State v. Baldwin, 110419 WVSC, 18-0834

Docket Nº:18-0834
Party Name:State of West Virginia, Plaintiff Below, Respondent v. Robert Frank Baldwin, Defendant Below, Petitioner
Judge Panel:CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice Margaret L. Workman Justice Tim Armstead Justice Evan H. Jenkins Justice John A. Hutchison
Case Date:November 04, 2019
Court:Supreme Court of Appeals of West Virginia

State of West Virginia, Plaintiff Below, Respondent

v.

Robert Frank Baldwin, Defendant Below, Petitioner

No. 18-0834

Supreme Court of Appeals of West Virginia

November 4, 2019

(Ohio County 18-F-45)

MEMORANDUM DECISION

Petitioner Robert Frank Baldwin, by counsel Justin M. Collin, appeals the Circuit Court of Ohio County's August 31, 2018, sentencing order following his conviction for failure to register as a sex offender. The State, by counsel Elizabeth Grant, filed a response.

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.

On May 14, 2018, petitioner was indicted on two counts of failure to register as a sex offender. In Count One, petitioner was charged with knowingly failing to register his Facebook account on May 8, 2017, and in Count Two, he was charged with failing to register his employment termination on July 17, 2017. Petitioner waived his right to a jury trial, and the circuit court held a bench trial on July 11, 2018.

The State's evidence at trial included criminal records documenting a June 16, 1994, conviction obtained against petitioner in Pennsylvania for, among other crimes, attempted rape.1This conviction required petitioner to register as a sex offender, and, following his move to this State, he completed his initial registration on February 13, 2017. On that same date, petitioner signed a "Notification of Sex Offender Responsibility and Registration Certification" ("Form 270"), which was admitted into evidence. West Virginia State Police Sergeant Ron Gaskins testified that Form 270 "basically lists the rules [that sex offenders] have to abide [by to be] compliant with state law during the course of their registration."2 Among other pieces of information, Form 270 informs a registrant that he or she "must register as a Sex Offender with the West Virginia State Police Detachment in the following manner: . . . - register any change in registration information, including but not limited to: physical and mailing address, vehicle, internet, phone, screen names, e-mail, etc. within ten (10) business days." Form 270 further provides that "[f]ailure to comply with these responsibilities as defined here as well as failure to comply with West Virginia Code § 15-12, et seq. are criminal violations of West Virginia [l]aw, for which I may be criminally prosecuted." In addition to signing this form, petitioner initialed each discrete notice, including the one quoted above regarding registering any change in registration information.

Following his initial registration, petitioner updated his registration information on March 24, 2017, and April 24, 2017. At each update, petitioner signed and initialed another Form 270, and each of these was admitted into evidence.

Sergeant Gaskins further detailed that on November 3, 2017, petitioner reported to the Wheeling, West Virginia, State Police Detachment to comply with his annual sex offender registration requirements.3 In assisting with petitioner's annual registration, Sergeant Gaskins asked petitioner if all of the information he had previously provided remained the same, and petitioner responded, "Yes." Sergeant Gaskins then inquired about social media accounts, such as Facebook. According to Sergeant Gaskins, petitioner replied that "he had Facebook and he had forgot about social media." Petitioner told Sergeant Gaskins that he had not had his Facebook account for "very long."

After petitioner completed his annual registration, Sergeant Gaskins investigated petitioner's Facebook account and learned that the profile picture had been updated on April 29, 2017.The updated picture was of petitioner wearing a hardhat containing the name of his then-employer. The most recent activity on the account took place on October 19, 2017.

On December 8, 2017, petitioner returned to the Wheeling State Police Detachment to again update his registration information. While at the detachment, Sergeant Gaskins inquired further into petitioner's Facebook account, including when he activated the account. Petitioner stated that an ex-girlfriend created the account to track petitioner, but he later admitted to having access to the account, and later yet, to personally updating the account, including updating his profile picture on April 29, 2017.

Sergeant Gaskins also testified to a telephone conversation he had with petitioner on December 21, 2017, regarding how petitioner learned of the account, since petitioner had denied creating it. Petitioner claimed that an individual told him that he had sent him a message on Facebook. Petitioner then looked for and ultimately found an account bearing his name. Petitioner further claimed that he was unable to access the account at that time because he did not know the password to the account, so he initiated the process for resetting the password. But petitioner also informed Sergeant Gaskins that the e-mail address associated with the account was the same one first provided during his November of 2017 annual registration.4

On July 26, 2018, the circuit court entered an order finding petitioner guilty of the count of failure to register as a sex offender pertaining to his Facebook account. At the August 28, 2018, sentencing hearing, petitioner was sentenced to not less than one nor more than five years of incarceration. This appeal followed.

On appeal, petitioner argues that the evidence at trial was insufficient to support his conviction. Specifically, petitioner first claims that Form 270 was insufficient notification of the requirement to register internet and social media accounts, such as Facebook, because it only instructed, in relevant part, that he register "physical and mailing address, vehicle, internet, phone, screen names, e-mail, etc. within ten (10) business days."5 Registrants, however, are statutorily obligated to provide "[i]nformation relating...

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