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State v. Blake

Supreme Court of West Virginia

January 14, 2019

State of West Virginia, Petitioner Below, Respondent
v.
Robert Blake, Defendant Below, Petitioner

          Morgan County 16-F-47

          MEMORANDUM DECISION

         Petitioner Robert Blake, by counsel Ben J. Crawley-Woods, appeals his conviction of one count of possession of child pornography and four counts of second offense failure to register as a sex offender. Respondent State of West Virginia, by counsel Gordon L. Mowen, and Zachary Aaron Viglianco filed a response, to which petitioner did not 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In 2016, the West Virginia State Police ("WVSP") received a tip from Twitter that a file containing child pornography was being uploaded to their servers. The WVSP tracked the IP address of that Twitter account, which led them to the residence of petitioner, who is a registered sex offender. Based upon this information the WVSP then applied for a search warrant for the premises and presented the warrant to the Morgan County magistrate who found probable cause. The WVSP then executed the search warrant.

         Petitioner arrived home during the search, and upon his arrival, Trooper Garrett of the WVSP informed petitioner that if he gave a statement, it would be non-custodial, and that petitioner was free to leave. He then obtained a recorded interview of petitioner, who denied using the internet, denied knowledge of Twitter, and denied using the suspected e-mail addresses. Trooper Garrett also spoke with another resident of the home who denied using the suspected e-mail addresses. Trooper Garrett then returned to petitioner, and asked him for his identification. In response, petitioner handed his wallet to Trooper Garrett. There was a piece of paper next to petitioner's driver's license in his wallet. Trooper Garrett opened the paper to view its contents, which contained a list of e-mail addresses, one of which matched the address identified by Twitter.

         Petitioner acknowledged that he owned the e-mail addresses and the Twitter account associated with the pornography files. Petitioner further advised Trooper Garrett that he used a laptop to access the internet, but stored the laptop at a different residence. Trooper Garrett transported petitioner to the other residence to retrieve the laptop, and then transported petitioner back to his own home. Officers found child pornography on the seized laptop. Petitioner was not arrested at that time, and was later indicted during the Spring of 2016 Term of Court for one count of possession of child pornography and four counts of failure to register as a sex offender related to his e-mail address, Twitter, and Skype accounts.[1]

         Petitioner filed pre-trial motions to suppress the seized property and any statements prior to trial, arguing that the search warrant was invalid, because the warrant was not signed on two particular pages, and that petitioner's statements were made in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The circuit court denied the motion to suppress, finding that the magistrate's failure to sign each of the search warrant pages was immaterial, because the warrant was signed elsewhere, that petitioner's statements made to law enforcement were voluntary, and that the list of e-mail addresses was properly seized, as petitioner consented to a search of his wallet.

         Petitioner's trial began on April 12, 2017, and the State presented the testimony of Trooper Garrett, who testified as to his investigation, the seizure of the computer and paper containing e-mail addresses, and petitioner's statements admitting ownership of the e-mail address and the computer. Trooper Garrett acknowledged that petitioner did not admit to using Skype but admitted to searching the term "barely legal" because he thought it meant that the subjects of the pictures were of legal age. The State also introduced the testimony of Sgt. David Boober, who testified that he examined another computer where he discovered the same e-mail address found in petitioner's wallet. At the close of state's evidence, petitioner moved for judgment of acquittal, arguing that he did not admit to using the Skype accounts, and that the State had not proven that petitioner knowingly possessed child pornography. The circuit court denied the motion.

         Petitioner called Linda Fox, who testified that she lived with petitioner and his roommate, that petitioner's roommate was on the computer all day and very familiar with computers, and that the roommate wanted petitioner to move out. Petitioner did not testify on his own behalf. At the close of evidence, petitioner renewed his motion for judgment of acquittal. Following argument and deliberations, the jury found petitioner guilty of one count of possession of child pornography, and three counts of failure to update the sex offender registration regarding his email address, Twitter, and Skype accounts. Petitioner was sentenced on August 30, 2017. The circuit court sentenced petitioner to a term of two to ten years of incarceration for his conviction of possession of child pornography, and to a term of ten to twenty years of incarceration for each count of second offense failure to register as a sex offender, for an aggregate sentence of thirty-two to seventy-five years in prison. Petitioner now appeals his conviction and sentence.

         Petitioner asserts four assignments of error on appeal. Petitioner complains that the circuit court erred in failing to suppress property seized pursuant to the warrant, which petitioner contends was unlawful. Petitioner asserts further that the circuit court erred in failing to suppress his statements to law enforcement, erred in denying his motion for judgment of acquittal, and erred in considering an impermissible factor in sentencing petitioner. We have held that,

[i]n reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error 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. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). With this standard in mind we consider petitioner's assignments of error.

         Petitioner first alleges that the circuit court erred in failing to suppress property seized pursuant to a search warrant, including the piece of paper from petitioner's wallet that contained his e-mail address. Petitioner argues that the search warrant obtained by law enforcement is invalid because it was not signed on the "property to be seized" page, or the "premises to be searched" page. Petitioner asserts that in order for a warrant to be valid, both pages must be signed by a magistrate. In reviewing a ruling on a motion to suppress,

". . ., an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are ...

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