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State v. Halburn

Supreme Court of West Virginia

April 15, 2019

State of West Virginia, Plaintiff Below, Respondent
Mark Halburn, Defendant Below, Respondent

          Putnam County 17-MAP-16


         Petitioner Mark Halburn, by counsel Christopher S. Butch, appeals the March 15, 2018, order of the Circuit Court of Putnam County that denied his motion to dismiss his misdemeanor conviction for violating a personal safety order. The State of West Virginia, by counsel Caleb A. Ellis, filed a response in support of the circuit court's order. On appeal, petitioner argues that the trial court erred in ruling that he failed to authenticate a proposed trial exhibit, and in denying his pre-trial, pro se "Emergency Motion for Immediate Dismissal."

         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 2016, Dr. Joseph H. Matusic, Jr., sought a personal safety order against petitioner in accordance with chapter 53, article 8 of the West Virginia Code. The Cabell County Magistrate Court held a hearing on the matter and granted Dr. Matusic a personal safety order that was effective through February 25, 2018. The order prohibited petitioner from having any contact with Dr. Matusic and from entering Dr. Matusic's residence or property. The order clearly listed Dr. Matusic's address as "2099 [X] Street, "[1] in Hurricane. Petitioner appealed the magistrate court's order to the circuit court, which denied relief.

         Thereafter, on March 12, 2017, a brush fire occurred on Dr. Matusic's [X] Street property that damaged his barn. That same day, a reporter interviewed Dr. Matusic, took pictures of the scene, and reported on the fire. The next day, March 13, 2017, Dr. Matusic saw a car coming up his half-mile-long driveway. Dr. Matusic approached the car and realized petitioner was behind the wheel. Dr. Matusic told petitioner to leave his property, took pictures of petitioner's car on his property, and called 9-1-1 to report the encounter. Cpl. Shawn Johnson of the Putnam County Sheriff's Department responded, took the complaint, and viewed Dr. Matusic's photographs. Thereafter, Cpl. Johnson prepared a criminal complaint alleging that petitioner violated Dr. Matusic's personal safety order, a misdemeanor crime under West Virginia Code § 53-8-11. A Putnam County magistrate found probable cause to charge petitioner and issued a warrant for his arrest.

         Following his arrest, petitioner retained counsel and sought a jury trial in magistrate court. Petitioner also filed a pro se "Emergency Petition for Immediate Dismissal" that claimed the State violated (1) his First Amendment rights as a journalist and as the owner/operator of ""; and (2) his Fourteenth Amendment rights because the police failed to interview him or investigate the case before seeking a warrant for his arrest. The magistrate court denied the emergency petition.

         At petitioner's August 31, 2017, jury trial, the State called Dr. Matusic who testified that he resided at 2099 [X] Street in Hurricane and that his mailbox, located at the nexus of his driveway and [X] Street, displayed the number "2099." Dr. Matusic stated those numbers were large and made of reflective material. Through Dr. Matusic, the State entered the photographs he took on March 13, 2017. One of those photographs displayed a sign along Dr. Matusic's driveway that read "Posted: Private Property . . . trespassing for any purpose is strictly forbidden. Violators will be prosecuted." Dr. Matusic testified that this same sign is located in three different spots along his lengthy driveway, and that he posted the first of the signs at the beginning of the driveway, just off [X] Street. The next photograph showed petitioner sitting in his car on Dr. Matusic's property. Dr. Matusic testified that he took this picture within sixty feet of his house and past all of the "Private Property" signs along the driveway. He further testified that he told petitioner to leave the property and then called 911. Following Dr. Matusic's testimony, the State rested its case.

         Petitioner's first witness was Cpl. Johnson, the officer who prepared the criminal complaint alleging petitioner violated Dr. Matusic's personal safety order. Through Cpl. Johnson, petitioner's counsel attempted to enter a "screenshot"[2] purportedly taken from Channel 13 News's website, "" The alleged screenshot depicts a brief article allegedly published on March 12, 2017, by "Joseph Fitzwater, Assignment Editor" regarding a "large brush fire" on the "300 block of [X] Street in Hurricane." The State objected to the admission of the screenshot because petitioner failed to lay a proper foundation. Petitioner's counsel admitted that no one from the news station was in court to authenticate the screenshot. Although the magistrate never sustained the State's objection, petitioner's counsel moved onto other topics. Following Cpl. Johnson's testimony, petitioner asked for a continuance so he could attempt to obtain another screenshot of the Channel 13 News's website. The magistrate court denied that motion and said it would not grant a continuance in the middle of trial.

