State v. Calvert, 15-0195
| Decision Date | 03 June 2016 |
| Docket Number | No. 15-0195,15-0195 |
| Court | West Virginia Supreme Court |
| Parties | STATE OF WEST VIRGINIA, Plaintiff Below, Respondent v. MATTHEW CALVERT, Defendant Below, Petitioner |
Petitioner Matthew Calvert, pro se,1 appeals the sentencing order of the Circuit Court of Harrison County, West Virginia, following his conviction of harassment by electronic communications, a misdemeanor under West Virginia Code § 61-3C-14a (2014). Petitioner raises several assignments of error challenging the constitutionality of the statute and asserting there was insufficient evidence to support the jury's verdict. The State, by counsel, Jonathan E. Porter, filed a summary response in support of the circuit court's order.
This Court has considered the parties' briefs, oral arguments, and the appendix record on appeal. We find no substantial question of law and therefore a memorandum decision affirming the judgment is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. As explained below, we reject Petitioner's constitutional arguments in their entirety and conclude there was sufficient evidence to support the verdict.
Between October 4 and 7, 2013, the internet website Topix had a chat thread entitled "Goff," under which various persons posted comments about Marshall Goff, the former chief of police of Clarksburg, West Virginia. Eventually, persons identifying themselves as Mr. Goff's wife, Cheryl Goff, and his sister, Tina Gallo, joined the discussion. Petitioner also began commenting in the thread. Petitioner's first post (post #13) was:
The person identifying herself as Tina Gallo replied to Petitioner's post by commenting in post #22:
Let me get one thing straight. DO NOT EVER, AND I MEAN EVER, bring my son2 into this discussion. Do you understand me? Since you know so much regarding my family, please come to my house. You and I will have a very brief discussion on your issues at hand, because apparently you have more than one on your mind. You can take this to the bank. I am a Goff, married to a Gallo, who, unknown to you is not originally from WV. They are from NY[], so do not get that twisted. Next, the Goff's and the Gallo's are here to stay. If you are wondering who is behind me as I speak . . . the list is long, so when you feel like a frog, leap! As far as my son driving a police car . . . again, my suggestion is you leave my son out of this. Do not think for one minute I would not defend anyone in my family because I will, but listen you low life scum . . . do not mention my son again. Remember hackers are everywhere, and I know a few[.]
(Footnote added). Petitioner responded to Ms. Gallo's reply by making the following post (post #31):
Please let me respond. I beg you to hack it and look for me! Your husband violated my most sacred right. I will have no problem answering your husband, your son, your friend, and any Clarksburg police department officer with my Mossberg shotgun, and I vow to you today, I will raise heaven and earth to have your husband convicted for what he did to me. I reiterate, please come looking for me, you come to my house bitch, I will open your chest with my 12 gauge, that I promise you from the bottom of my heart. Your husband wasn't a great man, he was a tool and the problem along with Zeke [L]opez and the rest of Clarksburg's officials. Please take notice along with Patsy Trecost, who I am also sure who took part in my railroading.
Immediately following Petitioner's post #31, a third person using the screen name "yeah yeah" commented in post #32, as follows:
Yeah[,] that's probably not smart! Threatening a police officer his family all bad decisions. See these things call IP addresses give away who you are and can be subpoenaed. The [sic] your arrest will follow! You and I both know he still has favors in [C]larksburg! Good luck with your quest!
In post #36, Petitioner replied to the third person's post #32 by making the following comment:
threats, threats, exactly what I responded to, you want to see someone willing to follow through, come find me. As for threats to Clarksburg Police, they know they aren't welcome here and if they come looking for trouble, they will get all they can handle. NOT a threat, a promise.
Petitioner made one final post (post # 37):
Detective Jason Webber of the Clarksburg Police Department, who investigates internet crimes, was monitoring the "Goff" chat thread during the times Petitioner made his posts. Being concerned with the comments, Detective Webber began an investigation to identify Petitioner. After discovering Petitioner's identity by executing search warrants, Detective Webber questioned and later arrested Petitioner. The grand jury indicted Petitioner for the misdemeanor offense of making harassing and threatening communications by computer. W.Va. Code § 61-3C-14a. The indictment contains the comments Petitioner made in posts #31 and #36.
At trial, the State introduced the Topix chat thread and Detective Webber explained how he identified Petitioner as the person making the posts. Detective Webber testified that he was concerned about the threats to the Clarksburg Police Department. Prior to trial, the circuit court granted Petitioner's motion to suppress evidence related to his prior domestic battery arrest and ruled that the State could not introduce evidence of the arrest, which had been expunged. Detective Webber did not mention the arrest but he did testify that police officers had been called to Petitioner's home for unspecified reasons. He testified that the nature of those calls, for the most part, was that someone needed assistance at the home and Petitioner called 911. Because of those prior visits to the home, the police knew that Petitioner possessed firearms. Detective Webber testified that he "was concerned that someone would go over there checking his residence, see if the neighbor is home, police officer knocks on the door and be shot."
Petitioner testified in his own defense and did not deny making the posts. Petitioner did not suggest that he made the posts in jest, nor did he testify that he was simply blowing off steam. To the contrary, Petitioner testified that he "felt absolutely threatened" by posts made from Ms. Goff and "needed to respond to try to deter anybody from coming to my house with the long list of people to do me harm." The defense strategy was that Petitioner was not threatening to commit a crime because he was conveying the message that he planned to act in self-defense, and self-defense is not a "crime." Petitioner requested a self-defense instruction, which the circuit court refused.
The jury found Petitioner guilty. He filed a motion for post-verdict judgment of acquittal, arguing the At the sentencing hearing, the circuit court denied that motion and his motion for a new trial. The circuit court sentenced Petitioner to sixty days in jail, suspended the sentence and placed him on two years' probation.3 This appeal followed.
When the constitutionality of a statute is challenged, the scope of our review is necessarily plenary. See Syl. Pt. 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008) (). With regard to Petitioner's assignment of error predicated on insufficiency of evidence, the standard we articulated in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), controls:
A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.
Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part. With these two standards in mind, we proceed to the merits of this case.
Under the West Virginia Computer Crime and Abuse Act (the "Act"),4 it is a crime "for any person, with the intent to harass or abuse another person, to use a computer, mobile phone, personal digital assistant or other electronic communication device" to "threaten to commit a crime against any person or property[.]" W.Va. Code § 61-3C-14a(a)(3).5
In seeking reversal of his conviction, Petitioner first argues that the circuit court failed to narrowly construe the Act consistent with the First Amendment because "no reasonable juror could have found" that his comments constituted a "true threat." Although this argument is poorly developed, we discern it as requiring two independent analyses. We first address Petitioner's free-speech challenge to his conviction and then consider his sufficiency of the evidence argument.
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