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State v. Beck

Supreme Court of West Virginia

June 6, 2019

STATE OF WEST VIRGINIA, Plaintiff below, Petitioner
v.
DANIEL BECK, Defendant below, Respondent

          Submitted: May 14, 2019

          A Certified Question from the Circuit Court of Marshall County The Honorable David W. Hummel, Jr., Judge Case No. 17-F-83

          Rhonda 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 Petitioner

          Kevin L. Neiswonger, Esq. Neiswonger & White Moundsville, West Virginia Counsel for Respondent

         SYLLABUS

         1."When 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 [1967], 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).

         2. "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).

         3. 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).

          OPINION

          WALKER CHIEF JUSTICE.

         In this 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)?[1]

         The circuit court answered this question, "No."

         As the 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.[2]

         Nevertheless, 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 [1967], 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).[3]

         Under 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: Yes.

         I. Case Background and Procedural Posture

         On 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.[4]

         On May 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.

         Adams 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,
yes, sir.
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 ...

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