Submitted: May 14, 2019
Certified Question from the Circuit Court of Marshall County
The Honorable David W. Hummel, Jr., Judge Case No. 17-F-83
L. Wade, Esq. Eric M. Gordon, Esq. Andrea C. Poling, Esq.
Marshall County Prosecuting Attorney's Office
Moundsville, West Virginia
Patrick Morrissey, Esq. Attorney General Lindsay S. See, Esq.
Solicitor General Charleston, West Virginia Counsel for the
L. Neiswonger, Esq. Neiswonger & White Moundsville, West
Virginia Counsel for Respondent
a certified question is not framed so that this Court is able
to fully address the law which is involved in the question,
then this Court retains the power to reformulate questions
certified to it under both the Uniform Certification of
Questions of Law Act found in W.Va.Code, 51-1A-1,
et seq. and W.Va.Code, 58-5-2 , the
statute relating to certified questions from a circuit court
of this State to this Court. Syl. Pt. 3, Kincaid v.
Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993)."
Syllabus Point 2, Pyles v. Mason County Fair, Inc.,
239 W.Va. 882');">239 W.Va. 882, 806 S.E.2d 806 (2017).
"The appellate standard of review of questions of law
answered and certified by a circuit court is de
novo." Syllabus Point 1, Gallapoo v. Wal-Mart
Stores, Inc., 197 W.Va. 172');">197 W.Va. 172, 475 S.E.2d 172 (1996).
Images of minors engaged in sexually explicit conduct found
in temporary Internet cache files on a defendant's
computer are contraband in a prosecution for a violation of
West Virginia Code § 61-8C-3(a) (2014) on a theory of
constructive possession, where the State's evidence
proves beyond a reasonable doubt that the defendant knew of
the cached images and exercised dominion and control over
them. If the State cannot prove beyond a reasonable doubt
that the defendant knew of the cached images and exercised
dominion and control over them, the cached images are still
circumstantial evidence that the State may use to prove that
the defendant violated West Virginia Code § 61-8C-3(a).
case we consider a certified question concerning West
Virginia Code § 61-8C-3 (2014) and child pornography
found in the cache files of a defendant's laptop
computer. Respondent Daniel Beck (Beck) is charged with one
count of violating § 61-8C-3. By order entered October
19, 2018, the circuit court certified the following question
to this Court:
Is possession of a laptop computer containing cache files
that relate to material visually portraying a minor
and/or minors engaged in sexually explicit conduct, without
evidence of when or where said cache files were created
and/or accessed enough to establish the defendant knowingly
and intentionally possessed the material contained on said
cache files in violation within the meaning [sic] of West
Virginia [C]ode §[ ]61-8C-3(a)?
circuit court answered this question, "No."
State acknowledges, the thrust of that question is
"whether the evidence in this case is sufficient to
sustain a conviction for possession of material depicting
minors engaged in sexually explicit conduct" under
§ 61-8C-3(a). We decline to respond to that question,
though, because our answer would be an impermissible advisory
opinion that depends on disputed questions of material
fact-namely the state of mind of the defendant.
there is a legal issue in the question certified by the
circuit court that can be addressed at this point in the
proceedings against Beck. We have held that it is appropriate
to reformulate a certified question when it
is not framed so that this Court is able to fully address the
law which is involved in the question, then this Court
retains the power to reformulate questions certified to it
under both the Uniform Certification of Questions of Law Act
found in W.Va.Code, 51-1A-1, et seq. and
W.Va.Code, 58-5-2 , the statute relating to
certified questions from a circuit court of this State to
this Court. Syllabus Point 3, Kincaid v. Mangum, 189
W.Va. 404, 432 S.E.2d 74 (1993).
the authority granted to this Court by West Virginia Code
§ 58-5-2 (2012), we reformulate the circuit court's
certified question as follows:
May a jury consider images of a minor engaged in sexually
explicit conduct, contained in the temporary Internet cache
files on a defendant's computer, as evidence of a
violation of West Virginia Code § 61-8C-3(a). Answer:
Case Background and Procedural Posture
November 14, 2017, a grand jury returned a one-count
indictment that charged Beck with violating West Virginia
Code § 61-8C-3(a) and -3(b) (2014). The indictment
alleged that on or about February 23, 2017, Beck knowingly
possessed fifteen images or files on his computer and that
those images visually portrayed minor children engaged in
sexually explicit conduct.
18, 2018, the parties filed a joint motion to certify a
question to this Court addressing the issue of cache files.
Prior to certifying the question, the circuit court held a
hearing to hear testimony about cache files from a State
witness, Matthew Adams (Adams). Adams is an investigator for
the Ohio County Prosecuting Attorney's Office, and, for
purposes of the hearing, Beck stipulated that Adams is expert
in cyber-investigation and recovery and acquisition of
computer data. Adams testified about the characteristics of
cache files and their contents. He explained that a computer
user does not intentionally download information, including
images, from the Internet to cache files. Instead, a
computer's web browser automatically downloads
information to the computer's cache files when the user
views a website that displays images. The browser does this
to enable a computer user to access that website more quickly
in the future. In other words, the information contained in
the cache files enables the user to return to a website
without having to download the entire site again.
explained that while a user has the ability to delete cache
files from his computer, the user does not intentionally
create the files, in contrast to images that he downloads and
intentionally saves to his computer:
Circuit court: So a download of a file is different than a
cache of a picture?
Adams: Yes, sir. The way we're speaking about it today,
Circuit court: But a cache would indicate that that website
or that particular picture was viewed or this computer
connected with some computer that had that image and it shows
that in this example his computer accessed that file?
Adams: Yes, sir. That's correct.
Circuit court: If he manually or with purpose saved it to the
computer, you can tell that?
Adams: Yes, sir.
Circuit court: As a download ...