CHARLESTON – David Nelson, branded as a brute with his brothers and others in the murder of a mother, has won a second chance to prove his innocence.

The West Virginia Supreme Court of Appeals on Oct. 30 granted Nelson a new trial on charges that he joined in kidnapping, raping and killing Wanda Lesher in 2002.

Four of five Justices agreed that Mingo County Circuit Judge Michael Thornsbury denied Nelson a fair trial by allowing unverified and inflammatory evidence.

At trial, Nelson asserted an alibi defense.

His wife testified that she went to work at Logan General Hospital and left him at home with their daughters, ages 14 and five.

The older child testified that her father stayed home.

Nelson testified that he was a family man who would not commit such crimes.

On cross examination, prosecutors presented a sexual abuse complaint that a sister filed against Nelson and one of his brothers in 1987.

Nelson denied abusing his sister. His attorney moved for mistrial. Thornsbury denied it.

Thornsbury ruled that because Nelson introduced his character as evidence, prosecutors could properly rebut character evidence.

In closing arguments the prosecutor said Nelson's sister accused him of "doing horrible things – the same things, at least partly, to Wanda Lesher."

Jurors found Nelson guilty and declined to recommend mercy.

Thornsbury sentenced him to two penitentiary terms of life without mercy.

Attorney Mark Hobbs of Chapmanville petitioned to appeal. Last year the Justices granted the petition.

Hobbs argued Nelson's case before the Justices on Sept. 11. Assistant attorney general Christopher Smith represented the state.

In an unsigned opinion, the Justices held that allegations substantially beyond the reach of character evidence were brought before the jury.

"The cross examination was not limited to whether the appellant sexually abused or sexually assaulted his sister, Shelia Nelson, one time when she was 13 years old," they wrote, adding that the prosecutor suggested the abuse continued since she was 13. "No evidence was submitted indicating that any court proceedings took place with regard to the above allegations of sexual misconduct.

"Shelia Nelson, 34 years old in 2005 and a resident of Breeden, Mingo County, was not called to testify…"

They wrote that the report was not admitted into evidence.

"This Court finds it difficult to sustain the proposition that the cross examination elicited nothing more than rebuttal character evidence," they wrote.

They wrote that Thornsbury "never engaged in a factual determination concerning whether there was sufficient evidence to show that the past acts occurred."

Wanda Lesher drank at a bar on the last night of her life. When she left in her car, she took David Nelson's brother Aaron and Alfred Dingess Jr. with her.

Her passengers told her to drive up a mountain road to Canterbury cemetery. She did.

David and Aaron Nelson's brother Clinty appeared, along with Zandell Bryant.

Whether David Nelson appeared, a new jury must decide.

Lesher pleaded to go home to her children. The men raped her. They smashed her skull with a board from a picnic table. They dumped her in a pond.

They could see her, so they dragged her out. She hadn't died, so they tied her hands behind her and choked her with a shoe string.

They dug a shallow grave, dropped her in and covered her with sticks and branches.

When they left she still breathed, but by dawn she had given up.

Aaron Nelson, Clinty Nelson and Alfred Dingess Jr. serve life sentences. Bryant might qualify for parole in 30 years.

Chief Justice Robin Davis and Justices Joseph Albright, Brent Benjamin and Larry Starcher favored a new trial, while Justice Spike Maynard, of Mingo County, dissented.

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