IV of the West Virginia Rules of Evidence, which includes Rules 401 through 411, is “RELEVANCY AND ITS LIMITS.” Each and every rule from 401 through 411 deals with relevancy and only with relevancy. Obviously then, an objection at trial to the admission of evidence based on relevancy should be *609sufficient to preserve an error grounded in Rule 404(b).

¶11Since filing a motion in limine resulting in a hearing covering twelve pages of transcript is not sufficient to preserve an error on appeal, and raising an objection at trial based on relevancy is likewise insufficient, I am at a loss to know what a lawyer in West Virginia has to do to preserve an error for purposes of appeal.

¶12I believe, also, that if the Court had considered Dr. Sopher’s Rule 404(b) assignment of error, it would have found the testimony at issue to be inadmissible. In Syllabus Point 8 of TXO Production v. Alliance Resources, 187 W.Va. 457, 419 S.E.2d 870 (1992)1 this Court formulated the standard of admissibility under Rule 404(b):

Protection against unfair prejudice from evidence admitted under Rule 404(b) of the West Virginia Rules of Evidence [1985] is provided by: (1) the requirement of Rulé 404(b) that the evidence be offered for a proper purpose; (2) the relevancy requirement of Rule 402 — as enforced through Rule 104(b); (3) the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice; and, (4) Rule 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

¶13In Syllabus Points 1 and 2 of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994) this Court expanded upon this standard by stating:

1. When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court’s instruction.

2. Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court’s general charge to the jury at the conclusion of the evidence.

¶14In the recent case of Stafford v. Rocky Hollow Coal Company, 198 W.Va. 593, 482 S.E.2d 210 (1996), this Court utilized this very standard. In Stafford, the plaintiff instituted a civil action against his former employer alleging, among other things, wrongful discharge and breach of an employment *610contract. A verdict was returned in favor of the plaintiff, and the employer appealed to this Court claiming, inter alia, that the trial court admitted evidence of prior bad acts of the employer in violation of Rule 404(b). After assessing the facts in light of the above-stated standard, this Court determined that the trial court did not conduct the requisite analysis prior to the admission of the prior bad acts evidence and, consequently, reversed the verdict and remanded the matter for further proceedings.

¶15In the present case, a properly conducted assessment of the testimony at issue in light of the standard stated above would likewise result in a determination that the trial court abused its discretion in admitting the testimony. I believe that the testimony that Dr. Sopher donated brain tissue to the Marshall University Medical School in the past without notifying relatives tended only to prove Dr. Sopher’s character and his propensity to act in conformity therewith. Although the appellees elicited the testimony for the stated purpose of showing motive or intent, they failed to explain how such evidence proved that Dr. Sopher would have a motive for removing or that he intentionally removed Coleman’s heart. Further, this Court stated in Syllabus Point 9 of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994):

Although Rules 401 and 402 of the West Virginia Rules of Evidence strongly encourage the admission of as much evidence as possible, Rule 403 of the West Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403 provides that although relevant, evidence may nevertheless be excluded when the danger of unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.

¶16“The balancing necessary under Rule 403 must affirmatively appear on the record.” McGinnis, 193 W.Va. at 156, 455 S.E.2d at 525. Here, the trial court failed to perform the Rule 403 balancing test. In addition, the trial court failed to give a limiting instruction either when the testimony was given or in the general jury instructions. Interestingly, in the pre-trial hearing when the testimony at issue, as well as other challenged evidence, was discussed, the court warned the appel-lees’ counsel concerning the admission of the challenged evidence, “if that evidence is not admissible, I think it’s so prejudicial that I can’t cure it with a curity (sic) instruction.” The trial court was exactly right on that point. This was highly prejudicial evidence that nevertheless was admitted against Dr. Sopher.

¶17Also, after finding that Dr. Sopher “intentionally removed the heart of Elmer Coleman and should have known that the intentional removal of Elmer Coleman’s heart would cause the plaintiffs emotional distress,” the jury awarded Mary Coleman $75,000 in compensatory damage, and the two children, Wesley and Michelle Coleman, $30,000 each in compensatory damages. These amounts were reduced by the court to $50,000 for Mary Coleman and $10,000 each to the two children. The jury awarded punitive damages against Dr. Sopher in the amount of $50,000. This Court upheld the punitive damages award.

¶18In Syllabus Point 8 of Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994) this Court stated:

In permitting recovery for emotional distress without proof of physical trauma when the distress arises out of the extreme and outrageous conduct " intentionally caused by the defendant^ damages awarded for the tort of outrageous conduct are essentially punitive damages. Therefore, in many cases emotional distress damages serve the policy of deterrence that also underlies punitive damages.

