West Virginia Criminal Law Blog

From the Register-Herald today:

A Beckley man has been arrested and charged with his second offense of “failure to register as a sex offender.” Well, the guy was registered, you can look it up yourself on the WV Sex Offender registry, found here.

What crime did he commit? His wife (presumably) bought a car and it had his name on it. He didn’t notify the State Police within the required amount of days the statute requires. If you didn’t know, a conviction as a sex offender requires the person to notify the State Police anytime they do or buy anything.

I don’t have a problem with this when it comes to real sex offenders - you know, the child abductors and child molesters, etc. In fact I think we should increase the penalties and protections against these predators. But any “sexually-motivated” conviction brings the requirement to register as a sex offender for life. That waters down the purpose of the sex offender registry. Not every sex offender is dangerous. Not every sex offender deserves to be subjected to the sex offender registry.

What about the guy charged in this case? A glance at his “offender details” reveals that he was convicted in the year 2000 of two counts of 3rd degree sexual abuse. He was given a suspended sentence and 15 months probation - so he did not do any jail time. What is “3rd degree sexual abuse” exactly, and how is that different from 3rd degree “sexual assault?.” Third degree sexual “assault” in West Virginia is essentially statutory rape - sexual intercourse between someone 16 or under and someone over 16 and also 4 years older than the “victim.” I put “victim” in quotes because many times the “victim” is absolutely old enough to be responsible for his or her actions and that fact should not be ignored. The “Assault” charge is a felony and carries up to 5 years in prison.

Third degree sexual “abuse” occurs when one person subjects another person to “sexual contact” without the latter’s consent, when such lack of consent is due to the victim’s incapacity to consent by reason of being less than 16 years old. What is “sexual contact?” It could be slapping someone on the rear-end, or an improper touching of any sort. It doesn’t take much. Actually it could just be a lie. Poor saps are convicted all the time from some 15 or 16 year old girls testimony before a jury, and without much more evidence - and it could very well be a lie. The only defense to this is a good lawyer who can talk some sense into the jury.

Lastly, the victim must be less than 16 years old. That means that the old-farts in the state legislature decided that a young girl on the day before her 16th birthday is absolutely incapable of forming her own decisions, she cannot consent to sexual conduct, but one day later, this 16 year old girl can have all the sexual escapades that she wants. In one magical day, she has become a wise and responsible adult.

So what about the guy in the article? I have no idea what the facts in the case are, but it could be relatively minor, or he even could be innocent. On the other hand, he could have done something more serious and pled down to this charge. Who knows. The point is, that even for relatively minor “sex offenses,” non-dangerous people are subjected to a life of being charged with felonies every time they buy a new car or go on vacation. The charge they put on this guy is a felony and brings 10 to 25 years. And the original charge that he was convicted of was a misdemeanor and only carried a potential penalty of up to 90 days in jail… Think about that. But hey, just like lawyers, these people do not make sympathetic victims and no one is going to help them.

You can read the full article here.

- John H. Bryan, West Virginia Attorney.

The Charleston Daily Mail published a story today about another child porn bust in Kanawha County. This is proving to be an ever-expanding area of criminal law, both nationally and in West Virginia.

Robert Eugene Simmons, 32, was arrested by members of the West Virginia Internet Crimes Against Children task force after giving officers permission to search his computer, according to the criminal complaint.

The arrest comes less than a week after the first child pornography sting in the Kanawha Valley where ICAC officers used peer-to-peer file sharing to observe child pornography distribution. This type of observation has already been successful elsewhere in the state.

The article stated that: “Simmons, and others arrested for distributing child pornography, may face more charges after their computers’ hard drives are examined, said State Police Sgt. P.C. Koerner, who aided in Tuesday’s arrest.”

For any defense attorneys who have not yet faced charges such as these, here is what they have been doing: they seize the computer, it then is sealed and placed in the State Police detachment evidence room. They then have the option of doing a “live preview” of the hard drive to essentially take a peek at what could be on the hard drive. Then the computer is transported to Huntington, West Virginia, to the state’s forensic computer expert. At that point, the proper procedure is to make a “clone” of the hard drive before anything else is done with the computer.

The article further stated that “Each file shared over the Internet has a fingerprint attached to it. What we’re able to do is, we’re able to track where those files are going. As a computer forensics expert will tell you, each file has should be “hashed” which gives you this “fingerprint” - and if that is not done, then there could be some deficiencies with the evidence.

