Andrew W. Castaneira, by counsel Lori M. Waller, appeals his
conviction in the Circuit Court of Berkeley County of
possession of material depicting a minor engaged in sexually
explicit conduct that depicts violence against a child in
violation of West Virginia Code § 61-8C-3(d).
Respondent, the State of West Virginia, by counsel
Christopher C. Quasebarth, responds in support of the circuit
court order. Petitioner filed a reply, which raised
additional assignments of error pursuant to Rule 10(c)(10)(b)
of the West Virginia Rules of Appellate Procedure. With the
Court's permission, the State filed a response that
addressed petitioner's Rule 10(c)(10)(b) assignments of
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
was indicted on three counts of possessing material depicting
a minor engaged in "sexually explicit conduct" and
"violence against a child, " in violation of West
Virginia Code § 61-8C-3(a) and -3(d). Petitioner
retained private counsel, Gregory V. Smith, who withdrew from
the case due to "a total, complete and unfixable
breakdown in [a]ttorney client communications."
Thereafter, the circuit court appointed the Public
Defender's Office to represent petitioner; however, it
also withdrew. The circuit court then appointed attorney
Andrew Arnold. Thereafter, the parties exchanged discovery
and filed pre-trial motions, and the circuit court scheduled
a pre-trial hearing for September 3, 2015, and trial for
September 15, 2015. On September 1, 2015, Mr. Arnold moved to
withdraw as counsel, citing a "complete breakdown in the
September 3, 2015, pre-trial hearing, the circuit court
granted Mr. Arnold's motion to withdraw and appointed
attorney Matthew Yanni as petitioner's counsel. The
circuit court also scheduled a hearing for September 9, 2015,
to determine whether Mr. Yanni would be ready to proceed to
trial on September 15, 2015. Soon thereafter, Mr. Yanni moved
to dismiss petitioner's indictment.
September 9, 2015, hearing, the State voluntarily dismissed
two of the three counts of petitioner's indictment.
Thereafter, the circuit court offered to continue trial to a
later date; however, counsel for both parties stated that
they were ready to proceed. The circuit court then asked
petitioner if he wished to proceed to trial, as scheduled.
Petitioner repeatedly affirmed that he did not want a
continuance; however, he alleged that Mr. Yanni's
assistance was not effective.
September 14, 2015, hearing the day before trial, petitioner
asked the court to appoint new counsel; however, he
repeatedly avowed that he did not want to "waive his
speedy trial rights" or to represent himself at trial.
The circuit court allowed petitioner to speak at some length
regarding his motion for new counsel. The circuit court then
denied petitioner's motion and found that petitioner
refused a continuance of his trial, and that Mr. Yanni would
remain as petitioner's trial counsel. The circuit court
also found that all four lawyers who had represented
petitioner were competent members of the West Virginia State
trial commenced on September 15, 2015. The State called three
witnesses, all of whom were members of the West Virginia
State Police's Internet Crimes Against Children Task
Force. The State first called Sgt. David C. Eldridge, who was
qualified as an expert in the investigation of internet child
pornography and peer-to-peer file-sharing
networks. Sgt. Eldridge testified that he discovered
a certain internet protocol ("IP") address had
obtained numerous child pornography "files" via the
use of peer-to-peer networks. Sgt. Eldridge also testified
that the IP address associated with these files belonged to
W.R. Garrett testified next. Cpl. Garrett was qualified as an
expert in the investigation of child pornography, general
internet-based investigations, and data recovery and
acquisition. Cpl. Garrett testified that he executed a search
warrant on petitioner's home and retrieved various
computers, hard drives, and other related materials. Cpl.
Garrett testified that petitioner arrived at home during the
search. Petitioner stated he was aware of his right to remain
silent. Petitioner then admitted that he had downloaded child
pornography onto his laptop computer using peer-to-peer
networks; that he accessed the internet through a wireless
connection, which was password protected; and that he was the
only person who knew the password. Petitioner also claimed
that, in some cultures, child pornography is "perfectly
legal, " but Western culture does not view it that way.
Finally, petitioner admitted to Cpl. Garrett that he knew
child pornography was illegal.
Garrett then testified to the contents of a
three-and-one-half minute video found on one of
petitioner's hard drives. In the video, "daddy,
" an adult male, digitally penetrates and has
intercourse with a female child who appears to between the
ages of four and seven. The video also shows the child
performing oral sex on "daddy" and the man
ejaculating on the child's face. The child was apparently
"groomed" for sexual contact because, during these
events, she says, "You can do whatever you want,
daddy." The State then published the video to the jury.
Cpl. Garrett's testimony, petitioner-in the presence of
the jury-orally moved the court to discharge Mr. Yanni on the
ground of "gross incompetence and ineffective assistance
of counsel." The circuit court recessed the jury, took
up petitioner's motion, and denied it. The court then
returned the jury to the courtroom and instructed them to
ignore petitioner's motion to discharge Mr. Yanni.
the State qualified Sgt. David E. Boober as an expert in
forensic computer analysis, data recovery and acquisition,
internet-based investigations, and investigations of child
pornography. Sgt. Boober testified regarding his forensic
search of petitioner's computers and hard drives. Sgt.
Boober also testified that the hard drive containing the
video described above by Cpl. Garrett also contained 249
other child pornographic video files and 497 child
pornographic image files.
did not testify and petitioner's trial counsel did not