¶19Even though Dzinglskiwas decided after the trial in this case, the Court noted in Dzingl-ski that

In Mace v. Charleston Area Medical Center Foundation, Inc., 188 W.Va. 57, 422 S.E.2d 624, 633 (1992), we expressed our concern that in cases where damages for emotional distress are sought, “a claim for emotional distress without any physical trauma may permit a jury to have a rather open-hand in the assessment of damages.” In Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), we recognized that in *611permitting recovery for emotional distress without proof of physical trauma where the distress arises out of the extreme 'and outrageous conduct intentionally caused by the defendant, damages awarded for the tort of outrageous conduct are essentially punitive damages.

¶20Therefore, in this case, I believe the plaintiffs were allowed a double recovery by allowing the jury “to stack punitive damages upon punitive damages, thereby effectively imposing two punitive damage verdicts against [Dr. Sopher] for the same acts.” Dzinglski, 191 W.Va. at 288, 445 S.E.2d at 229.

¶21The plain fact is the majority dropped the ball on this one, particularly on the Rule 404(b) issue. It declines to address the merits of the issue by holding Dr. Sopher to a ridiculously high standard for preservation of his objection for assignment of error to this Court. By doing so, it upholds the admission of evidence against Dr. Sopher that was clearly prejudicial. Also, this Court manages to be inconsistent. Eleven months ago a verdict was reversed in this Court where prior act evidence was wrongly admitted. Stafford, supra.In the case at bar, this Court has upheld a verdict where prejudicial prior act evidence was admitted. With its refusal to properly address the Rule 404(b) issue, the majority is splitting legal hairs, a practice at which lawyers are experts. Here, however, such behavior results in inconsistent principles, inconsistent results, and the affirming of a verdict based, in part, on improper evidence. Therefore, I dissent.

¶23Concurring:

¶24(Filed Dec. 18, 1997)

¶25It is unfortunate that the dissenting opinion distorts the majority’s holding and legal analysis. I fully support the legal analysis and conclusion of the majority opinion in this case. I write this concurring opinion to emphasize the necessity for properly preserving evidentiary objections for appeal.

¶26In this appeal counsel for Dr. Sopher has asked this Court to modify the requirements for preserving evidentiary objections. Dr. Sopher proposes, by his arguments, that the standard be relaxed as it relates to one particular issue: admission of testimony that Dr. Sopher previously donated brain tissue from deceased individuals without notifying the relatives of the decedents. Counsel for Dr. Sopher did not comply with the traditional standards to which all trial attorneys must adhere in order to preserve a Rule 404(b) objection for appellate review. The majority opinion correctly refused to deviate from the standards which are necessary to preserve an evidentiary assignment of error. See State v. Boyd, 166 W.Va. 690, 698, 276 S.E.2d 829, 834 (1981) (“It is clear under our law, that as to evidentiary errors, an attorney must preserve them on the record or be foreclosed from raising them on appeal”.). (Citations omitted).

¶27In this appeal, Dr. Sopher contends that the trial court should have excluded testimony relating to his removal of brain tissue from other deceased individuals. Dr. Sopher argued that such evidence was inadmissible under Rule 404(b). In his brief, Dr. Sopher argued that he made a motion in limine asking the trial court to exclude testimony of his prior conduct under Rule 404(b), and that the motion was denied. Dr. Sopher also argues that during the trial he again raised the Rule 404(b) argument and the trial court overruled his objection. The motion in li-mine and the trial objection should be separately addressed.

¶28The Motion In Limine

¶29To support his contention that he made a motion in limine raising the Rule 404(b) issue, Dr. Sopher’s brief references pages 4r-l2 of a pretrial hearing. The record discloses no written motion. Moreover, a careful reading of the referenced pages fails to disclose any mention of Dr. Sopher’s counsel requesting the trial court exclude the evidence under Rule 404(b). See Syl. Pt. 1, Estep v. Brewer, 192 W.Va. 511, 453 S.E.2d 345 (1994). (“Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal”.). However, in piecing together particular words scattered throughout the above-referenced pages, one *612can discern that an objection was made to the brain tissue testimony. The meaningful legal language which was articulated on the record were the words “routine” and “habit”. Those words define an objection pursuant to Rule 406, not Rule 404(b).

