State of West Virginia v. William B. Shingleton , 237 W. Va. 669 ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term FILED
March 24, 2016
released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
No. 12-1446
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
v.
WILLIAM B. SHINGLETON,
Defendant Below, Petitioner.
Appeal from the Circuit Court of Putnam County
Honorable Phillip M. Stowers, Judge
Criminal Action No. 12-F-42
AFFIRMED
Submitted: February 23, 2016
Filed: March 24, 2016
Duane C. Rosenblieb, Jr., Esq. Patrick Morrisey, Esq.
Charleston, West Virginia Attorney General
Counsel for the Petitioner David A. Stackpole, Esq.
Assistant Attorney General
Benjamin F. Yancey, III, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court
SYLLABUS BY THE COURT
1. “To preserve an issue for appellate review, a party must articulate it with
such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.”
Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).
2. “To trigger application of the ‘plain error’ doctrine, there must be (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995).
3. “The application of the plain error rule in a criminal prosecution is not
dependent upon a defendant asking the Court to invoke the rule. We may, sua sponte, in the
interest of justice, notice plain error.” Syl. Pt. 1, State v. Myers, 204 W.Va. 449, 513 S.E.2d
676 (1998).
4. “A criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the evidence,
whether direct or circumstantial, in the light most favorable to the prosecution and must
credit all inferences and credibility assessments that the jury might have drawn in favor of
the prosecution. The evidence need not be inconsistent with every conclusion save that of
guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when
i
the record contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt.” Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657,
461 S.E.2d 163 (1995).
5. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 (2004), the
Confrontation Clause contained within the Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia Constitution bars the
admission of a testimonial statement by a witness who does not appear at trial, unless the
witness is unavailable to testify and the accused had a prior opportunity to cross-examine the
witness.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).
6. “[A] testimonial statement is, generally, a statement that is made under
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Syl. Pt. 8, in part, State v. Mechling, 219 W.Va.
366, 633 S.E.2d 311 (2006).
7. “In order to qualify as an excited utterance under W.Va.R.Evid. 803(2): (1)
the declarant must have experienced a startling event or condition; (2) the declarant must
have reacted while under the stress or excitement of that event and not from reflection and
fabrication; and (3) the statement must relate to the startling event or condition.” Syl. Pt. 7,
State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995).
ii
8. “A claim that double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as
to punishment.” Syl. Pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).
9. “The analysis of whether a criminal defendant may be separately convicted
and punished for multiple violations of a single statutory provision turns upon the
legislatively-intended unit of prosecution.” Syl. Pt. 4, State v Goins, 231 W.Va. 617, 748
S.E.2d 813 (2013).
10. “The defendant has a right under Article III, Section 14 of the West
Virginia Constitution to be present at all critical stages in the criminal proceeding; and when
he is not, the State is required to prove beyond a reasonable doubt that what transpired in his
absence was harmless.” Syl. Pt. 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).
11. “This Court will not reverse the denial of a request for a de novo
resentencing hearing on a trial court’s correction of a sentence under Rule 35(a) absent a
showing of an abuse of discretion.” Syl. Pt. 2, in part, State v. Tex B.S., 236 W.Va. 261, 778
S.E.2d 710 (2015).
12. “When a criminal defendant is convicted of a crime and the penal statute
defining the elements of the crime and prescribing the punishment therefor is repealed or
amended after his/her conviction of the crime but before he/she has been sentenced therefor,
iii
the sentencing court shall apply the penalties imposed by the statute in effect at the time of
the offense, except where the amended penal statute provides for lesser penalties. If the
amended penal statute provides lesser penalties for the same conduct proscribed by the
statute in effect at the time of the offense, the defendant shall have an opportunity to elect
under which statute he/she wishes to be sentenced, consistent with the statutory mandate
contained in W. Va. Code § 2-2-8 (1923) (Repl. Vol. 1994) and our prior directive set forth
in Syllabus point 2 of State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820 (1979).”
Syl. Pt. 6, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998).
13. The statutory penalty in effect at the time of a defendant’s criminal conduct
shall be applied to the defendant’s conviction(s). Where a statutory amendment mitigating
punishment becomes effective prior to sentencing, West Virginia Code § 2-2-8 (2013) allows
a defendant to seek application of the mitigated punishment before the trial court. Any
correction of sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal
Procedure shall be in accordance with the statutory penalty in effect at the time of the original
sentencing. Insofar as the decision in State v. Cline, 206 W.Va. 445, 525 S.E.2d 326 (1999),
is inconsistent with this holding, it is expressly overruled.
iv
LOUGHRY, Justice:
The petitioner, William B. Shingleton, appeals the January 21, 2014, second
amended sentencing order of the Circuit Court of Putnam County through which he was
sentenced to a total period of incarceration of seventeen years for his convictions on twenty
counts of Possession of Material Visually Portraying a Minor Engaged in Sexually Explicit
Conduct in violation of West Virginia Code § 62-8C-3 (1988) and his related recidivist
conviction under West Virginia Code §§ 61-11-18 and -19 (2014). Seeking to set aside his
convictions and sentences, the petitioner challenges the admission of the State’s medical
expert’s opinion testimony; the sufficiency of the State’s evidence to convict him; the
admission of testimony regarding a flash drive; and the entry of the jointly proposed second
amended sentencing order outside his presence. He also argues that the second amended
sentencing order increased his sentence in violation of his constitutional rights.1 Following
a careful review of the briefs, the arguments of counsel, the record submitted, and the
applicable law, this Court finds no reversible error and affirms the petitioner’s convictions
and sentencing.
1
Through this Court’s administrative order entered on February 4, 2015, the parties
were directed to address whether the petitioner “may elect to be sentenced under the revised
version of W.Va. Code § 61-8C-3 that [effective June 6, 2014] mitigated the punishment for
possessing multiple images of materials depicting minors engaged in sexually explicit
conduct.” Although the petitioner assigned this issue as error in his notice of appeal filed on
June 5, 2015, he did not discuss it in his appellate brief. The State did address the issue in
its appellate brief. We recognize a need to clarify our law regarding sentencing when a
statutory penalty is mitigated and will do so in section F., infra.
1
I. Facts and Procedural Background
In April of 2010, the petitioner’s then ten-year-old son, J.S.,2 went to the home
shared by his uncle, Larry “Wayne” Henson, and his uncle’s girlfriend, Lori Gil. While
there, J.S. gave a flash drive3 to Ms. Gil’s daughter, L.C.,4 asking her to load music onto it.
When L.C. inserted the flash drive into her computer, files “popped up” with pictures that
she did not think they were meant to see. L.C. stated that J.S. “looked kind of scared,” telling
her that the flash drive “wasn’t his” and that he had “accidentally grabbed his dad’s” flash
drive.5
L.C. called for her mother who, upon viewing the computer screen, sent J.S.
home and asked Mr. Henson to come inside.6 After viewing a picture of a topless girl on the
laptop, Mr. Henson took the flash drive and left the house to “find a cop” because “the young
girl” appeared to be “a little kid[.]” Mr. Henson found Putnam County Deputy Sheriff Chad
Weaver in his cruiser at a nearby Go-Mart convenience store and gave the flash drive to him.
2
Pursuant to Rule 40(e)(1) of the West Virginia Rules of Appellate Procedure, we will
refer to the juvenile witnesses in this matter by their initials.
3
In the parties’ briefs and throughout the appendix record, the terms “flash” drive and
“thumb” drive are used interchangeably. For purposes of this opinion, we will use the term
“flash” drive.
4
It appears that L.C. was approximately fourteen years old in April of 2010, as she was
sixteen years old at the time of her testimony during the petitioner’s trial in June 2012.
5
Testimonial quotations have been taken from the transcript of the petitioner’s trial,
as contained in the appendix record, unless otherwise indicated.
6
Mr. Henson had been mowing the yard.
2
Deputy Weaver viewed the files on the flash drive, which he described as
“several pornographic images of females . . . [he] believe[d] to be under the age of 18.” The
deputy took statements from Mr. Henson and Ms. Gil and made a report. Deputy Weaver
turned the investigation over to Sergeant Ryan Lockhart, a detective in the Crime Unit of the
Putnam County Sheriff’s Department.
Detective Lockhart obtained two search warrants: one to access the flash drive
that Mr. Henson had given to Deputy Weaver and one for the petitioner’s home. In executing
the warrants, multiple computers and “removable media” were seized. These items were
ultimately forwarded to the Federal Bureau of Investigation (“FBI”) for analysis. The FBI
identified child pornography on both the subject flash drive and a desktop computer with the
username “Bill.”7
On April 21, 2010, Detective Lockhart took a statement from the petitioner
which was recorded.8 In his statement, the petitioner described his regular use of a program,
“Forte Agent,” to download batches of file attachments to his computer. He explained that
7
In his statement given to Detective Lockhart, which is discussed infra, the petitioner
advised that he goes by the name “Bill.”
