State v. Shingleton

Decision Date24 March 2016
Docket NumberNo. 12–1446.,12–1446.
Citation790 S.E.2d 505
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Respondent, v. William B. SHINGLETON, Defendant Below, Petitioner.

Duane C. Rosenblieb, Jr., Esq., Patrick Morrisey, Esq., Charleston, WV, Attorney General, Counsel for the Petitioner.

David A. Stackpole, Esq., Assistant Attorney General, Benjamin F. Yancey, III, Esq., Assistant Attorney General, Charleston, WV, Counsel for the Respondent.

LOUGHRY

, Justice:

The petitioner, William B. Shingleton, appeals the January 21, 2014, second amended sentencing order of the Circuit Court of Putnam County through which he was sentenced to a total period of incarceration of seventeen years for his convictions on twenty counts of Possession of Material Visually Portraying a Minor Engaged in Sexually Explicit Conduct in violation of West Virginia Code § 61–8C–3

(1988) and his related recidivist conviction under West Virginia Code §§ 61–11–18 and –19 (2014). Seeking to set aside his convictions and sentences, the petitioner challenges the admission of the State's medical expert's opinion testimony; the sufficiency of the State's evidence to convict him; the admission of testimony regarding a flash drive; and the entry of the jointly proposed second amended sentencing order outside his presence. He also argues that the second amended sentencing order increased his sentence in violation of his constitutional rights.1

Following a careful review of the briefs, the arguments of counsel, the record submitted, and the applicable law, this Court finds no reversible error and affirms the petitioner's convictions and sentencing.

I. Facts and Procedural Background

In April of 2010, the petitioner's then ten-year-old son, J.S.,2 went to the home shared by his uncle, Larry “Wayne” Henson, and his uncle's girlfriend, Lori Gil. While there, J.S. gave a flash drive3 to Ms. Gil's daughter, L.C.,4 asking her to load music onto it. When L.C. inserted the flash drive into her computer, files “popped up” with pictures that she did not think they were meant to see. L.C. stated that J.S. “looked kind of scared,” telling her that the flash drive “wasn't his” and that he had “accidentally grabbed his dad's” flash drive.5

L.C. called for her mother who, upon viewing the computer screen, sent J.S. home and asked Mr. Henson to come inside.6 After viewing a picture of a topless girl on the laptop, Mr. Henson took the flash drive and left the house to “find a cop” because “the young girl” appeared to be “a little kid [.] Mr. Henson found Putnam County Deputy Sheriff Chad Weaver in his cruiser at a nearby Go–Mart convenience store and gave the flash drive to him.

Deputy Weaver viewed the files on the flash drive, which he described as “several pornographic images of females ... [he] believe[d] to be under the age of 18.” The deputy took statements from Mr. Henson and Ms. Gil and made a report. Deputy Weaver turned the investigation over to Sergeant Ryan Lockhart, a detective in the Crime Unit of the Putnam County Sheriff's Department.

Detective Lockhart obtained two search warrants: one to access the flash drive that Mr. Henson had given to Deputy Weaver and one for the petitioner's home. In executing the warrants, multiple computers and “removable media” were seized. These items were ultimately forwarded to the Federal Bureau of Investigation (“FBI”) for analysis. The FBI identified child pornography on both the subject flash drive and a desktop computer with the username Bill.”7

On April 21, 2010, Detective Lockhart took a statement from the petitioner which was recorded.8 In his statement, the petitioner described his regular use of a program, “Forte Agent,” to download batches of file attachments to his computer. He explained that through this program, sometimes as many as 10,000 pornographic files were downloaded to his computer overnight while he sleeps;9 that he would open and sort through the file attachments about once a week; and that he would delete any images that appeared to depict underage individuals. The petitioner admitted that although he might see “6 pictures that you know you shouldn't have” each week, he continued to use this program to access pornography. The petitioner further stated that he does “tend towards, sometimes, the younger stuff,” but that he does not “search for underage girls ... just young looking girls[.] He explained that while he does not look for “pictures of little girls,” he does “get ‘em,” and that he “like[d] young looking girls” because women his age10 “look like they're 60.” When Detective Lockhart asked the petitioner what he meant by “little girls,” the following exchange took place:

Detective: Okay well, define little girl for me.
Petitioner: Well, undeveloped you know.
Detective: Okay like what age?
Petitioner: Like, under 13, you know.
Detective: Okay so, if, if you saw a picture of a 14 year old girl, would you keep it?
Petitioner: I don't ...
Detective: Or a 16 year old girl?
Petitioner: If I see large breasts and you know one with large breasts and like pubic hair and stuff, you know.
Detective: Uh ... huh.
Petitioner: If the girl's attractive, I might keep the picture.

When questioned concerning his knowledge that he possessed child pornography, the following exchange took place:

Detective: When you came to my office today?11
Petitioner: Uh ... huh.
Detective: You knew that you had been looking at stuff you shouldn't have been looking at and that's why you're as nervous as you are.
Petitioner: I knew that I had seen stuff that I was not supposed to be looking at ... I have seen stuff.

....

Detective: You know that there's stuff on your computers that you shouldn't have.
Petitioner: And I told you that.

The petitioner also stated that any child pornography found on the computers seized from his home pursuant to the search warrant was downloaded by accident.