With child porn charges, defendants can be charged in state court, or they can be charged federally. The federal charges bring a minimum sentence of 10 years. If the charges are federal, it can alter your access to the evidence (i.e., computer). Federal prosecutors demand that the defendants attorneys or experts not be allowed to possess their own “clone” of the hard drive, as can be allowed if the charges only exist at the state level. I’m not sure what makes the federal prosecutors God, but for some reason the state police and defense experts are afraid to disobey the AUSA’s demands.

The protocol they use is this: they first make a clone of the hard drive, then the defense clone gets placed in a safe in the evidence room; the defense is given the only key, then when they want to analyze the computer, you are forced to do it under supervision of the state police. Now, if the charges are in state court only, then you can get an order from a circuit court judge to possess a clone of the hard drive. By the way, the feds insist on this even if no child porn has yet been found on the hard drive.

Speaking of experts, it is extremely important to retain an defense expert from the very beginning. The state has an expert are their side from the very beginning. You must have a forensic computer expert who can observe any and all manipulation of the hard drive by the state’s experts, as well as perform his or her own analysis of the hard drive. The important thing here is to prevent spoilation of evidence that could be exculpatory, and to foreclose the possibility of any manufacturing of evidence by the state, as well as to be able to give an opinion at trial regarding the reliability of the state’s procedures. If anyone is in need of an expert for computer-related charges, contact me and I can put you in touch with a very good one.

I think this is a trend we will continue to see in West Virginia, both with child porn charges, and with online solicitation charges. There is not much case law yet in this state for these types of cases, so many of the defenses have not yet been tried as they have in other states.

You can read the full article from the Charleston Daily Mail here.

- John H. Bryan, West Virginia Attorney.

From the Charleston Daily Mail:

A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.

State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.

Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.

Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.

Tincher says the teacher has been suspended from her job.

What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school - other than in a Van Halen song.

Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 - old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.

Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever - even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.

Read the full article here.

- John H. Bryan, West Virginia Attorney.

Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.

Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.

These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.

In these types of cases (in West Virginia), the defense can give a special instruction to the jury - called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”

This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard - which in reality should be a difficult burden for the state.

However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”

Read the entire article from the Register-Herald here.

- John H. Bryan, West Virginia Attorney.

Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case - basically a “he said - she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.

It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.

- John H. Bryan, West Virginia Attorney.

From the Beckley Register-Herald:

Man faces 400 counts of sexual assault

Register-Herald Reporter

Bond was set at $12 million for a Summersville man who is facing 400 counts of first-degree sexual assault by a parent, guardian or custodian.

Howard H. Neil, 70, of 147 Euclid Drive, was taken to Central Regional Jail following his arrest Monday.

A preliminary hearing is scheduled this morning in magistrate court, but Nicholas County Prosecutor Mark Hudnall said Thursday it was unlikely the hearing would proceed because Neil had not retained an attorney.

The alleged assaults occurred over the course of four years, 1998 to 2002, when the child was between the ages of 7 and 12.

Hudnall said the investigation is continuing.

Sheriff’s deputies arrested Neil on Monday because it was believed he posed a flight risk, Hudnall said.

The investigating officer Deputy Vicki Rains.

— Bill Billeter

From the Charleston Daily Mail:

Man fails to register as sex offender after moving

by Zack Pettit
Daily Mail staff

A Charleston man was arrested for failing to register as a sex offender after moving from Putnam to Kanawha County.

West Virginia State Police Sgt. K.S. Dickson obtained a warrant for James Roy Arthur, 36, in February, after learning he moved from his registered address, according to a press release from Sgt. Kenneth McCord.

He was discovered at a Kanawha County residence Tuesday and arrested without incident, the release said.

Arthur was arraigned on the felony warrant for failing to notify police of the move, and an additional 12 felony counts ranging from failing to report his new telephone number to neglecting to notify police of his Internet service, the complaint said.

He is being held at South Central Regional Jail on a $1,000 bond, the release said.

Arthur was convicted of second-degree sexual assault in 1994 and served about ten years in prison, but since the crime involved a juvenile, he is required to register his information with police for life, the complaint said.

People convicted of sexual related crimes are required to register annually with State Police, and must notify them of any changes within ten business days of the change, the complaint said.

From today’s Charleston Daily Mail:

Note: Usually in a criminal trial, evidence of past bad behavior, or alleged past unlawful behavior, is inadmissible to prove that the person acted in conformity with the past behavior in the case at trial. However, in instances where the past conduct is extremely similar to the current charges, it can be used as evidence to prove modus operandi - or as it is usually referred to, his “M.O..” In sexual molestation cases, many of the old allegations will have long passed the statute of limitations, but they can still be used to convict on current charges. - John H. Bryan, West Virginia criminal defense attorney.

