West Virginia v. Benny W., No. 18-0349

CourtSupreme Court of West Virginia
Writing for the CourtJUSTICE HUTCHISON delivered the Opinion of the Court.
Docket NumberNo. 18-0349
PartiesSTATE OF WEST VIRGINIA, Respondent v. BENNY W., Petitioner
Decision Date18 October 2019

BENNY W., Petitioner

No. 18-0349


Submitted: October 1, 2019
October 18, 2019

Appeal from the Circuit Court of Ritchie County
Honorable Timothy L. Sweeney, Judge
Criminal Action No. 17-F-8


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, II, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

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1. "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." Syllabus point 12, State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017).

2. Under Rule 901(a) of the West Virginia Rules of Evidence, social media text messages may be authenticated in numerous ways including, for example, by a witness who was a party to sending or receiving the text messages, or through circumstantial evidence showing distinctive characteristics that link the sender to the text messages.

3. "A conviction for any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such testimony is inherently incredible, the credibility is a question for the jury." Syllabus point 5, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981).

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4. "Only when testimony is so unbelievable on its face that it defies physical laws should the court intervene and declare it incredible as a matter of law." Syllabus point 8, State v. Smith, 178 W. Va. 104, 358 S.E.2d 188 (1987).

5. In reviewing the qualifications of a jury to serve in a criminal case, we follow a three-step process. Our review is plenary as to legal questions such as the statutory qualifications for jurors; clearly erroneous as to whether the facts support the grounds relied upon for disqualification; and an abuse of discretion as to the reasonableness of the procedure employed and the ruling on disqualification by the trial court.

6. "A trial court's failure to remove a biased juror from a jury panel, as required by W. Va. Code § 62-3-3 (1949) (Repl.Vol.2010), does not violate a criminal defendant's right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike. In order to obtain a new trial for having used a peremptory strike to remove a biased juror from a jury panel, a criminal defendant must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled." Syllabus point 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013).

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7. Under Rule 404(a)(2)(A), of the West Virginia Rules of Evidence, a defendant in a criminal prosecution may offer evidence of the defendant's pertinent character trait.

8. Under Rule 404(a)(2)(A), of the West Virginia Rules of Evidence, "honesty" is not a pertinent character trait of a criminal defendant who is being prosecuted on a sexual offense charge.

9. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

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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.


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.

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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

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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.

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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.").

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

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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

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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:


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