8
Although the appendix record filed by the petitioner did not contain a copy of this
audio recording, the Court requested and obtained a copy of the recording from the
petitioner’s counsel. See R.A.P. 6(b) (“The Court, upon its own motion, may consider
portions of the record other than those provide by the parties.”). A transcript of the audio
recording, while not admitted into evidence, was provided to the jury under a cautionary
instruction to aid it in understanding what was being said in the audio recording. The
appendix record contains a copy of this transcript, which the Court has relied upon for the
same purpose.
3
through this program, sometimes as many as 10,000 pornographic files were downloaded to
his computer overnight while he sleeps;9 that he would open and sort through the file
attachments about once a week; and that he would delete any images that appeared to depict
underage individuals. The petitioner admitted that although he might see “6 pictures that you
know you shouldn’t have” each week, he continued to use this program to access
pornography. The petitioner further stated that he does “tend towards, sometimes, the
younger stuff,” but that he does not “search for underage girls . . . just young looking girls[.]”
He explained that while he does not look for “pictures of little girls,” he does “get ‘em,” and
that he “like[d] young looking girls” because women his age10 “look like they’re 60.” When
Detective Lockhart asked the petitioner what he meant by “little girls,” the following
exchange took place:
Detective: Okay well, define little girl for me.
Petitioner: Well, undeveloped you know.
Detective: Okay like what age?
Petitioner: Like, under 13, you know.
Detective: Okay so, if, if you saw a picture of a 14 year old
girl, would you keep it?
Petitioner: I don’t . . .
Detective: Or a 16 year old girl?
Petitioner: If I see large breasts and you know one with large
breasts and like pubic hair and stuff, you know.
Detective: Uh . . . huh.
Petitioner: If the girl’s attractive, I might keep the picture.
When questioned concerning his knowledge that he possessed child pornography, the
following exchange took place:
9
The petitioner described this as messages with files attached.
10
The petitioner was forty-two years old at the time he gave this statement.
4
Detective: When you came to my office today?11
Petitioner: Uh . . . huh.
Detective: You knew that you had been looking at stuff you shouldn’t have
been looking at and that’s why you’re as nervous as you are.
Petitioner: I knew that I had seen stuff that I was not supposed to be
looking at . . . I have seen stuff.
••••
Detective: You know that there’s stuff on your computers that you
shouldn’t have.
Petitioner: And I told you that.
The petitioner also stated that any child pornography found on the computers seized from his
home pursuant to the search warrant was downloaded by accident.
On March 6, 2012, the petitioner was indicted on twenty counts of Possession
of Material Visually Portraying a Minor Engaged in Sexually Explicit Conduct in violation
of West Virginia Code § 61-8C-3 (2010).12 All twenty counts were identical, with the
exception of the number of each count. Each count read as follows:
Count No. One (1): that WILLIAM B. SHINGLETON,
on the __ day of March 2010, in the said County of Putnam,
committed the felony offense of “POSSESSION OF
MATERIAL VISUALLY PORTRAYING A MINOR
ENGAGED IN SEXUALLY EXPLICIT CONDUCT” in that
he, the said William B. Shingleton, on the __ day of March,
2010, in said Putnam County, West Virginia, did unlawfully,
feloniously and knowingly possess material visually portraying
a minor engaging in sexually explicit conduct, against the peace
11
The ensuing statements can be heard in the audio recording of the petitioner’s
statement that was admitted into evidence at trial, although they are not set forth in the
transcript of the petitioner’s statement that is a part of the appendix record.
12
For purposes of this opinion, the year 2010 refers to the date of the bound volume
of the West Virginia Code at the time of the petitioner’s criminal conduct, convictions, and
sentencing, which included all statutory amendments through 1988—the year the statute was
last amended prior to its most recent amendment in 2014.
5
and dignity of the State, West Virginia Code, Chapter 61,
Article 8C, Section 3[.]13
The petitioner’s jury trial was held in June 2012. Deputy Weaver testified
regarding how he came to be in possession of the flash drive, and Detective Lockhart
testified regarding his investigation in this matter. Through Detective Lockhart, the audio
recording of the statement he took from the petitioner was admitted into evidence at trial.14
Mr. Henson and Ms. Gil testified regarding their actions once the flash drive’s contents were
revealed to them, as described above.
L.C. testified at trial regarding the flash drive that was handed to her by the
petitioner’s son, J.S.; the images that appeared when she opened the flash drive on her
computer; and the statements immediately made by J.S. that the flash drive “wasn’t his” and
that he had “accidentally grabbed his dad’s” flash drive. A few questions and answers later,
the petitioner objected to this earlier testimony on the basis of hearsay. The State responded
13
The version of West Virginia Code § 61-8C-3 in effect at the time of the petitioner’s
prosecution and sentencing provided, as follows:
Any person who, with knowledge, sends or causes to be
sent, or distributes, exhibits, possesses or displays or transports
any material visually portraying a minor engaged in any sexually
explicit conduct is guilty of a felony, and, upon conviction
thereof, shall be imprisoned in the penitentiary not more than
two years, and fined not more than two thousand dollars.
14
See supra note 8.
6
that L.C.’s testimony fell within the present sense impression exception to the hearsay rule,15
and the objection was overruled.16 Although J.S. was subpoenaed and available to testify,
neither the State nor the defense called him as a witness at trial.
Melinda Cash, an Information Technology Specialist Forensic Examiner with
the FBI, testified for the State. Ms. Cash indicated that seventy to eighty percent of her cases
involve child pornography. Regarding the instant matter, Ms. Cash testified that she
examined the petitioner’s computers and the subject flash drive that had been forwarded by
the Putnam County Sheriff’s Office. Explaining that every digital image of child
pornography can be identified by “hash value,”17 Ms. Cash stated that she found 127 images
that were “suspected child porn erotica” on the desktop computer with the user name “Bill.”18
She further testified that forty-three images, which were found on both the desktop computer
and the flash drive, were matched by their hash value with the hash values of known child
pornography contained in a database known as the “DHS-ICE, National Child Victim
15
See infra note 39. Although the West Virginia Rules of Evidence were substantially
revised in 2014, we will apply the evidentiary rules in effect at the time of the petitioner’s
trial in 2012.
16
During arguments on the petitioner’s motion for judgment of acquittal following the
close of evidence, the State also referred to J.S.’s statements to L.C. as excited utterances,
another exception to the rule against hearsay. See W.V.R.E. 803(2) (2012), infra.
17
Ms. Cash explained that “every digital media” will have a unique “hash,” which she
described as a “digital fingerprint.” See, e.g., United States v. Brown, 701 F.3d 120, 128 n.
2 (4th Cir. 2012) (“A ‘hash value’ is a code that identifies an individual digital file as a kind
of ‘digital fingerprint.’”).
18
The petitioner told Detective Lockhart that he was the only person in his household
who used his desktop computer and that it was password protected.
7
Identification Program” (“NCVIP”),19 and nineteen of those images were matched with the
FBI’s NCVIP database.20 Ms. Cash verified that the images were of actual children who had
been reported to the NCVIP. Through Ms. Cash, twenty images depicting child
pornography21 were admitted into evidence as having been found on either the desktop
computer with the username “Bill,” the flash drive, or both.22 Ms. Cash’s examination of the
desktop computer and flash drive revealed that the child pornography had been downloaded
over a period of years.
Joan Phillips, M.D., testified for the State. Dr. Phillips, a board certified
pediatrician, is the co-director of the Child Advocacy Center at the Charleston Area Medical
Center in Charleston, West Virginia, as well as the clinical director of the hospital’s
Children’s Services. Dr. Phillips was qualified as an expert in the field of pediatrics and
child abuse and neglect. Having been previously disclosed in discovery as the State’s expert
19
See https://www.ice.gov/factsheets/predator (explaining that NCVIP was created by
U.S. Immigration and Customs Enforcement “in partnership with the National Center for
Missing & Exploited Children, the FBI, the U.S. Postal Inspection Service, the U.S. Secret
Service, the Department of Justice, the Internet Crimes Against Children task forces and
other agencies” as part of effort to combat sexual exploitation of children).
