State v. Castaneira
| Decision Date | 09 June 2017 |
| Docket Number | No. 15-1239,15-1239 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Andrew W. Castaneira, Defendant Below, Petitioner |
(Berkeley County15-F-42)
Petitioner, Andrew W. Castaneira, by counsel Lori M. Waller, appeals his conviction in the Circuit Court of Berkeley County of possession of material depicting a minor engaged in sexually explicit conduct that depicts violence against a child in violation of West Virginia Code § 61-8C-3(d). Respondent, the State of West Virginia, by counsel Christopher C. Quasebarth, responds in support of the circuit court order. Petitioner filed a reply, which raised additional assignments of error pursuant to Rule 10(c)(10)(b) of the West Virginia Rules of Appellate Procedure. With the Court's permission, the State filed a response that addressed petitioner's Rule 10(c)(10)(b) assignments of error.
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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner was indicted on three counts of possessing material depicting a minor engaged in "sexually explicit conduct" and "violence against a child," in violation of West Virginia Code § 61-8C-3(a) and -3(d). Petitioner retained private counsel, Gregory V. Smith, who withdrew from the case due to "a total, complete and unfixable breakdown in [a]ttorney client communications." Thereafter, the circuit court appointed the Public Defender's Office to represent petitioner; however, it also withdrew. The circuit court then appointed attorney Andrew Arnold. Thereafter, the parties exchanged discovery and filed pre-trial motions, and the circuit court scheduled a pre-trial hearing for September 3, 2015, and trial for September 15, 2015. On September 1, 2015, Mr. Arnold moved to withdraw as counsel, citing a "complete breakdown in the [a]ttorney/[c]lient relationship."
At the September 3, 2015, pre-trial hearing, the circuit court granted Mr. Arnold's motion to withdraw and appointed attorney Matthew Yanni as petitioner's counsel. The circuit court also scheduled a hearing for September 9, 2015, to determine whether Mr. Yanni would be ready to proceed to trial on September 15, 2015. Soon thereafter, Mr. Yanni moved to dismiss petitioner's indictment.
At the September 9, 2015, hearing, the State voluntarily dismissed two of the three counts of petitioner's indictment. Thereafter, the circuit court offered to continue trial to a later date; however, counsel for both parties stated that they were ready to proceed. The circuit court then asked petitioner if he wished to proceed to trial, as scheduled. Petitioner repeatedly affirmed that he did not want a continuance; however, he alleged that Mr. Yanni's assistance was not effective.
At a September 14, 2015, hearing the day before trial, petitioner asked the court to appoint new counsel; however, he repeatedly avowed that he did not want to "waive his speedy trial rights" or to represent himself at trial. The circuit court allowed petitioner to speak at some length regarding his motion for new counsel. The circuit court then denied petitioner's motion and found that petitioner refused a continuance of his trial, and that Mr. Yanni would remain as petitioner's trial counsel. The circuit court also found that all four lawyers who had represented petitioner were competent members of the West Virginia State Bar.
Petitioner's trial commenced on September 15, 2015. The State called three witnesses, all of whom were members of the West Virginia State Police's Internet Crimes Against Children Task Force. The State first called Sgt. David C. Eldridge, who was qualified as an expert in the investigation of internet child pornography and peer-to-peer file-sharing networks.1 Sgt. Eldridge testified that he discovered a certain internet protocol ("IP") address had obtained numerous child pornography "files" via the use of peer-to-peer networks. Sgt. Eldridge also testified that the IP address associated with these files belonged to petitioner.
Cpl. W.R. Garrett testified next. Cpl. Garrett was qualified as an expert in the investigation of child pornography, general internet-based investigations, and data recovery and acquisition. Cpl. Garrett testified that he executed a search warrant on petitioner's home and retrieved various computers, hard drives, and other related materials. Cpl. Garrett testified that petitioner arrived at home during the search. Petitioner stated he was aware of his right to remain silent. Petitioner then admitted that he had downloaded child pornography onto his laptop computer using peer-to-peer networks; that he accessed the internet through a wireless connection, which was password protected; and that he was the only person who knew the password. Petitioner also claimed that, in some cultures, child pornography is "perfectly legal," but Western culture does not view it that way. Finally, petitioner admitted to Cpl. Garrett that he knew child pornography was illegal.
Cpl. Garrett then testified to the contents of a three-and-one-half minute video found on one of petitioner's hard drives. In the video, "daddy," an adult male, digitally penetrates and hasintercourse with a female child who appears to between the ages of four and seven. The video also shows the child performing oral sex on "daddy" and the man ejaculating on the child's face. The child was apparently "groomed" for sexual contact because, during these events, she says, "You can do whatever you want, daddy." The State then published the video to the jury.
Following Cpl. Garrett's testimony, petitioner—in the presence of the jury—orally moved the court to discharge Mr. Yanni on the ground of "gross incompetence and ineffective assistance of counsel." The circuit court recessed the jury, took up petitioner's motion, and denied it. The court then returned the jury to the courtroom and instructed them to ignore petitioner's motion to discharge Mr. Yanni.
Thereafter, the State qualified Sgt. David E. Boober as an expert in forensic computer analysis, data recovery and acquisition, internet-based investigations, and investigations of child pornography. Sgt. Boober testified regarding his forensic search of petitioner's computers and hard drives. Sgt. Boober also testified that the hard drive containing the video described above by Cpl. Garrett also contained 249 other child pornographic video files and 497 child pornographic image files.
Petitioner did not testify and petitioner's trial counsel did not call any other witnesses.
Thereafter, the circuit court instructed the jury, over petitioner's objection, as follows:
The jury found petitioner guilty of possessing material showing a minor engaged in sexually explicit conduct that depicted violence against a child, in violation of West Virginia Code § 61-8C-3(d). By order entered November 19, 2015, the circuit court sentenced petitioner to the statutory sentence of not less than five nor more than fifteen years in prison, sex offender registration for life, and ten years of supervised release. Petitioner now appeals his conviction.
On appeal, petitioner raises seven assignments of error. Petitioner first argues that the jury instruction defining "depicts violence" erroneously allowed the jury to conclude that all sexually explicit material depicts violence against a child. Petitioner avers that to "depict violence" against a child pursuant to West Virginia Code § 61-8C-3(d), the material must depict some physically violent overt act above and beyond sexual assault, such as hitting, beating, restraining, or torturing a child. Petitioner concludes that the circuit court's...
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