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
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.
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,
" in Hurricane. Petitioner appealed the
magistrate court's order to the circuit court, which
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
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
"PutnamNews.com"; 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.
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.
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" purportedly taken from Channel 13
News's website, "www.WOWKTV.com." 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.
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.
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.
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.
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
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
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 ...