20
See https://www.fbi.gov/foia/privacy-impact-assessments/cvip (stating that FBI’s
NCVIP database is designed to help identify child victims of sexual exploitation and
explaining that it “serves as a repository for images depicting identified child victims”).
21
Ms. Cash testified that she had attached to each image its particular properties which
showed the image’s “original path and the dates created, modified and access date, the size
of the files,” and the fact that these twenty images had not been deleted. She also explained
how to discern which images were on the hard drive of the desktop computer with the
username “Bill,”on the subject flash drive, or on both.
22
For purposes of establishing the chain of custody for the computers and flash drive,
three other employees of the FBI also testified at trial.
8
“regarding the relative ages of the alleged children in the photographic images based on their
developmental growth,” Dr. Phillips testified regarding “Tanner staging,” which she
described as a “universally accepted model . . . which describes sexual development of
children” using a scale of “I to V.” Through Dr. Phillips, a description of Tanner staging
published in “Harriet Lane,” which is “considered sort of a pediatric bible that’s published
by John[s] Hopkins Medical,” was admitted into evidence without objection. Utilizing the
illustration of Tanner staging in “Harriet Lane,” Dr. Phillips testified regarding the various
stages of physical development in girls. She explained that for children under the age of
fifteen, Tanner staging is “pretty determinative” of age. Having previously compared the
twenty images admitted into evidence at trial with Tanner staging, Dr. Phillips gave her
expert opinion that she had “[a]bsolutely . . . no hesitation in testifying that these children are
under the age of 18,” estimating all to be thirteen years of age or younger with some being
nine years of age or younger. The petitioner did not object to Dr. Phillips’ qualifications or
testimony, nor was she cross-examined.
Following the State’s case-in-chief, the petitioner’s trial counsel gave his
opening statement. Although counsel indicated that various witnesses would be called to
testify, the defense rested without calling any witnesses. Thereafter, the trial court denied
the petitioner’s motion for a judgment of acquittal based on an insufficiency of the evidence.
On June 26, 2012, the jury returned its verdict finding the petitioner guilty on
all twenty counts of the indictment. That same day, the State filed an information against the
9
petitioner alleging he was a recidivist and seeking a recidivist sentence under West Virginia
Code § 61-11-18. The petitioner did not contest the factual allegations in the information
regarding his twelve prior felony convictions of forgery in 1992, or his felony conviction of
fraudulent schemes in 2009.
Following a pre-sentence investigation and report, a sentencing hearing was
held on October 19, 2012, during which the petitioner and his counsel were afforded an
opportunity to speak and present evidence. On that same day, the circuit court entered its
order sentencing the petitioner to a total combined sentence of twenty years, as follows: a
statutory determinate term of two years incarceration for each of the twenty counts on which
he was convicted; the sentences for counts one through five to run consecutively to one
another; the sentences for counts six through twenty to run concurrently; and a “determinant
sentence of Ten (10) years for the charge of recidivist for all twenty counts herein for a
combined total of ten (10) years” to be served consecutively to the other sentences. The
circuit court also imposed a $40,000 fine ($2,000 for each of the twenty counts) and a
twenty-five year term of supervised release upon the petitioner’s release from incarceration.
On November 19, 2012, the petitioner, by counsel, filed a notice of appeal in
this Court indicating his intent to challenge the legality of the recidivist enhancement.
Thereafter, he filed a motion in the circuit court on December 12, 2012, seeking a “correction
of illegal sentence” pursuant to Rule 35(a) of the West Virginia Rules of Criminal
10
Procedure.23 In this motion, the petitioner argued that only a single count could be enhanced
under the recidivist statute, whereas the sentencing order imposed the recidivist sentencing
on all twenty counts, and that the single count could only be enhanced five years, rather than
the ten years imposed. He further asserted that it was unclear whether the sentences for
counts six through twenty were to be served concurrently to, or consecutively with, the
consecutive sentences for counts one through five. Lastly, the petitioner indicated that the
circuit court had expressed its intent to suspend all but $5,000 of the $40,000 fine, yet this
reduction did not appear in the sentencing order.
The petitioner’s motion prompted a second sentencing hearing, which was held
by the circuit court on March 22, 2013. Thereafter, the trial court entered an amended
sentencing order on May 3, 2013, through which it reduced its earlier ten-year recidivist
sentence by imposing a “determinant sentence of Seven (7) years for the charge of recidivist
for all twenty counts herein for a combined total of Seven (7) years.” This amended
sentencing order clarified that $35,000 of the $40,000 fine was suspended, but did not
address the petitioner’s question of whether the sentences imposed on counts six through
twenty were to be served consecutively to, or concurrently with, the sentences imposed on
counts one through five.
23
See W.Va. R. Crim. P. 35(a) (“The court may correct an illegal sentence at any time
and may correct a sentence imposed in an illegal manner within the time period provided
herein for the reduction of sentence.”).
11
On October 30, 2013, the petitioner filed an appellate brief in this Court,
arguing that the amended sentencing order was illegal because it imposed a seven-year
recidivist sentence “for all twenty counts,” which could be interpreted as imposing that
recidivist sentence on each of the petitioner’s twenty convictions, rather than just as to a
single count. Thereafter, the State filed a motion in this Court on January 6, 2014, seeking
to hold the appeal in abeyance pending resolution of the sentencing issue in the circuit court.
By order entered on January 27, 2014, this Court granted the State’s motion.
During this same time, the petitioner filed a pro se motion in the circuit court
pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure in which he
challenged, inter alia, his recidivist sentencing. Soon thereafter, the parties, by counsel,
jointly submitted a proposed second amended sentencing order to the circuit court seeking
its entry.
On January 21, 2014, the jointly proposed second amended sentencing order24
was adopted and entered by the circuit court without holding a hearing. In this order, the trial
court expressed its intent to impose an aggregate period of seventeen years incarceration, the
24
The trial court recounted in this order that the parties’ counsel had notified the court
that “certain aspects of [the May 3, 2013] order had caused confusion” and that “the parties
jointly submitted a proposed [second] amended sentencing order to the Court[,]” which the
court adopted.
12
same period it had imposed in its May 3, 2013, amended sentencing order. The court also
explained that it was clarifying and correcting the confusion voiced by the parties’ counsel
regarding the recidivist sentencing imposed in the first amended sentencing order.
Accordingly, the trial court imposed “a determinant sentence of Five (5) years for the charge
of recidivist for Count One[,]” which was in accordance with the recidivist statute. Because
this reduced the overall sentence by two years, the court ordered the sentences on counts one
through six, rather than counts one through five, to be served consecutively to each other, and
the sentences on counts seven through twenty, rather than six through twenty, be served
concurrently to one another and concurrently with25 the sentences for counts one through six,
all of which resulted in a combined total sentence of seventeen years, as the court intended.
On February 2, 2014, the petitioner filed a pro se notice of appeal in this Court
alleging eight additional assignments of error. Subsequently, the motion of the petitioner’s
counsel to withdraw was granted, and new appellate counsel was appointed. There has been
full briefing by the parties, and this matter is now ripe for decision.
II. Standard of Review
25
This provision also answered the petitioner’s question raised in his first Rule 35(a)
motion regarding the concurrent and consecutive sentencing, which had not been addressed
in the first amended sentencing order.
13
The petitioner has asserted several assignments of error. Generally, in
reviewing a circuit court’s decision, we apply a three-part standard of review:
“In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.” Syl. Pt. 2, Walker v. West Virginia Ethics Comm’n,
201 W.Va. 108, 492 S.E.2d 167 (1997).
Syl. Pt. 2, State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (2009). Further, “[t]he Court applies
a de novo standard of review to the denial of a motion for judgment of acquittal based upon
the sufficiency of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567
(2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). In
addition, “[w]here the issue on an appeal from the circuit court . . . involv[es] an
interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, in part,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Because the errors
assigned by the petitioner involve additional and varying standards of review, we will address
those specific standards below as we proceed to determine whether the petitioner is entitled
to relief from his convictions.
III. Discussion
14
The petitioner seeks to overturn his convictions on several grounds, including
evidentiary errors at trial, the sufficiency of the State’s evidence to convict, and errors related
to his sentencing. We will address each of these assignments of error in turn.
A. Expert Testimony
The petitioner asserts that the trial court failed in its “gatekeeper” role under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), when it allowed Dr.
Phillips to give her expert opinion concerning the ages of the children depicted in the twenty
images based on Tanner staging. Citing professional publications in his appellate brief, the
petitioner questions the validity of the Tanner scale to estimate the chronological age of
children. The State responds that not only did the petitioner fail to challenge Dr. Phillips’
qualifications or testimony below, the circuit court was not required to hold a Daubert
hearing or limit Dr. Phillips’ unchallenged opinion testimony sua sponte. The State further
argues that this alleged error is not saved by a “plain error” analysis given the absence of any
evidence in the record that would call into question the validity of Dr. Phillips’ expert
opinions.