¶30It may very well be that Dr. Sopher’s counsel in fact discussed Rule 404(b) with the trial court as was argued in his brief. Assuming this occurred, the critical mistake made by Dr. Sopher’s counsel was having the Rule 404(b) discussion and argument off the record. The pages to which Dr. Sopher referenced reveal that the parties went off the record when making such argument, if it was made.1

¶31Dr. Sopher’s Argument: Off the Record

¶32Dr. Sopher could have properly presented the unrecorded alleged Rule 404(b) argument before this Court if such an argument was made and the argument was omitted from the transcript. Pursuant to Rule 9(f) of this Court’s Rules of Appellate Procedure, “[a]ny omission, misstatement, or error, either clerical or otherwise, in the record may be corrected at any time by stipulation filed with the Supreme Court”. Under this provision of our appellate rules, Dr. Sopher was required to obtain and file with this Court a stipulation, agreed to by the opposing party (and trial judge had he not passed away), which outlined the substance of any omitted Rule 404(b) discussion. See Dupre v. Fru-Con Engineering Inc., 112 F.3d 329 (8th Cir.1997) (noting that under federal appellate rules counsel is required to file a motion to modify content of record to disclose what counsel alleged actually transpired off the record in district court). See also Federal Rules of Appellate Procedure, Rule 10(e).

¶33The stipulation requirement of Rule 9(f) establishes a standard that is applicable to all attorneys who seek to have this Court consider an objection not appearing on the record. Counsel for Dr. Sopher, in the final analysis, would have this Court deviate from its long established standard and permit the averments in his brief to be accepted as accurately depicting what occurred. “Lacking this documentation, counsel’s [allegations] amounted to nothing more than an attorney’s argument lacking evidentiary support”. Powderidge Unit Oumers Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 707, 474 S.E.2d 872, 887 (1996). “[S]elf-serving assertions without factual support in the record will not [suffice]”. Williams v. Precision Coil, Inc., 194 W.Va. 52, 61 n. 14, 459 S.E.2d 329, 338 n. 14 (1995). The majority has correctly held counsel for Dr. Sopher to the well-reasoned standard of Rule 9(f) with which all attorneys must comply.

¶34Motion in Limine: No Definitive Ruling During the Pretrial Hearing

¶35The next issue concerns the ruling by the trial court on Dr. Sopher’s motion in limine. The record of the pretrial proceeding clearly reveals that the trial court did not make a definitive ruling on the motion during the pretrial hearing. The transcript clearly illustrates that once trial counsel and the court were again on the record, the trial judge indicated he was prepared to rule against Dr. Sopher’s motion. Dr. Sopher’s counsel specifically asked the court to defer a definitive ruling until he was allowed to submit case law that would support his motion. The trial court agreed to defer a definitive ruling on the motion until the morning of the trial, which was the next day.2 A careful review of *613the next morning’s transcript discloses no discussion or renewal of the in limine motion. See Waldron v. Waldron, 73 W.Va. 311, 317, 80 S.E. 811, 814 (1913) (“If a party who has made an objection permits it to be forgotten, a waiver should be chargeable to the party”.); Syl. Pt. 1, Maples v. West Virginia Dept. of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996) (“A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal”.); In Interest of S.C., 168 W.Va. 366, 374, 284 S.E.2d 867, 880 (1981). Ultimately, then, the trial court never entered a definitive ruling on the motion in limine. See Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 114, 459 S.E.2d 374, 391 (1995) (“It is not the role of the trial judge to present evidence. ... [T]he party complaining on appeal of the admission of evidence bears sole responsibility for adequately preserving the record on meaningful appellate review”.); Voelker v. Frederick Business Properties Co., 195 W.Va. 246, 256, 465 S.E.2d 246, 256 (1995) (“[Sjimply raising the issue before the trial judge is insufficient. Attorneys have an obligation to protect the record in relation to rulings by trial judges on specific issues”.).

¶36This Court held in syllabus point 1 of Wimer v. Hinkle, 180 W.Va. 660, 379 S.E.2d 383 (1989) that:

An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence.

¶37Accord, Syl. Pt. 6, Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989). Wimerholds that as a general matter, an attorney does not have to raise at trial an objection that was properly preserved through a motion in limine. However, the Wimerrule is inapplicable when the motion in limine ruling was not properly preserved. See State v. Parsons, 181 W.Va. 56, 63, 380 S.E.2d 223, 230 (1989) (where trial court has not ruled on motion in limine, party must object to introduction of evidence at trial in order to preserve right to appeal admission of evidence); Pandit v. American Honda Motor Co., Inc., 82 F.3d 376 (10th Cir.1996) (utilizing a three-part test to determine whether party must renew motion in limine at trial .to preserve issue for appeal; reviewing court must be satisfied that matter was adequately presented to district court, that issue was of type that can be finally decided prior to trial, and that court’s ruling was definitive).

