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State v. Johnson

Supreme Court of West Virginia

September 1, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Donald A. Johnson, Defendant Below, Petitioner

         Randolph County 15-F-53

          MEMORANDUM DECISION

         Petitioner Donald A. Johnson, by counsel Rebecca A. Judy, appeals the Sentencing Order entered by the Circuit Court of Randolph County on May 5, 2016, following petitioner's convictions of two counts of soliciting a minor via computer, one count of distribution and display of obscene matter to a minor, one count of use of obscene matter with the intent to seduce a minor, and one count of possession of material depicting a minor engaged in sexually explicit conduct. Respondent State of West Virginia, by counsel Nic Dalton, filed a response. Petitioner filed a reply.

         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.

         Factual and Procedural Background

         In June of 2015, petitioner was indicted on two counts of soliciting a minor via computer in violation of West Virginia Code § 61-3C-14(b) (Counts 1 and 2); one count of distribution and display of obscene matter to a minor, in violation of West Virginia Code § 61-8A-2(a) (Count 3); one count of use of obscene matter with intent to seduce a minor, in violation of West Virginia Code § 61-8A-4 (Count 4); one count of possession of material depicting a minor engaged in sexually explicit conduct, in violation of West Virginia Code § 61-8C-3 (Count 5); and thirteen counts of attempted possession of material depicting a minor engaged in sexually explicit conduct.[1] At the time of the offenses, petitioner was employed as a high school librarian in Randolph County. The victim in Counts 1 through 4 was S.M., [2] who was a fifteen-year-old female student at the high school where petitioner was employed.

         The matter proceeded to a jury trial in November of 2015. The State's evidence at trial came mainly from S.M.'s testimony, material discovered on petitioner's computer, and petitioner's journal seized by police pursuant to a search warrant. The evidence revealed that the relationship between petitioner and S.M. began with the two being friends. S.M. testified that she and petitioner communicated via text messaging until her mother called petitioner using S.M.'s phone and advised him that it was inappropriate for school personnel to have such a relationship with a student. S.M. testified that petitioner then encouraged her to install an application on her device that would enable them to text each other without using a phone and would delete the text messages after a period of time. S.M. could not recall the name of the application, and the police did not discover such an application on S.M.'s or petitioner's phone.

         Petitioner's communication with S.M. eventually became sexual. Petitioner indicated a desire to marry S.M.; asked S.M. about her sexual history; indicated a desire to have sex with her; requested oral sex; and referred to S.M. as "slut, " "whore, " and "Lolita." S.M. testified that petitioner eventually sent her ten to twenty pictures of his penis and videos of him masturbating. He requested that she send him pictures of herself, and she complied by sending pictures of her nude breasts, buttocks, and vagina. According to S.M., these texts were sent between about October of 2013 and January of 2014. The State did not produce the text messages as evidence, but rather, relied on S.M.'s testimony in this regard.

         The board of education ultimately learned of the alleged relationship between petitioner and S.M. and conducted an investigation. The investigation revealed e-mails on petitioner's work computer which evidenced petitioner's consultation with a psychic advisor named Jackie Tomlin about his relationship with S.M. The circuit court allowed the State to introduce the e-mails over petitioner's objection.[3] In the e-mails, petitioner referred to S.M. and her boyfriend by name and described a girl who "came into [his] life" and with whom there was "an age difference between [petitioner and the girl]." Petitioner also referred to an occasion when S.M. tried to encourage a blind date between her aunt and petitioner, which had happened around the Summer of 2013. Additionally, in one of the e-mails to Ms. Tomlim, petitioner stated as follows: "I'm facing a possible situation at work that may cost me my job. I haven't hurt anybody. I haven't broken any laws, however my ethics and morality may be called into question. My actions were inappropriate."

         The circuit court also permitted the admission of a journal kept by petitioner that was seized by police pursuant to a search warrant. Petitioner wrote the following:

Your texts scare me knowing you want it all back except for the intimate part. Yet once you texted me during the beginning of the end that you needed to learn how to be intimate with me, maybe that is now. You were, and are, a girl, and I was trying to make you a woman. And I do want it, all of it, with you, only with you. I'd wait forever for you.

         Petitioner also wrote, "The woman I love finally approached me. . . . She's so beautiful. And if Jackie is right, which I pray is true, all will work out." The State sought to introduce entries from this journal and petitioner objected on the ground that the entries were not relevant. The circuit court ultimately allowed the State to introduce the above-referenced entries.

         Also prior to trial, with respect to Count 5, petitioner disclosed a potential expert witness, Jennifer Parker, a West Virginia-licensed physician's assistant, to testify about the age of the nude females found in pictures on an external hard drive recovered from petitioner's home. The State filed a motion in limine to preclude such testimony on the ground that Ms. Parker was not qualified. The circuit court granted the State's motion, noting that a physician assistant is not qualified to determine the age of an individual on the basis of a photograph.

         At the conclusion of the evidence, petitioner was found guilty of the first five counts in the indictment as described above. Petitioner filed post-trial motions requesting reversal of his convictions on Counts 1 through 4 or, in the alternative, a new trial, on the ground that (1) the evidence did not support his conviction because there was no evidence of a surreptitious texting application as testified to by S.M. and (2) that the circuit court erred in admitting the journal entries and petitioner's e-mails to Ms. Tomlin. Petitioner further requested a new trial on Count 5 on the ground that the circuit court improperly suppressed the testimony of Ms. Parker. The circuit court denied petitioner's motions by order entered on January 5, 2016.

         By order entered on May 5, 2016, the circuit court sentenced petitioner to serve two concurrent terms of two to ten years in prison for the two counts of soliciting a minor via computer; a determinate sentence of three years, consecutive to the former terms, for his conviction of distribution and display to a minor of obscene matter; a determinate term of two years, consecutive to the former terms, of home confinement for his conviction of use of obscene matter with intent to seduce a minor; and a determinate term of two years in prison, consecutive to the former terms, but suspended the two years of incarceration in lieu of five years of supervised probation, for his conviction of possession of material depicting a minor engaged in sexually explicit conduct. ...


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