The petitioner asks this Court to find error in the admission of expert testimony
to which he raised no objections and which was given by a witness he did not cross-examine.
As a general matter, these failures remove this issue from the Court’s consideration.
15
“‘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.’ Syllabus Point 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d
206 (1964).” Syl. Pt. 3, O’Neal v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420(1991). Indeed, “[t]o preserve an issue for appellate review, a party must articulate it with
such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.” Syl.
Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).
In the absence of any challenge to Dr. Phillips’ testimony during trial, under
Daubert or otherwise, the sole means to address this issue is through a “plain error” analysis.
“To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459
S.E.2d 114 (1995). Although the petitioner has not asked this Court to invoke a “plain error”
analysis, “[the] application of the plain error rule in a criminal prosecution is not dependent
upon a defendant asking the Court to invoke the rule. We may, sua sponte, in the interest of
justice, notice plain error.” Syl. Pt. 1, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).
The State asserts that there was no plain error in the admission of Dr. Phillips’ expert opinion
testimony. We agree.
16
The petitioner had ample opportunity to prepare for Dr. Phillips’ testimony as
she had been disclosed by the State as its expert concerning “the relative ages of the alleged
children in the photographic images based on their developmental growth.” In the stark
absence of any challenge to Dr. Phillips’ qualifications and opinion testimony at trial, the
petitioner argues, without any supporting legal authority, that the trial court should have held
a Daubert hearing sua sponte. Certainly, this Court has never imposed such a blanket
requirement on trial courts, and our research reveals that other courts have also declined to
impose such a duty.
For example, in Chapman v. State, 18 P.3d 1164 (Wyo. 2001), the defendant
argued that a trial court, “in its gatekeeping role, is required to make a determination of the
admissibility of expert testimony prior to its admission regardless of whether an objection
has been made—in effect, arguing that trial courts are always required to hold sua sponte
Daubert hearings whenever expert testimony is proposed.” Id. at 1174. The court, however,
declined to impose such a requirement, explaining, as follows:
First, even where a Daubert hearing has been properly
requested, trial courts exercise “discretionary authority . . . to
avoid unnecessary ‘reliability’ proceedings in ordinary cases
where the reliability of an expert’s methods is properly taken for
granted.” Seivewright v. State, 7 P.3d 24, 30 (Wyo. 2000)
(quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119
S.Ct. 1167 at 1176, 143 L.Ed.2d 238 (1999)). In addition,
although we agree that, as gatekeepers of expert testimony,
judges must always perform some form of reliability analysis,
we decline to “shackle the district court with a mandatory and
17
explicit” reliability proceeding. Hoult v. Hoult, 57 F.3d 1, 5 (1st
Cir. 1995). Instead, like the First Circuit, we “assume that the
district court performs such an analysis sub silencio throughout
the trial with respect to all expert testimony.” Id.Chapman, 18 P.3d at 1174; see also United States v. Bedford, 628 F.3d 1232, 1236 (10th Cir.
2010) (noting that “trial court was not obligated to act sua sponte [under Daubert ]without
an objection from [defense counsel]”); Ferry v. Com., 234 S.W.3d 358, 362 (Ky. 2007)
(citing Tharp v. Com., 40 S.W.3d 356, 368 (Ky. 2000)) (finding “trial court is not required
to conduct [a Daubert] hearing sua sponte”).
In the case at bar, even if the circuit court had held a Daubert hearing, sua
sponte, the record is devoid of any evidence upon which the court could have undertaken a
Daubert analysis—not even a cross-examination of Dr. Phillips that might have provided
fodder for a Daubert challenge. Moreover, had the petitioner utilized the journal articles
cited in his appellate brief to challenge Dr. Phillips’ opinion testimony at trial, such would
not necessarily have warranted the exclusion of Dr. Phillips’ testimony. In fact, our research
reveals that in other jurisdictions, medical experts have testified at trial using Tanner staging
to estimate the chronological age of children. See United States v. Hilton, 386 F.3d 13 (1st
Cir. 2004) (doctor testified regarding Tanner scale and estimated that nine images
“represented children at various stages of development, ranging from pre-school to young
teen”); Beaver v. State, 767 S.E.2d 503, 504 n.3 (Ga. Ct. App. 2014) (pediatrician testified
for State as expert in determining children’s ages using Tanner scale and gave her opinion
18
that children depicted in materials ranged in age from six years to sixteen years); State v.
Zabrinas, 24 P.3d 77, 80 (Kan. 2001) (advanced practice nurse testified using Tanner scale
and estimated that children in images ranged from five to fourteen years of age); State v.
Schroeder, 613 N.W.2d 911, 914 (Wis. Ct. App. 2000) (medical expert testified and
estimated ages of children in pictures found on defendant’s computer using Tanner scale).
Under Rule 702 of the West Virginia Rules of Evidence, “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.” W.V.R.E. 702 (2012). Here, Dr. Phillips was qualified in the fields of pediatrics
and child abuse and neglect, without objection, and she utilized “Harriet Lane,” a “sort of a
pediatric bible,” to explain “Tanner staging” and to estimate the children’s ages in the twenty
images admitted into evidence at trial—again, without objection.26 Once Dr. Phillips’
unchallenged testimony was received into evidence, it was left to the jury to evaluate that
testimony and give it the weight to which it was entitled. See Moore v. St. Joseph’s Hosp.
of Buckhannon, Inc., 208 W.Va. 123, 126, 538 S.E.2d 714, 717 (2000) (citation omitted)
(“‘the jury has the right to weigh the testimony of all witnesses, experts and otherwise, and
26
In addition to Dr. Phillips’ testimony, FBI analyst Melinda Cash testified that the
twenty images contained child pornography.
19
. . . the jury is to give only as much weight and credit to expert testimony as the jury deems
it entitled to when viewed in connection with all the circumstances’”). Accordingly, we find
no plain error in the admission of Dr. Phillips’ expert testimony at trial.
B. Sufficiency of the evidence to prove intent to possess the images
The petitioner asserts that although the State proved that the children depicted
in the twenty images were actual children, the State failed to prove that he intended to
possess those images. He asserts that the version of West Virginia Code § 61-8C-3 in effect
at the time of his prosecution did not contain a clear scienter27 requirement even though it
included the language “with knowledge.” Acknowledging that the statutory words “with
knowledge” may be equated with the statute’s current terminology, “knowingly,” the
petitioner nonetheless argues that West Virginia Code § 61-8C-3 (2010) did not contain the
current statutory language: “electronically access[] with intent to view . . . any material
portraying a minor engaged in any sexually explicit conduct[.]”28 Although the petitioner
concedes that he knowingly used a program to download batches of file attachments
containing pornography to his computer, he argues that the State failed to prove that he knew
that the downloads contained digital images of minors engaged in sexually explicit conduct,
27
“Scienter” is defined as “[a] degree of knowledge that makes a person legally
responsible for the consequences of his or her act . . . the fact of an act’s having been done
knowingly . . . .” Black’s Law Dictionary 1547 (10th ed. 2009).
28
West Virginia Code § 61-8C-3, as amended in 2014, is quoted in full in section F.,
infra.
20
or that it was his intent to acquire such images. The petitioner further argues that other than
his admission to Detective Lockhart that he used the flash drives that had been seized from
his home,29 there was little other evidence other than his son’s statements to tie ownership
of the subject flash drive to him.
Expressing a contrary view, the State asserts that the version of West Virginia
Code § 61-8C-3 in effect at the time of the petitioner’s criminal conduct, trial, and
convictions30 contained a scienter requirement that the sending, distribution, exhibition,
possession, display, or transportation of “any material visually portraying a minor engaged
in any sexually explicit conduct” be done “with knowledge.” The State maintains that its
evidence at trial was sufficient for the jury to convict, including that the petitioner knowingly
downloaded images from web sites that he knew would include child pornography; his
admission to Detective Lockhart that he was looking for images of “young looking girls;”
and the twenty pictures of child pornography found on his computer and flash drive.
We begin our analysis by recognizing that
[a] criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
29
The petitioner told Detective Lockhart that his wife also used the flash drives for
school.
30
See supra note 13.
21
circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the
jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set aside
only when the record contains no evidence, regardless of how it
is weighed, from which the jury could find guilt beyond a
reasonable doubt.
Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Bearing these
precepts in mind, we readily conclude that the State’s evidence was sufficient to convict.
Although the petitioner argues that his “knowledge” only extended to his
utilization of a program to download thousands of pornographic images to his computer, he
also told Detective Lockhart that he might see “6 pictures that you know you shouldn’t have”
each week, yet he continued to use this program to access pornography. In short, the State’s
evidence clearly indicated that the petitioner knew that he was regularly downloading a
certain amount of child pornography. Further, when Detective Lockhart asked the petitioner
whether he would keep a photo of a fourteen or a sixteen year old girl,31 the petitioner
answered that he might if she had “large breasts and like pubic hair and stuff” and “if the
girl’s attractive.” Although the petitioner told Detective Lockhart that he would periodically
31
For purposes of West Virginia Code § 61-8C-3, a “minor” is defined as “any child
under eighteen years of age.” W.Va.§ 61-8C-1(a) (2014). This was also the statutory
definition at the time of the petitioner’s trial.
22
sort the images and delete those of “little girls,” the testimony of the FBI analyst Melinda
Cash and Dr. Phillips proved otherwise.
Through Ms. Cash’s testimony, the State was able to prove that the petitioner
had manipulated the subject twenty images of child pornography by saving and transferring
the images to “folders” on his computer, or to the flash drive, or both. She further explained
how she determined when these twenty images were placed on the computer and/or the flash
drive.32 Importantly, Ms. Cash testified that none of these twenty images of child
pornography had been deleted. Further, Dr. Phillips had no hesitancy in expressing her
expert opinion that the girls in the twenty images were all under eighteen years of age. In
fact, she further opined that all were thirteen years of age or younger with some estimated
to be nine years of age or younger.
Viewing all of the evidence in the light most favorable to the prosecution,33 we
conclude that the State’s evidence was sufficient for the jury to find that the petitioner, with
knowledge, intentionally possessed the twenty images of minors engaged in sexually explicit
conduct in violation of West Virginia Code § 61-8C-3 (2010).
32
Ms. Cash testified that one of the twenty images was placed on the flash drive in
2006. During trial, the defense theory was that the images had been placed on the flash drive
by the petitioner’s son, J.S. However, in 2006, J.S. would have been just six years old.
33
Guthrie, 194 W.Va. 657, 461 S.E.2d 163, syl. pt. 3, supra.
23
C. Hearsay/Confrontation Clause
The petitioner next asserts that he was denied his constitutional right to a fair
trial when the trial court allowed the State to present hearsay testimony in violation of the
Confrontation Clause of the Sixth Amendment to the United States Constitution.34 Rather
than calling J.S., who was under subpoena and available to testify, to the witness stand, the
petitioner argues that the State chose to prove an element of the crime–possession–through
L.C.’s hearsay testimony that J.S. said the flash drive belonged to his father. He also asserts
the circuit court erred in overruling his hearsay objection to L.C.’s testimony under the
present sense impression exception to the hearsay rule, adding that the statements lacked
inherent reliability given the ages of L.C. and J.S.35
The State responds that the spontaneous statements made by J.S. when L.C.
opened the flash drive on her computer and the pornography appeared fell under both the
present sense impression and excited utterance exceptions to the rule against hearsay.36
34
See U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right to . . . be confronted with the witnesses against him[.]”).
35
See supra note 4.
36
Perhaps attributable to the brevity of the petitioner’s Confrontation Clause argument
in his appellate brief, the State did not address it.
24
The petitioner did not assert a Confrontation Clause objection to L.C.’s
testimony during trial. Consequently, he has waived the right to raise the issue on appeal.
State v. Reed, 223 W.Va. 312, 322, 674 S.E.2d 18, 28 (2009) (finding defendant waived his
right to raise Confrontation Clause issue on direct appeal where he failed to raise timely
objection to challenged testimony at trial). Even if we were to invoke a plain error analysis37
in this regard, we find there is no constitutional violation.
Under “Crawford v. Washington, 541 U.S. 36, 124 (2004), the Confrontation
Clause contained within the Sixth Amendment to the United States Constitution and Section
14 of Article III of the West Virginia Constitution bars the admission of a testimonial
statement by a witness who does not appear at trial, unless the witness is unavailable to
testify and the accused had a prior opportunity to cross-examine the witness.” Syl. Pt. 6,
State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). As explained in Mechling, “a
testimonial statement is, generally, a statement that is made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available
for use at a later trial.” Mechling, 219 W.Va. at 369, 633 S.E.2d at 314, syl. pt. 8, in part.
37
See Myers, 204 W.Va. at 453, 513 S.E.2d at 680, syl. pt. 1, supra.
25
Clearly, the statements made by ten-year-old J.S. to L.C. regarding the flash
drive belonging to his father were not “testimonial” as they were not made “under
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Id. Even if we were to assume, arguendo, that
J.S.’s statements were testimonial, their admission was harmless given the State’s other
evidence at trial. In his statement to Detective Lockhart, the petitioner never stated that the
flash drive was not his. Further, FBI analyst Melinda Cash testified that some of the same
child pornography was found on both the flash drive and the petitioner’s desktop computer
with the username “Bill.” Accordingly, we find no violation of either Crawford or Mechling.
We now turn to the issue that was preserved below: the petitioner’s hearsay
objection to L.C.’s testimony regarding J.S.’s statements made when the flash drive was
opened. In this regard, “[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.” Syl. Pt. 4,
State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
As indicated above, L.C. testified at trial that J.S. handed her a flash drive,
asking her to download music onto it and, when she inserted the flash drive into her
computer, files “popped up” with pictures that she did not think they were meant to see. She
described J.S. in that moment as “look[ing] kind of scared” as he told her that the flash drive
26
“wasn’t his”—that he had “accidentally grabbed his dad’s” flash drive. The petitioner
objected to this testimony on the basis of hearsay.38 The State responded that the testimony
fell within the present sense impression exception to the hearsay rule,39 and the objection was
overruled. The State later argued in opposition to the petitioner’s motion for judgment of
acquittal that J.S.’s statements were excited utterances.40
In determining admissibility of evidence under the excited utterance exception
to the rule against hearsay, the Court has set forth the factors to be considered:
In order to qualify as an excited utterance under W.Va.
R. Evid. 803(2): (1) the declarant must have experienced a
startling event or condition; (2) the declarant must have reacted
while under the stress or excitement of that event and not from
reflection and fabrication; and (3) the statement must relate to
the startling event or condition.
38
See W.V.R.E. 801(c) (2012) (“‘Hearsay. — “Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”).
39
See W.V.R.E. 803(1) (2012) (“Present Sense Impression. — A statement describing
or explaining an event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter.”).
40
See W.V.R.E. 803(2) (2012) (“Excited Utterance. — A statement relating to a
startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.”).
27
Syl. Pt. 7, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995). Upon application of
these precepts, it is clear that the challenged testimony fell within the excited utterance
exception to the rule against hearsay.41
The statements made by J.S. when L.C. opened the flash drive and the
pornography was displayed were clearly a spontaneous reaction to this startling and
disturbing event. Without sufficient time to reflect and make a conscious misrepresentation,
J.S. immediately stated the flash drive was not his and that he had accidentally grabbed his
father’s flash drive. Accordingly, we find no error in the trial court’s discretionary decision
to overrule the petitioner’s hearsay objection.
D. Double Jeopardy
In addressing the petitioner’s double jeopardy arguments, we note that our
review is plenary: “a double jeopardy claim [is] reviewed de novo.” Syl. Pt. 1, in part, State
v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996). As this Court has previously explained:
41
Having determined that L.C.’s testimony concerning J.S.’s statements was
admissible at trial as an excited utterance under Rule 803(2), we find it unnecessary to
determine whether this testimony would also be admissible as a present sense impression
under Rule 803(1).
28
“The purpose of the Double Jeopardy Clause42 is to
ensure that sentencing courts do not exceed, by the device of
multiple punishments, the limits prescribed by the legislative
branch of government, in which lies the substantive power to
define crimes and prescribe punishments.” Syl. Pt. 3, Sears, 196
W.Va. 71, 468 S.E.2d 324. “‘The defense of double jeopardy
may be waived [however] and the failure to properly raise it in
the trial court operates as a waiver.’” State v. McGilton, 229
W.Va. 554, 558, 729 S.E.2d 876, 880 (2012) (quoting State v.
Carroll, 150 W.Va. 765, 769, 149 S.E.2d 309, 312 (1966)).
State v. Lewis, 235 W.Va. 694, 701, 776 S.E.2d 591, 598 (2015) (footnote added). We will
address the petitioner’s double jeopardy arguments, in turn, below.
