State v. Benny W.

• Citation: 837 S.E.2d 679
• Decision Date: 18 October 2019
• Docket Number: No. 18-0349,18-0349
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Respondent v. BENNY W., Petitioner

837 S.E.2d 679

STATE of West Virginia, Respondent

v.BENNY W., Petitioner

No. 18-0349

Supreme Court of Appeals of West Virginia.

Submitted: October 1, 2019

Filed: October 18, 2019

Kyle G. Lusk, Esq., Matthew A. Bradford, Esq., Brandon L. Gray, Esq., Lusk & Bradford, PLLC, Beckley, West Virginia, Attorneys for Petitioner

Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent

HUTCHISON, JUSTICE:

This appeal was brought by Benny W. (hereinafter "Petitioner") from the April 4, 2018, order of the Circuit Court of Ritchie County sentencing him to a total of 131 to 295 years in prison.¹ Petitioner was convicted by a jury of six counts of sexual assault in the second degree, seven counts of sexual abuse by a custodian, and one count of sexual abuse in the first degree. In this appeal, Petitioner set out nine of assignments of error and asks this Court to reverse his convictions and sentences and award him a new trial. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

This case involves the sexual assault of two female juveniles, H.A. and J.L., by the Petitioner.² H.A. and J.L. were friends with Petitioner’s juvenile daughter, A.W. During the period of June to July of 2016, H.A. alleged that she was sexually assaulted by the Petitioner on five occasions while she was at his home visiting A.W., J.L. alleged that she was sexually assaulted by the Petitioner on one occasion during the same time period.

The first time that Petitioner sexually assaulted H.A. at his home, A.W. approached H.A. and informed her that Petitioner wanted to have sex with her.³ According to H.A., A.W. took her into Petitioner’s bedroom, which was dark, and left her there.⁴ Petitioner, who apparently was already in the bedroom, took off H.A.’s pants and penetrated her vagina with his hand and penis.⁵ H.A. visited A.W. on four more occasions and during each visit the Petitioner sexually assaulted her. When the third sexual assault of H.A. took place, J.L. was also visiting the home. H.A. alleged that during this visit A.W. told her and J.L. that the Petitioner wanted to see them. A.W. escorted both girls into Petitioner’s bedroom and left. Both girls got on Petitioner’s bed and he sexually assaulted them. J.L. was sexually assaulted first. The Petitioner penetrated J.L.’s vagina with his fingers. J.L. left the room after being sexually assaulted in that manner. After J.L. left the room, Petitioner sexually assaulted H.A. by penetrating her with his penis.

In the fall of 2016, H.A. reported to a high school counselor that she was sexually assaulted multiple times by Petitioner. The high school counselor reported the incident to the county prosecutor. A police investigation followed, during which it was learned that the Petitioner also sexually assaulted J.L. Subsequent to the investigation, a grand jury returned a twenty-four count indictment against the Petitioner on January 23, 2017.

The case was tried before a jury over two days, beginning on December 4, 2017. During the trial the State presented testimony from the victims, H.A. and J.L.⁶ Both victims testified to being sexually assaulted by the Petitioner. The State also called the Petitioner’s daughter, A.W. During the trial A.W. testified that on two occasions she told H.A. that Petitioner wanted to have sex with her. A.W. also identified Facebook text messages she had with Petitioner, in which Petitioner appears to be asking her to tell H.A. or J.L. to come over to have sex with him. At the close of the State’s case-in-chief the circuit court granted a motion by Petitioner to dismiss two of the counts on insufficient evidence.

The Petitioner testified during his case-in-chief and denied having any sexual contact with the victims.⁷ The jury ultimately found the Petitioner guilty of fourteen counts of the indictment and not guilty of eight counts.⁸ This appeal followed.

