## Facts

- Dewey Daniel Winebarger shot and killed his son-in-law, Kenny Price, during an argument at Winebarger’s home after a dispute involving vehicles Winebarger had loaned to his daughter and Price.
- Winebarger claimed Price was intoxicated, became aggressive, and that Winebarger attempted to fire a warning shot; the bullet instead struck Price in the neck and killed him.
- Winebarger was indicted for first-degree murder, tried by jury, convicted of voluntary manslaughter, and sentenced to ten years’ imprisonment.
- The State offered evidence of three prior incidents in which Winebarger allegedly displayed a handgun during disputes; none involved a shooting, and one incident occurred about fifteen years earlier.
- After an in camera hearing, the trial court admitted the prior incidents under West Virginia Rule of Evidence 404(b) for the limited purpose of determining whether the charged shooting was intentional or a mistake/accident, and gave a limiting instruction.
- A witness (the decedent’s aunt) also testified about conversations involving alleged prior threats by Winebarger toward Price; the defense sought a mistrial, which the trial court denied while giving curative instructions.

## Issues

1. Whether the trial court abused its discretion by admitting three prior gun-display incidents (five to fifteen years old) under Rule 404(b) to show intent and absence of mistake or accident.
2. Whether the trial court erred by denying a mistrial after testimony referencing alleged prior threats, where the defense argued the testimony was improper and prejudicial.

## Decision

- The Supreme Court of Appeals of West Virginia affirmed the conviction and sentence.
- The court held the trial court did not abuse its discretion in admitting the prior gun-related incidents under Rule 404(b) for the limited purpose of intent and absence of mistake/accident, despite remoteness in time.
- The court held the trial court did not err in denying a mistrial; any prejudice from the challenged testimony was adequately addressed by curative instructions and did not create the level of prejudice required for mistrial.

## Legal Principles

- Rule 404(b) permits prior-acts evidence for non-character purposes, including proving intent and absence of mistake or accident, when those matters are material to the case.
- Before admitting Rule 404(b) evidence, the trial court must ensure a proper non-propensity purpose, require proof of the prior acts by a preponderance of the evidence, assess relevance to a material issue, and conduct Rule 403 balancing; an appropriate limiting instruction should be given.
- Temporal remoteness does not create an automatic bar to Rule 404(b) admission; remoteness generally affects weight, not admissibility, particularly where the prior acts are similar and probative of the disputed issue.
- A mistrial is an extraordinary remedy; absent exceptional, incurable prejudice, curative instructions and trial-court discretion typically suffice to address improper testimony.

## Conclusion

The court affirmed Winebarger’s voluntary manslaughter conviction, ruling that prior gun-brandishing incidents were properly admitted under Rule 404(b) to rebut the claim of accidental shooting and that curative instructions adequately addressed challenged threat-related testimony, making a mistrial unnecessary.


State v. Winebarger, 217 W. Va. 117, 617 S.E.2d 467 (W. Va. 2005)