1. “Unit of Prosecution”
The petitioner asserts a double jeopardy challenge directed to the sufficiency
of the State’s evidence against him. Arguing that the “unit of prosecution” is “any material”
under West Virginia Code § 61-8C-3 (2010),43 irrespective of the number of images, the
petitioner asserts insufficiency in the State’s evidence to prove multiple instances of
possession of material depicting children engaged in sexually explicit conduct. He contends
42
The Fifth Amendment to the United States Constitution provides, in part, that no
person “shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb[.]” The Fifth Amendment is applied to the states through the Fourteenth Amendment.
See State v. McGilton, 229 W.Va. 554, 560 n.8, 729 S.E.2d 876, 882 n.8 (2012) (“The
Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States is
applied to the states by the Fourteenth Amendment.”). Parallel language is found in article
III, section 5 of the West Virginia Constitution, which provides that no person in any
criminal case shall “be twice put in jeopardy of life or liberty for the same offence.”
43
West Virginia Code § 61-8C-3(b) (2014) is quoted, in full, in section F., infra.
29
that the twenty images–one for each count of the indictment–were collectively “any material”
such that the State proved only a single instance of possession. In this regard, the petitioner
asserts that Detective Lockhart’s trial testimony reflects that he possessed all twenty images
at one particular time in March 2010 such that he should only have been charged with one
possession under West Virginia Code § 61-8C-3 (2010). Accordingly, the petitioner argues
that his sentencing on twenty counts constitutes multiple punishments for the same offense
in violation of double jeopardy, and that he should be resentenced on a single count of
violating West Virginia Code § 61-8C-3 (2010).
The State counters that the petitioner’s focus on the statutory words “any
material” in West Virginia Code § 61-8C-3 (2010) for his double jeopardy argument is
misplaced. Rather than referencing quantity, the State contends that “any material” refers
to the medium on which the image is contained, such as a photograph, a video, a compact
disc, etc. The State further argues that the statutory language in West Virginia Code § 61­
8C-3 at the time of the petitioner’s conduct and convictions in 2012, as well as our prior case
law, make clear that each image constituted a separate act. Consequently, the State maintains
that its evidence was sufficient to prove multiple instances of possession of material visually
portraying a minor engaged in sexually explicit conduct since each of the twenty images
constituted a separate act for purposes of sentencing under West Virginia Code § 61-8C-3
(2010).
30
In addressing the parties’ arguments, we are informed by our prior case law.
“A claim that double jeopardy has been violated based on multiple punishments imposed
after a single trial is resolved by determining the legislative intent as to punishment.” Syl.
Pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). As we explained in State v.
McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012),
“[a] claim that double jeopardy has been violated based on
multiple punishments imposed after a single trial is resolved by
determining the legislative intent as to punishment.” Syllabus
Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). .
. . As helpful as the various rules of statutory construction may
be in determining legislative intent, perhaps the soundest
guidance comes from the Supreme Court’s admonition that we
give the language of a statute a “commonsensical meaning.”
United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct.
227, 229, 97 L.Ed. 260 (1952).
McGilton, 229 W.Va. at 562, 729 S.E.2d at 884. More recently, we held that “[t]he analysis
of whether a criminal defendant may be separately convicted and punished for multiple
violations of a single statutory provision turns upon the legislatively intended unit of
prosecution.” Syl. Pt. 4, State v Goins, 231 W.Va. 617, 748 S.E.2d 813 (2013).
At the time of the petitioner’s criminal conduct in the case at bar, West Virginia
Code § 61-8C-3 provided, in part: “Any person who, with knowledge, sends or causes to be
sent, or distributes, exhibits, possesses or displays or transports any material visually
portraying a minor engaged in any sexually explicit conduct is guilty of a felony[.]” The
petitioner does not assert, nor do we find, any ambiguity in this statutory language. See Syl.
31
Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968) (“Where the language of a
statute is clear and without ambiguity the plain meaning is to be accepted without resorting
to the rules of interpretation.”); see also Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65
S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.”). In addressing the plain meaning of the statutory words “possesses” and
“any material,” we find guidance in State v. Green, 207 W.Va. 530, 534 S.E.2d 395 (2000).
In Green, the defendant asserted a double jeopardy violation in relation to her
convictions on ten separate counts of uttering that arose from her contemporaneous
presentment of ten forged money orders. The Court examined the phrase “any writing” in
the uttering statute44 in determining the legislatively-intended unit of prosecution. Reasoning
that the term “any” in the context of the singular noun “writing” reflected a singular unit of
prosecution, the Court found that, without violating double jeopardy, the defendant could be
charged with separate offenses based upon each document uttered. Id. at 538, 534 S.E.2d
at 403.
44
See W.Va. Code § 61-4-5(a) (emphasis added) (“If any person forge any writing, .
. . to the prejudice of another’s right, or utter or attempt to employ as true such forged
writing, knowing it to be forged, he shall be guilty of a felony . . . .”).
32
Similarly, in the case at bar, rather than utilizing the plural word “materials,”
the Legislature chose to use the word “material” in West Virginia Code § 61-8C-3. We agree
with the State that as used in this statutory context, “material” refers to the particular media
that is “visually portraying a minor engaged in any sexually explicit conduct[,]” whether it
be a photograph, digital image, video, etc. Moreover, the use of the singular “minor,” rather
than the plural “minors,” reflects the Legislature’s intent to protect each and every child
victim. Similar reasoning was expressed in Commonwealth v. Davidson, 938 A.2d 198 (Pa.
2007).
In Davidson, the court addressed the defendant’s double jeopardy challenge
to his multiple convictions for violating Pennsylvania’s child pornography statute.45
Concluding that “[t]he General Assembly’s use of the term ‘any,’ which could mean one or
more items, suggests a lack of restriction or limitation[,]” the court found there was no
violation of double jeopardy in the defendant’s convictions on multiple counts of violating
the child pornography statute. Id. at 219. Explaining further, the court stated
it is not difficult to discern why the General Assembly would
target individual instances of possession. Each use of a minor
to create a visual depiction of child pornography constitutes a
45
The Pennsylvania statute provided that “it is a violation of the law for ‘[a]ny person
who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film,
videotape, computer depiction or other material’ which depicts a minor ‘engaging in a
prohibited sexual act or in the simulation of such act.’” Davidson, 938 A.2d at 218-19
(citation omitted) (emphasis added).
33
separate and distinct abuse of that child, and thus represents an
individual violation of the statute. . . . We conclude that each
image of child pornography creates a permanent record of a
child’s abuse, which results in continuing exploitation of a child
when the image is subsequently viewed.
Id. We agree with the reasoning of the Pennsylvania Supreme Court. Indeed, we recently
expressed similar reasoning in Morgan v. Ballard, No. 11-1677, 2013 WL 149602 (W.Va.
Jan. 14, 2013) (memorandum decision).
In Morgan, the petitioner sought a writ of habeas corpus, arguing that his trial
counsel was ineffective for failing to raise a double jeopardy argument in relation to his
multiple convictions of violating West Virginia Code § 61-8C-3 (2010). He asserted that his
convictions on ten counts should have been considered in the aggregate as one count. In
upholding the circuit court’s denial of habeas relief, this Court “adopt[ed] and incorporat[ed]
the circuit court’s well-reasoned findings and conclusions,”46 which included the lower
court’s conclusion that “our statutes protecting children from exploitation are interpreted to
mean that possession of each photograph is a separate act and is a distinct and separate unit
of prosecution allowing the State of West Virginia to charge separate counts and prosecute
each act of possession.” Id. at *19; see also State v. Richard D., No. 13-1250, 2015 WL
3751819 (W.Va. June 15, 2015) (memorandum decision) (affirming defendant’s convictions
46
We appended a copy of the circuit court’s order to the Court’s memorandum
decision. Id. at *2
34
on five counts of possession of material depicting minor engaged in sexually explicit conduct
in violation of West Virginia Code § 61-8C-3).
Viewing all of the evidence in the light most favorable to the prosecution,47 we
find the State’s evidence was sufficient to prove that each of the twenty images depicted a
minor engaged in sexually explicit conduct and, for the reasons stated above, each image
constituted a separate violation of West Virginia Code § 61-8C-3 (2010). Accordingly, we
find no violation of double jeopardy.