II.STANDARD OF REVIEW

The Petitioner has set out nine assignments of error that have different review standards. Consequently, we will set out the standard of review for each issue as it is addressed below. See State v. Boyd , 238 W. Va. 420, 428, 796 S.E.2d 207, 215 (2017) ("We will dispense with our usual standard of review section because each of the assignments of error has its own review criteria."); State v. Dunn , 237 W. Va. 155, 158, 786 S.E.2d 174, 177 (2016) ("Therefore, we dispense with setting out a general standard of review. Specific standards of review will be discussed separately as we address each assignment of error.").

III.DISCUSSION

A.Authentication of Facebook Messenger Text Messages

The first two assignments of error by the Petitioner are overlapping, insofar as they both require this Court to determine whether the circuit court committed error in finding the State properly authenticated its only exhibit, Facebook Messenger text messages. Consequently, we will combine the two assignments of error and address the issues raised together.⁹ The State contends that the text messages exhibit was authenticated by A.W. and properly admitted into evidence.¹⁰

We have held that "[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 10, State v. Huffman , 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell , 192 W. Va. 435, 452 S.E.2d 893 (1994). With respect to a trial court’s ruling on authentication of evidence, this Court has held that "[a] trial court’s ruling on authenticity of evidence under Rule 901(a) of the West Virginia Rules of Evidence will not be disturbed on appeal unless there has been an abuse of discretion." Syl. pt. 12, State v. Boyd , 238 W. Va. 420, 796 S.E.2d 207 (2017). See Syl. pt. 3, State ex rel. Smith v. McBride , 224 W. Va. 196, 681 S.E.2d 81 (2009) ("A trial judge’s ruling on authenticity will not be disturbed on appeal unless there has been an abuse of discretion.").

It is provided under our rules of evidence that "[t]o satisfy the requirement of authenticating ... an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." W. Va. R. Evid. 901(a). We have recognized that "the standard of admissibility under Rule 901(a) is rather slight, i.e., is the evidence sufficient ‘to support a finding’ that the object is authentic." State v. Boyd , 238 W. Va. 420, 443, 796 S.E.2d 207, 230 (2017) (citation omitted). Courts have acknowledged that "[t]he authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims." Smith v. State , 136 So. 3d 424, 432 (Miss. 2014). One court addressed the issue as follows:

The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged into their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship.

State v. Eleck , 130 Conn. App. 632, 638-39, 23 A.3d 818, 822 (2011). A general procedure for authenticating social media evidence has been summarized as follows:

[A]uthentication [of] social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity. Additionally, the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.

Commonwealth v. Danzey , 210 A.3d 333, 338 (Pa.Super. 2019) (citation omitted). See State v. Bitner , No. 51179-7-II, 2019 WL 2598731, at *3 (Wash. Ct. App. June 25, 2019) ("[T]ext message evidence can be authenticated based on its contents and substance, ‘taken in conjunction with the circumstances.’ "); Commonwealth v. Davis , No. 1055 MDA 2018, 2019 WL 2323815, at *5 (Pa. Super. Ct. May 31, 2019) (finding text message authenticated because "there was first-hand corroborating testimony from ... [the] recipient"); People v. Ziemba , 421 Ill.Dec. 618, 100 N.E.3d 635, 648 (2018) (finding text messages authenticated by "undercover officer who personally sent and received the text messages contained in People’s exhibit No. 2"); State v. Roseberry , 197 Ohio App. 3d 256, 270, 967 N.E.2d 233, 244 (2011) ("[I]n most cases involving ... texts, instant messaging, and e-mails, the photographs taken of the print media or the printouts of those conversations are authenticated, introduced, and received into evidence through the testimony of the recipient of the messages.").

The decision in In re T.P.D.C ., 396 Mont. 547, 440 P.3d 634 (2019) (unpublished) illustrates the minimal requirement for authenticating text messages between two people. In that case the mother of a child filed a petition to terminate the parental rights of the father of the child. The petition was denied. On appeal one of the issues raised by the mother was that text messages between her and the father of the child were not properly authenticated. The appellate court disagreed as follows:

Finally, Mother

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