         Petitioner then testified on his own behalf. Petitioner stated that (1) he runs a news website; (2) he read about the March 12, 2017, brush fire on Channel 13 News's website; (3) he called the fire chief to verify the address of the fire, and someone at the Fire Department verified a "300 [X] Street" address; (4) he got lost looking for that address; (5) he turned onto what he believed was a side street; (6) he did not see a mailbox with the number "2099" on it or any "Private Property" signs; (7) he realized he was on Dr. Matusic's property and immediately left the scene; and (8) he did not intend to violate Dr. Matusic's personal safety order.

         The jury found petitioner guilty of violating Dr. Matusic's personal safety order. On October 12, 2017, the magistrate court sentenced petitioner to ninety days in jail. However, the magistrate suspended the sentence in lieu of two years of unsupervised probation. The magistrate also assessed $1, 182.70 in costs against petitioner.

         Petitioner appealed his conviction to the circuit court. Thereafter, petitioner filed a motion to dismiss his appeal under West Virginia Code § 50-5-13(c)(6) ("The review by the [circuit] court and a decision on appeal shall be complete within ninety days after the appeal is regularly placed upon the docket of the circuit court."). Following a hearing, the circuit court entered its May 25, 2018, "Order Denying Motion to Dismiss and Denying Appeal." With regard to the motion to dismiss, the circuit court found (1) the case was assigned to it on March 7, 2018, and less than ninety days had passed since that date; and, (2) although more than ninety days had passed since petitioner filed the appeal, any delay was due to the recusal of the judge initially assigned to the case. Accordingly, the circuit court concluded that any delay beyond ninety days was reasonable and excusable. The circuit court also noted that if it dismissed petitioner's appeal, the ruling he was appealing would remain in effect.

         As for petitioner's appeal of the jury's verdict, the circuit court found petitioner's claim - that the magistrate court should not have granted Dr. Matusic a personal safety order - was previously appealed and denied. The circuit court also found that the magistrate court did not err when it denied petitioner's attempt to admit into evidence the "screenshot" allegedly taken from Channel 13 News's website because petitioner failed to lay a foundation for, or properly authenticate, the screenshot and the screenshot was not self-authenticating. Third, the circuit court found the magistrate court did not err in denying petitioner's pretrial motion to dismiss his case on Fourteenth Amendment grounds because, under Rule 4(a) of the West Virginia Rules of Criminal Procedure for Magistrate Courts, the complaint showed the existence of "probable cause to believe that an offense had been committed and that the defendant had committed it." Further, under Rule 4(b) of those same rules, "probable cause may be based upon hearsay evidence in whole or part."

         Petitioner now appeals the circuit court's May 25, 2018, "Order Denying Motion to Dismiss and Denying Appeal." Petitioner raises two assignments of error. He first argues that the circuit court abused its discretion in finding the magistrate court did not err when it refused to allow petitioner to admit at trial the alleged "screenshot" of Channel 13 News's website on the ground that petitioner failed to lay a foundation for, or properly authenticate, the screenshot. Petitioner claims the screenshot was relevant because it showed the fire he was investigating occurred at "300 [X] Street" in Hurricane.

         Petitioner first notes he testified on the record that he printed the screenshot from Channel 13 News's website and that the screenshot showed the name of "Joseph Fitzwater" who he asserts is Channel 13's News's "assignment editor." Petitioner cites to Rule 901(b)(1) of the West Virginia Rules of Evidence for the proposition that a "witness with knowledge" can lawfully testify "that an item is what it is claimed to be" and thereby authenticate the item. Petitioner also argues that the screenshot had distinctive characteristics, such as its "appearance, contents, substance, internal patterns, or other distinctive characteristics . . ., [that] taken together with the all the circumstances[]" authenticated that screenshot. See id. 901(b)(4). Specifically, petitioner notes that the screenshot includes the date and address of the fire and the name of the assignment editor. Petitioner concedes that the screenshot did not ...

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