2. Multiple Punishments for Same Offense
The petitioner argues that he has been subjected to multiple punishments for
the same offense in violation of the double jeopardy clause through the circuit court’s entry
of the jointly submitted second amended sentencing order. The petitioner contends that the
second amended sentencing order is illegal because it directs counts one through six to run
consecutively, whereas the earlier sentencing orders directed counts one through five to run
consecutively. Having begun to serve his sentence at the time the second amended
sentencing order was entered, the petitioner contends that his sentence was impermissibly
increased by two years because he should have been sentenced to a total of fifteen, rather
than seventeen, years.
47
Guthrie, 194 W.Va. 657, 461 S.E.2d 163, syl. pt. 3, supra.
35
Citing Rule 35(a) of the Rules of Criminal Procedure, the State acknowledges
that the trial court was obligated to correct the petitioner’s sentence by reducing the seven-
year recidivist sentence imposed in the first amended sentencing order to the five years
imposed in the second amended sentencing order. To compensate for this two-year reduction
in the recidivist sentence given the trial court’s express intent to impose a total period of
incarceration of seventeen years, the State asserts that the jointly proposed second amended
sentencing order directed counts one through six, rather than one through five, to be served
consecutively. Because the petitioner’s total sentence did not increase through the court’s
entry of the second amended sentencing order, the State argues that there has been no
violation of double jeopardy.
Importantly, the double jeopardy clause does not relieve a defendant from the
consequences of his voluntary choice to invalidate his original punishment. See United
States v. Scott, 437 U.S. 82, 99 (1977) (“the Double Jeopardy Clause, which guards against
Government oppression, does not relieve a defendant from the consequences of his voluntary
choice.”).48 Indeed, we are unpersuaded that the double jeopardy clause is violated when a
48
In Commonwealth v. Cumming, 995 N.E.2d 1094, 1097 (Mass. 2013), the court
addressed a defendant’s double jeopardy challenge concerning the trial court’s restructuring
of the lawful portions of his sentencing during re-sentencing. The defendant argued that only
the unlawful portion of his sentence could be modified. The Massachusetts court disagreed,
finding that the “restructuring [of] the ‘final’ lawful portions of the defendant’s sentences
under rule 30(a) . . . [had] not placed [the defendant] twice in jeopardy.” 995 N.E.2d at1097.
(continued...)
36
court restructures the lawful portions of a defendant’s sentence when correcting the unlawful
portions pursuant to a Rule 35(a) motion where, as here, the sentence is within statutory
limits and the aggregate sentence has not increased.
It is axiomatic that sentencing is left to the sound discretion of the trial court.
See Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997) (finding that
sentencing matters are generally reviewed “under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.”). Moreover, “[s]entences
imposed by the trial court, if within statutory limits and if not based on some [im]permissible
factor, are not subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366,
287 S.E.2d 504 (1982). Inasmuch as the circuit court expressed its intent in the second
amended sentencing order to impose an aggregate period of incarceration of seventeen years,
as it had done in the first amended sentencing order, and because the sentences imposed in
the second amended sentencing order are within statutory limits49 and are not based upon an
impermissible factor, we find no double jeopardy violation.
48
(...continued)
The court further observed that “[b]y filing a motion to correct his unlawful sentence . . . the
defendant knowingly exposed himself to the possibility that his entire sentencing scheme
might be restructured.” Id. at 1098.
49
See supra note 13; see also W.Va. Code § 61-11-18 (2010).
37
E. Right to be present at sentencing
The petitioner asserts that the trial court erred and violated his due process right
to be present at every stage of his trial by entering the submitted second amended sentencing
order outside his presence. Alleging that the first two sentencing orders were void because
the court misapplied the recidivist enhancement, he argues that it was necessary for him to
be present at the critical stage when the circuit court entered the jointly proposed second
amended sentencing order. He further argues that the error is not harmless.
The State responds that there is no error in this regard. Citing the petitioner’s
two prior sentencing hearings, the State argues that there was no need for any further factual
development prior to the circuit court’s entry of the second amended sentencing order, which
was jointly proposed by the parties to correct a technical issue of law on the recidivist
sentencing.
We have long held that “[t]he defendant has a right under Article III, Section
14 of the West Virginia Constitution to be present at all critical stages in the criminal
proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that
what transpired in his absence was harmless.” Syl. Pt. 6, State v. Boyd, 160 W.Va. 234, 233
S.E.2d 710 (1977); see also W.Va. R. Crim. P. 43 (a) (“The defendant shall be present . . .
38
at every state of the trial including . . . at the imposition of sentence, except as otherwise
provided by this rule.”).
Here, the parties jointly proposed the second amended sentencing order, which
was “unrelated to the underlying truth-finding process . . . and only correct[ed] the improper
[recidivist] sentence.” State ex rel. McMannis v. Mohn, 163 W.Va. 129, 142, 254 S.E.2d
805, 812 (1979). Further, “[a] defendant need not be present . . . [a]t a conference or
argument upon a technical question of law not depending upon facts within the personal
knowledge of the defendant.” W.Va. R. Crim P. 43(c)(3); see also State v. Conley, 168
W.Va. 694, 697 n.2, 285 S.E.2d 454, 456 n.2 (1981) (“Federal courts and the courts of sister
states have laid down the rule that the right of a defendant to be present does not extend to
post-trial hearings where only questions of law are determined.”).
In the instant matter, the appendix record reflects that the petitioner requested
a hearing in his pro se Rule 35(a) motion filed in January 2014. However,
[i]n correcting an illegal sentence under Rule 35(a) of the
West Virginia Rules of Criminal Procedure, a trial court has
discretion to correct the sentence without holding a de novo
resentencing hearing. This Court will not reverse the denial of
a request for a de novo resentencing hearing on a trial court’s
correction of a sentence under Rule 35(a) absent a showing of
an abuse of discretion.
39
Syl. Pt. 2, in part, State v. Tex B.S., 236 W.Va. 261, 778 S.E.2d 710 (2015).50
Inasmuch as the petitioner had two sentencing hearings, and given that the
parties jointly submitted the proposed second amended sentencing order for entry to “correct
technical question of law not depending upon facts within the personal knowledge of the
defendant,”51 we find no abuse of discretion in the circuit court’s adoption and entry of the
jointly proposed order without holding a third sentencing hearing. Id.F. Sentencing under Amended Statute
Through this Court’s administrative order entered on February 4, 2015, we
directed the parties to address whether the petitioner “may elect to be sentenced under the
revised version of W.Va. Code § 61-8C-3 that mitigated the punishment for possessing
multiple images of materials depicting minors engaged in sexually explicit conduct.”
Although the petitioner assigned as error the issue of whether he should have been sentenced
under West Virginia Code § 61-8C-3, as amended in 2014, in his notice of appeal filed on
June 5, 2015, he did not specifically address this issue in his appellate brief. The State
followed the Court’s directive and addressed the issue in its appellate brief.
50
“‘As a general rule, judicial decisions are retroactive in the sense that they apply
both to the parties in the case before the court and to all other parties in pending cases.’
Crowe v. Bolduc, 365 F.3d 86, 93 (1st Cir. 2004).” Caperton v. A.T. Massey Coal Co., Inc.,
225 W.Va. 128, 156, 690 S.E.2d 322, 350 (2009).
51
See W.Va. R. Crim. P. 43(c)(3).
40
In 2014, the Legislature made significant changes to West Virginia Code § 61­
8C-3, which now provides, as follows:
(a) Any person who, knowingly and willfully, sends or
causes to be sent or distributes, exhibits, possesses,
electronically accesses with intent to view or displays or
transports any material visually portraying a minor engaged in
any sexually explicit conduct is guilty of a felony.
(b) Any person who violates the provisions of subsection
(a) of this section when the conduct involves fifty or fewer
images shall, upon conviction, be imprisoned in a state
correctional facility for not more than two years or fined not
more than $2,000 or both.
(c) Any person who violates the provisions of subsection
(a) of this section when the conduct involves more than fifty but
fewer than six hundred images shall, upon conviction, be
imprisoned in a state correctional facility for not less than two
nor more than ten years or fined not more than $5,000, or both.
(d) Notwithstanding the provisions of subsections (b) and
(c) of this section any person who violates the provisions of
subsection (a) of this section when the conduct involves six
hundred or more images or depicts violence against a child or a
child engaging in bestiality shall, upon conviction, be
imprisoned in a state correctional facility for not less than five
nor more than fifteen years or fined not more than $25,000, or
both.
(e) For purposes of this section each video clip, movie or
similar recording of five minutes or less shall constitute
seventy-five images. A video clip, movie or similar recording
of a duration longer than five minutes shall be deemed to
constitute seventy-five images for every two minutes in length
it exceeds five minutes.