On March 6, 2012, the petitioner was indicted on twenty counts of Possession of Material Visually Portraying a Minor Engaged in Sexually Explicit Conduct in violation of West Virginia Code § 61–8C–3

(2010).12 All twenty counts were identical, with the exception of the number of each count. Each count read as follows:

Count No. One (1): that WILLIAM B. SHINGLETON, on the____ day of March 2010, in the said County of Putnam, committed the felony offense of “POSSESSION OF MATERIAL VISUALLY PORTRAYING A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT” in that he, the said William B. Shingleton, on the ____ day of March, 2010, in said Putnam County, West Virginia, did unlawfully, feloniously and knowingly possess material visually portraying a minor engaging in sexually explicit conduct, against the peace and dignity of the State, West Virginia Code, Chapter 61, Article 8C, Section 3[.]13

The petitioner's jury trial was held in June 2012. Deputy Weaver testified regarding how he came to be in possession of the flash drive, and Detective Lockhart testified regarding his investigation in this matter. Through Detective Lockhart, the audio recording of the statement he took from the petitioner was admitted into evidence at trial.14 Mr. Henson and Ms. Gil testified regarding their actions once the flash drive's contents were revealed to them, as described above.

L.C. testified at trial regarding the flash drive that was handed to her by the petitioner's son, J.S.; the images that appeared when she opened the flash drive on her computer; and the statements immediately made by J.S. that the flash drive “wasn't his” and that he had “accidentally grabbed his dad's” flash drive. A few questions and answers later, the petitioner objected to this earlier testimony on the basis of hearsay. The State responded that L.C.'s testimony fell within the present sense impression exception to the hearsay rule,15 and the objection was overruled.16 Although J.S. was subpoenaed and available to testify, neither the State nor the defense called him as a witness at trial.

Melinda Cash, an Information Technology Specialist Forensic Examiner with the FBI, testified for the State. Ms. Cash indicated that seventy to eighty percent of her cases involve child pornography. Regarding the instant matter, Ms. Cash testified that she examined the petitioner's computers and the subject flash drive that had been forwarded by the Putnam County Sheriff's Office. Explaining that every digital image of child pornography can be identified by “hash value,”17 Ms. Cash stated that she found 127 images that were “suspected child porn erotica” on the desktop computer with the user name Bill.”18 She further testified that forty-three images, which were found on both the desktop computer and the flash drive, were matched by their hash value with the hash values of known child pornography contained in a database known as the “DHS–ICE, National Child Victim Identification Program” (“NCVIP”),19 and nineteen of those images were matched with the FBI's NCVIP database.20 Ms. Cash verified that the images were of actual children who had been reported to the NCVIP. Through Ms. Cash, twenty images depicting child pornography21 were admitted into evidence as having been found on either the desktop computer with the username Bill,” the flash drive, or both.22 Ms. Cash's examination of the desktop computer and flash drive revealed that the child pornography had been downloaded over a period of years.

Joan Phillips, M.D., testified for the State. Dr. Phillips, a board certified pediatrician, is the co-director of the Child Advocacy Center at the Charleston Area Medical Center in Charleston, West Virginia, as well as the clinical director of the hospital's Children's Services. Dr. Phillips was qualified as an expert in the field of pediatrics and child abuse and neglect. Having been previously disclosed in discovery as the State's expert “regarding the relative ages of the alleged children in the photographic images based on their developmental growth,” Dr. Phillips testified regarding ...

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10 cases
  • State v. Sites, 16-0437
    • United States
    • West Virginia Supreme Court
    • February 7, 2019
    ...Clause objection at trial precludes this Court from addressing the matter in this appeal. See State v. Shingleton, 237 W. Va. 669, 684, 790 S.E.2d 505, 520 (2016), abrogated by statute on other grounds ("The petitioner did not assert a Confrontation Clause objection to L.C.'s testimony duri......
  • State v. Sites
    • United States
    • West Virginia Supreme Court
    • February 7, 2019
    ...a Confrontation Clause objection at trial precludes this Court from addressing the matter in this appeal. See State v. Shingleton , 237 W. Va. 669, 684, 790 S.E.2d 505, 520 (2016), abrogated by statute on other grounds ("The petitioner did not assert a Confrontation Clause objection to L.C.......
  • State v. Horton
    • United States
    • West Virginia Supreme Court
    • April 10, 2023
    ... ... W.Va. 21, 851 S.E.2d 100 (2020) ...          3 ... "The statutory penalty in effect at that time of the ... defendant's criminal conduct shall be applied to the ... defendant's conviction(s)." Syl. Pt. 13, in part, ... State v. Shingleton , 237 W.Va. 669, 790 S.E.2d 505 ... (2016), superseded by statute on other grounds, as stated ... in State v. Sites , 241 W.Va. 430, 825 S.E.2d 758 (2019) ...          4 ... "In the absence of any provision in the habitual ... criminal or recidivist ... ...
  • State v. Ingram, 19-0016
    • United States
    • West Virginia Supreme Court
    • November 19, 2020
    ...become effective after the petitioner's sentencing, does not apply in this case. See, e.g., Syl. Pt. 13, in part, State v. Shingleton, 237 W. Va. 669, 790 S.E.2d 505 (2016), superseded by statute on other grounds, State v. Sites, 241 W. Va. 430, 825 S.E.2d 758 (2019):The statutory penalty i......
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