State of West Virginia v. Christopher Keffer ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent November 25, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-1066 (Webster County 11-F-2) OF WEST VIRGINIA
Christopher Keffer,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Christopher Keffer’s appeal, by counsel Daniel R. Grindo, arises from the
Circuit Court of Webster County’s September 3, 2013, order, which sentenced petitioner to five
years in prison after revoking his parole. The State, by counsel Derek A. Knopp, filed a response
in support of the circuit court’s order. Petitioner argues that the circuit court erred in finding that
the police executed valid search warrants and, consequently, erred in admitting the seized
evidence. Petitioner also argues that the circuit court erred in allowing the State to reopen its
case-in-chief after arguments were made by both parties.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In June of 2012, the circuit court granted petitioner parole after he was convicted of the
manufacture and delivery of a controlled substance. In April of 2013, police officers applied for
three separate and successive search warrants after discovering a comment posted on a local
internet forum, Topix.com, which stated, “Like to see all cops die and judges get capped[.]” Each
of the search warrants alleged that the post was made by an individual who unlawfully used an
electronic device to deliver harassing or abusive communications with the intent to threaten or
commit a crime against a person or property, in violation of West Virginia Code § 61-3C-14a.
The forum had asked participants to respond to the question, “What local issues do you have
issues with and what would you do to try and change them [?]” The first search warrant directed
Topix to provide the IP address of the computer that posted the comment at issue. After
receiving this information, the second search warrant directed Frontier Communications to
provide the physical address and account information for the computer from which the comment
was posted. The results of the first two search warrants established that petitioner posted the
subject comment on Topix. Subsequently, the last search warrant sought to search the “residence,
outbuildings, and curtilage of the Keffer residence” for any “computer, hard drives, smart
phones, or other devices that could be used to access the internet . . . or to make posts on social
media websites[.]”
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When the police went to petitioner’s home, petitioner admitted to posting the subject
comment on Topix. Upon searching the home, the police also found marijuana seeds, five
marijuana plants, and eighteen grams of marijuana. Petitioner admitted to the police officers that
all of these items belonged to him. Following this search, the State filed a motion to revoke
petitioner’s parole. At the hearing on the State’s motion, the police officers testified about
petitioner’s admissions to them and the items they found at his home. The State did not introduce
the warrants in its case-in-chief. After both parties rested, the State moved to reopen the case to
admit the search warrants into evidence, to which petitioner objected. The circuit court granted
the State’s motion and held another hearing on this matter.
At the second hearing, the State presented the same testimony as the initial hearing and
moved for the admission of the search warrants. Petitioner argued that the search warrants were
inadmissible as no probable cause existed for their execution. The circuit court disagreed and
ultimately revoked petitioner’s parole, after finding that petitioner made general threats against
law enforcement and judges, tested positive for THC and opiates following the search of his
home, possessed controlled substances in the home, and manufactured marijuana in the home.
The circuit court re-sentenced petitioner to serve five years in prison, with credit for time served.
Petitioner now brings this appeal.
“This Court reviews the circuit court’s final order and ultimate disposition under an abuse
of discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va.
178, 469 S.E.2d 114 (1996). “[A]ppellant[s] must carry the burden of showing error in the
judgment of which [t]he[y] complain[]. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be presumed, all presumptions
being in favor of the correctness of the judgment.” Syl. Pt. 4, State v. Farley, 230 W.Va. 193,
737 S.E.2d 90 (2012) (internal citations omitted).
Upon our review, we find no error in the circuit court’s ruling that the search warrants at
issue were valid. “[T]he validity of an affidavit for a search warrant is to be judged by the totality
of the information contained in it.” Syl. Pt. 4, in part, State v. Adkins, 176 W.Va. 613, 346 S.E.2d
762 (1986). “Reviewing courts should grant magistrates deference when reviewing warrants for
probable cause. Such warrants should be judged by a ‘totality-of-the-circumstances’ test.” Syl.
Pt. 5, State v. Thomas, 187 W.Va. 686, 421 S.E.2d 227 (1992). As previously discussed, West
Virginia Code § 61-3C-14a directs, in part, that it is unlawful for any person to use a computer or
other electronic communication device to anonymously contact another with the intent to harass
or abuse or to threaten to commit a crime against any person or property. The record establishes
that the State had sufficient information upon which the magistrate found probable cause to
execute each of the search warrants concerning the subject post on Topix and, accordingly, the
circuit court did not err in finding the search warrants were valid and in admitting the evidence
seized during the execution of these warrants.
We also find no error in the circuit court allowing the State to reopen its case after the
first hearing. “[W]hether or not a case shall be reopened for the introduction of evidence after
both parties have rested, or after the close of the evidence, is within the discretion of the trial
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court.” State v. Daggett, 167 W.Va. 411, 423, 280 S.E.2d 545, 553 (1981). We have further held
as follows:
It is within the sound discretion of the court in the furtherance of the
interests of justice to permit either party, after it has rested, to reopen the case for
the purpose of offering further evidence and unless that discretion is abused the
action of the court will not be disturbed.
Syl. Pt. 4, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974). The record shows that at the
second hearing on this matter, both parties were given equal opportunities to examine the
witnesses and present arguments. In its order revoking petitioner’s parole and sentencing him to
five years in prison, the circuit court found that the evidence, including petitioner making no
objection to the police officers searching his home and his admission that the found marijuana
belonged to him, supported the State’s motion to revoke petitioner’s parole.
For the foregoing reasons, we affirm the circuit court’s September 3, 2013, order
revoking petitioner’s parole and sentencing him to five years in prison with credit for time
served.
Affirmed.
ISSUED: November 25, 2014
CONCURRED IN BY:
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Robin Jean Davis
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