41
W.Va. Code § 61-8C-3 (2014). The State argues that the petitioner cannot elect to be
sentenced under the 2014 version of the statute because (1) his offense, indictment,
convictions, and sentencing all occurred well prior to the effective date of the amended
statute, and (2) the Legislature gave no indication that the revised version of the statute was
retroactive. Notwithstanding our decision in State v. Cline, 206 W.Va. 445, 525 S.E.2d 326(1999), which would impel a contrary result, we agree with the State.
In Cline, the defendant was arrested for driving on a suspended or revoked
license in violation of West Virginia § 17B-4-3(a) (1994). Upon his trial and conviction, he
was sentenced by order dated August 10, 1998, to forty-eight hours in jail and fined $250.00
pursuant to the mandatory provisions of West Virginia Code § 17B-4-3(a) (1994). On
appeal, Mr. Cline argued that he should not receive a jail sentence for his conviction because
the Legislature amended West Virginia Code § 17B-4-3, effective April 7, 1999, so as to
eliminate the incarceration penalty for this crime. In reliance upon West Virginia Code § 2­
2-8 (2013),52 the general savings statute, Mr. Cline asserted that because the “‘penalty or
52
West Virginia Code § 2-2-8 provides, as follows:
The repeal of a law, or its expiration by virtue of any provision
contained therein, shall not affect any offense committed, or penalty or
punishment incurred, before the repeal took effect, or the law expired,
save only that the proceedings thereafter had shall conform as far as
practicable to the laws in force at the time such proceedings take place,
unless otherwise specially provided; and that if any penalty or
(continued...)
42
punishment’” imposed by the 1994 statute is “‘mitigated by the new law[,]’” he was entitled
to choose to be sentenced under the 1999 amendment. Cline, 206 W.Va. at 451, 525 S.E.2d
at 332. This Court agreed and remanded the matter for resentencing.
While there were no new points of law expressly set forth in Cline, the opinion
effectually expanded our prior precedent, which we now take the opportunity to address.
Indeed, we are persuaded that the separate opinion penned by Justice Davis in Cline reached
the correct result.
Justice Davis expressed grave concern that “the unwarranted and
unprecedented interpretation given by the majority to W. Va. Code 2-2-8 sets the stage for
voiding countless criminal sentences.” Cline, 206 W.Va. at 452, 525 S.E.2d at 333 (Davis,
J., concurring, in part, and dissenting, in part).53 As Justice Davis aptly explained in her
separate opinion, West Virginia Code § 2-2-8 provides a defendant with
the right to elect between being sentenced under a new or
repealed statute only when the sentence is imposed “after” the
52
(...continued)
punishment be mitigated by the new law, such new law may, with the
consent of the party affected thereby, be applied to any judgment
pronounced after it has taken effect.
Id. (emphasis added).
53
Justice Davis concurred only to the extent that the majority affirmed the defendant’s
conviction and monetary fine. Cline, 206 W.Va. at 452, 525 S.E.2d at 452.
43
new law has taken effect. The majority has taken this simplistic
and unambiguous statute and ruled that a defendant has a right
to elect between being sentenced under a new or repealed
statute, even though the new statute took effect after the
judgment was rendered. This twisted interpretation of the
statute now permits every defendant, currently sentenced and
incarcerated, to seek resentencing under any new and more
lenient statute enacted after his or her sentence has been
imposed. This is absolutely illogical. “To give [a] new statute
retroactive effect in these circumstances would stretch the
concept of retroactivity beyond any known case or principle.”
White v. Gosiene, 187 W.Va. 576, 582, 420 S.E.2d 567, 573
(1992).
Cline, 206 W.Va. at 452-53, 525 S.E.2d at 333-34. Highlighting the clear fallacy in the
majority’s opinion in Cline is syllabus point six of State v. Easton, 203 W.Va. 631, 510
S.E.2d 465 (1998), which was issued only a year earlier:
When a criminal defendant is convicted of a crime and
the penal statute defining the elements of the crime and
prescribing the punishment therefor is repealed or amended after
his/her conviction of the crime but before he/she has been
sentenced therefor, the sentencing court shall apply the penalties
imposed by the statute in effect at the time of the offense, except
where the amended penal statute provides for lesser penalties.
If the amended penal statute provides lesser penalties for the
same conduct proscribed by the statute in effect at the time of
the offense, the defendant shall have an opportunity to elect
under which statute he/she wishes to be sentenced, consistent
with the statutory mandate contained in W.Va. Code § 2-2-8
(1923) (Repl. Vol. 1994) and our prior directive set forth in
Syllabus point 2 of State ex rel. Arbogast v. Mohn, 164 W.Va.
6, 260 S.E.2d 820 (1979).
Easton, 203 W.Va. at 634, 510 S.E.2d at 468; see also Cline, 206 W.Va. at 453, 525 S.E.2d
at 334 (Davis, J., concurring, in part, and dissenting, in part) (quoting Easton, 203 W.Va. at
44
634, 510 S.E.2d at 468, syl. pt. 6). Our other precedent should have compelled a contrary
result in Cline, as well:
This Court has never interpreted W.Va. Code 2-2-8 as
permitting a defendant to elect between new and repealed
sentencing statutes when the new statute took effect after his or
her sentence was imposed. See State ex rel. Arbogast v. Mohn,
164 W.Va. 6, 11, 260 S.E.2d 820, 823-824 (1979) (“W.Va.
Code § 2-2-8 clearly provides for the application of mitigated
penalties to a judgment rendered after the effective date of a
statutory amendment upon the election of the party affected.”).
See e.g., State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981);
Gibson v. Bechtold, 161 W.Va. 623, 245 S.E.2d 258 (1978);
State v. Gregory, 143 W.Va. 878, 105 S.E.2d 532 (1958); State
v. Mason, 141 W.Va. 217, 89 S.E.2d 425 (1955); State v.
McClung, 116 W.Va. 591, 182 S.E. 865 (1935).
Cline, 206 W.Va. at 453, 525 S.E.2d at 334 (Davis, J., concurring, in part, and dissenting, in
part) (emphasis in original).
Furthermore, Justice Davis readily dispensed with any argument that an
amendment during the pendency of an appeal would require application of the amended
statute:
Obviously, the spurious argument can be made that a case
does not become final until the appellate decision is rendered or
the appeal period has expired. We rejected this argument in
State ex rel. Miller v. Bordenkircher, 166 W.Va. 169, 172, 272
S.E.2d 676, 678 (1980) (per curiam), wherein we stated:
To now conclude that petitioner is entitled to be
set free, when he committed the crime of which
he was convicted over twenty-four months before
the new law went into effect and was convicted
45
and sentenced some fifteen months before the old
law was repealed, flies in the face of reason.
(Emphasis added.).
Cline, 206 W.Va. at 453 n.2, 525 S.E.2d at 334 n.2 (Davis, J., concurring, in part, and
dissenting, in part). In the case at bar, the petitioner was first sentenced on October 19, 2012.
Approximately twenty-one months later, the 2014 amendments to West Virginia Code § 61­
8C-3 became effective.54
Recently, in Richard D., No. 13-1250, 2015 WL 3751819 (W.Va. June 15,
2015) (memorandum decision), we addressed a defendant’s argument that he should be
sentenced on his convictions for five counts of violating West Virginia Code § 61-8C-3
under the 2014 version of the statute, which went into effect after he was sentenced. We
denied relief, explaining that “the revision to West Virginia Code § 61-8C-3 did not take
effect until after the time of the criminal acts, his entry of a nolo contendere plea, and his
sentencing.” Richard D., at *3.
Given the discrepancy in our precedent on this issue, we now clarify our law
and expressly hold that the statutory penalty in effect at the time of a defendant’s criminal
conduct shall be applied to the defendant’s conviction(s). Where a statutory amendment
54
The circuit court’s first and second amended sentencing orders were also entered
several months prior to the effective date of the 2014 amendments.
46
mitigating punishment becomes effective prior to sentencing, West Virginia Code § 2-2-8
(2013) allows a defendant to seek application of the mitigated punishment before the trial
court. Any correction of sentence pursuant to Rule 35(a) of the West Virginia Rules of
Criminal Procedure shall be in accordance with the statutory penalty in effect at the time of
the original sentencing. Insofar as the decision in State v. Cline, 206 W.Va. 445, 525 S.E.2d
326 (1999), is inconsistent with this holding, it is expressly overruled.
IV. Conclusion
For the reasons stated above, the January 21, 2014, Second Amended
Sentencing Order of the Circuit Court of Putnam County is hereby affirmed.
Affirmed.
47