17 more former students claim molestation by music teacher

by Zack Pettit
Daily Mail staff

Seventeen more people have come forth and accused St. Albans music teacher Jack Pierce of sexual abuse, police said. All 17 accusations were made by males who had taken lessons from Pierce, St. Albans Police Detective Mark Burdette said. Some of the incidents date back to 1968, he said.

Pierce, 61, has taught private piano and voice lessons for more than four decades. He was arrested Tuesday and charged with first-degree sexual abuse in connection with allegations made by former student Joshua Willard.

Burdette, the lead investigator in the case, said the newest complainants have accused Pierce of nearly identical behavior that Willard reported.

Willard, 18, filed a complaint Jan. 3, alleging Pierce had sexually abused him in 2004 when he was 14 years old.

Since Tuesday, Burdette said police have heard from former students across the country, coming from as far away as Oklahoma.

“The claims are pretty much identical,” Burdette said. “They said (Pierce) made them sleep in bed with him. They’re saying he rubbed their backs, stomachs and genitals. We know some of them are legitimate.”

Willard told detectives he and his brother were dropped off at Pierce’s St. Albans home to spend the night and watch movies, according to the complaint filed in Kanawha Magistrate Court.

Later that night, Willard was coerced into sleeping in Pierce’s bed while his brother slept downstairs on a couch, the complaint said.

While in bed, Pierce began fingering the teenager’s belly button and fondling him through his pants, according to the complaint.

The night’s events made Willard feel uncomfortable, and the next morning he told his mother what had happened, the complaint said.

His mother did not contact police, but she removed her children from Pierce’s classes.

Willard reported the claim to police last month, and Pierce was arrested and taken to South Central Regional Jail. He has since posted bond.

Burdette now is asking any other alleged victims report to police headquarters or mail their written statements to police.

He said it is common for a flood of complaints to come in after an arrest has been made, especially when a case involves juveniles.

“Juveniles don’t want to say anything because they are afraid of what their friends will think of them,” he said. “They don’t want that hassle or publicity. They want to keep it hush-hush.”

He said other victims often feel more comfortable coming forward and more willing to take a stand if someone else’s allegations become public.

Burdette said police are working to substantiate the claims by looking at Pierce’s detailed records dating back to 1989.

“He kept meticulous accounts,” Burdette said. “We will find every single one of these complaints. Everything is documented. He wrote when kids spent the night, went to dinner.”

One of Pierce’s former students, Derek Chase, 23, of Racine, has not contacted police and said he doesn’t plan to.

But he said he was involved in a “similar situation” to what Willard has reported.

Chase previously lived in Winfield and took voice lessons from Pierce for about four years, beginning when he was a sophomore in high school.

He said his former teacher often took him out to dinner, to movies, even to Broadway shows in New York and a luncheon at The Greenbrier.

Chase said he at first didn’t think anything was out of the ordinary, but his feelings about his teacher changed after an incident he would only describe as being “similar” to what Willard reported.

Chase said he didn’t want to go into detail.

“I know what he’s done to me,” Chase said. “I know I’ll be held accountable for what I say, but I know from my experience he’s guilty.”

Chase, who now works for Massey Energy, is married and expecting his first child.

He said he didn’t go to police for several reasons.

“In my case, I didn’t really think I had anything to stand on because I was 18 (at the time),” he said. “In a way, it’s embarrassing to even talk about. It’s a messed up situation.”

Chase said he stopped taking lessons from Pierce not long after the alleged incident.

But some other people who know Pierce describe the man as “courteous,” and say they can’t believe the accusations against him.

Beverly McCormick of St. Albans said she has been a friend and a neighbor of Pierce’s for about 48 years.

“I can’t believe any of it’s true,” she said. “It’s a big shock, big surprise. He’s somebody I go to Wal-Mart with and go to the movies with.”

Burdette said he thinks the allegations have been difficult for many people in St. Albans to deal with.

“It’s kind of hard for them to believe because he’s considered a kind of pillar of the community,” he said. “It’s something they can’t comprehend or conceive him doing. He’s buffaloed people.”

Burdette said he isn’t sure how long the investigation will continue, or how many students might be involved.

Police have said there are 200 students enrolled in Pierce’s music lessons right now. Burdette estimated Tuesday that Pierce has taught anywhere from 2,000 to 3,000 students over the course of his career.

Pierce has a preliminary hearing scheduled for Feb. 21.