¶38The legal consequence of failing to address the issue the next morning meant that the trial court’s prior tentative motion in limine ruling was insufficient, standing alone, to preserve the matter for appeal. Dr. Sopher had to renew his alleged Rule 404(b) motion at trial in order to have the issue preserved for appeal. The Wimerrule does not apply. See Green Const. Co. v. Kansas Power & Light Co., 1 F.3d 1005 (10th Cir.1993) (party waived objection to denial of motion in limine to exclude evidence where party failed to renew objection during trial, after district court had indicated that ruling would be subject to reconsideration at trial); Dow v. United Broth, of Carpenters and Joiners of America, 1 F.3d 56 (1st Cir.1993) (holding that when court defers ruling on request and proponent thereafter fails to resurrect issue in timely fashion, proponent is deemed to have abandoned point and cannot later complain on appeal); Gill v. Thomas, 83 F.3d 537 (1st Cir.1996) (when in limine motion to exclude evidence is denied counsel must renew objection at trial to preserve right to appeal admission of the contested evidence); Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263 (8th Cir.1993) (alleged error was not preserved for appellate review where plaintiffs failed to renew objections made in connection with their motion in limine); McEwen v. City of Norman, 926 F.2d 1539 (10th Cir.1991) (objection raised at hearing on motion to ex-*614elude testimony was insufficient to preserve issue absent contemporaneous objection at trial); Petty v. Ideco, 761 F.2d 1146 (5th Cir.1985) (party whose motion in limine is overruled must renew objection at trial); State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997) (when court overrules motion in limine, movant must object when particular evidence, previously sought to be excluded by motion, is offered).

¶39Dr. Sopher failed to make a Rule 404(b) objection at trial. Therefore, even if the majority opinion had modified the standard for preserving a motion in limine objection, by a determination that Dr. Sopher had in fact raised a Rule 404(b) argument at the pretrial hearing, the issue was not preserved for appeal purposes absent a renewal of the objection at trial. See Clausen v. Sea-3, Inc., 21 F.3d 1181 (1st Cir.1994) (denial of motion in limine did not preserve issue for review absent timely objection at trial to admission of such evidence).

¶40The Trial Objection: No Reasonable Specificity

¶41Dr. Sopher contends in his brief that he sought to exclude evidence of his prior conduct pursuant to Rule 404(b). The brief of Dr. Sopher referred this Court to the point of trial when the alleged Rule 404(b) objection was raised. In reviewing the trial transcript pages referred to in the brief, I find that counsel for Dr. Sopher initially objected by simply stating the matter was irrelevant. Two other objections were made. Both objections related to the form of the questions and not the substance of the question.

¶42Dr. Sopher asks this Court to allow an objection of relevancy to be considered as a Rule 404(b) objection. The majority opinion refused to adopt such a rule. See United States v. Wilson, 31 F.3d 510 (7th Cir.1994) (in absence of Rule 404(b) objection defendant waived objection to the drug dealer’s testimony that he had seen defendant in possession of cocaine on at least ten occasions); Hollenback v. United States, 987 F.2d 1272 (7th Cir.1993) (by failing to raise Rule 404(b) as possible bar to drug use testimony, defendant waived objection); United States v. Dunn, 758 F.2d 30 (1st Cir.1985) (failure to object to certain extensive testimony under Rule 404(b) constituted a waiver of objection); State v. Burton, 326 S.C. 605, 486 S.E.2d 762 (App.1997) (failure to raise proper objection when evidence is offered constitutes waiver of right to object); Asberry v. State, 813 S.W.2d 526 (Tex.App. — Dallas 1991) (in absence of appropriate Rule 404(b) objection in trial court nothing is preserved for appellate review). An objection as to relevance cannot automatically trigger a 404(b) objection. No court in the country has such a relaxed standard. To comply with the traditional standard, trial counsel must make the objection with reasonable specificity. This Court addressed that precise issue in In re Tiffany Marie S., 196 W.Va. 223, 234, 470 S.E.2d 177, 188 (1996):

The West Virginia Rules of Evidence declare that parties must object to the wrongful offer of evidence at a particular time and with reasonable specificity. The failure to object at the time and in the manner designated by Rule 103(a) of the West Virginia Rules of Evidence is treated as a procedural default, with the result that the evidence, even if erroneous, becomes the facts of the case.

¶43In re Tiffany Marie S. articulated a standard of “reasonable specificity” for making an objection. Common sense dictates that the mere objection of “irrelevant” is not reasonably specific to alert a trial court or this Court that a Rule 404(b) objection is being made.

¶44Essentially, the dissenting opinion seeks a “Sopher exception” simply because the writer does not like the result in this case. A more solid legal argument would have resulted in a more solid dissent.