                                                                                FILED
                                                                             June 6, 2019
No. 18-0936 – State v. Beck                                                    released at 3:00 p.m.
                                                                           EDYTHE NASH GAISER, CLERK
                                                                           SUPREME COURT OF APPEALS
WORKMAN, J., concurring:                                                        OF WEST VIRGINIA



              While I concur in the majority’s substantive response to the reformulated

certified question in this case, I write separately because I believe the new syllabus point,

as constructed, is unwieldy and improperly injects the concept of “circumstantial evidence”

into the analysis. As is well-established, in West Virginia:

              There should be only one standard of proof in criminal cases
              and that is proof beyond a reasonable doubt. Once a proper
              instruction is given advising the jury as to the State’s heavy
              burden under the guilt beyond a reasonable doubt standard, an
              additional instruction on circumstantial evidence is no longer
              required even if the State relies wholly on circumstantial
              evidence.

State v. Guthrie, 194 W. Va. 657, 663, 461 S.E.2d 163, 169 (1995). Therefore, the

distinction created in the syllabus point that cache files may serve as circumstantial

evidence is entirely unnecessary and confusing inasmuch as this Court has made clear that

“there is no qualitative difference between direct and circumstantial evidence.” Id., at 669,

461 S.E.2d at 175. It is not the place of this Court, in the vacuum of a certified question,

to label a piece of evidence as “direct” or “circumstantial,” nor dictate for unforeseen

circumstances and cases the exclusive manner in which a piece of evidence must be used.



              The reason for the majority’s adamant inclusion of the term “circumstantial”

is undoubtedly because of its reliance on New v. State, 755 S.E.2d 568 (Ga. Ct. App. 2014)

to craft its syllabus point. However, in Georgia, the distinction between direct and

circumstantial evidence is critical because Georgia, by statute, treats convictions based
                                            1
solely on circumstantial evidence differently: “To warrant a conviction on circumstantial

evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall

exclude every other reasonable hypothesis save that of the guilt of the accused.” Ga. Code

Ann. § 24-14-6 (2013).



              West Virginia has expressly rejected this distinction:

              In adopting Jackson [v. Virginia, 443 U.S. 307 (1979)], we
              necessarily overturn our long established rule that when the
              State relies upon circumstantial evidence, in whole or in part,
              for a court to sustain the verdict all other reasonable hypotheses
              need be excluded by the prosecution save that of guilt.

Guthrie, 194 W. Va. at 668, 461 S.E.2d at 174.1 This is why a common jury charge or

instruction in West Virginia advises the jury that: “The law makes no distinction between




       1
          As we observed in Guthrie, “there is substantial conflict among the states”
regarding whether circumstantial evidence must be treated differently as pertains to
criminal convictions. 194 W. Va. at 669 n.8, 461 S.E.2d at 175 n.8. This Court’s
jurisprudence previously mimicked that of the Georgia statute and stated that
circumstantial evidence would not support a guilty verdict unless the fact of guilt was
proved to the exclusion of every reasonable hypothesis of innocence. See State v. Noe, 160
W.Va. 10, 15, 230 S.E.2d 826, 829–30 (1976). However, in Guthrie, the Court overruled
Noe, agreeing with the United States Supreme Court’s statement that “where the jury is
properly instructed on the standards for reasonable doubt, such an additional instruction on
circumstantial evidence is confusing and incorrect. . . . [because] [c]ircumstantial evidence
in this respect is intrinsically no different from testimonial evidence.” Holland v. United
States, 348 U. S. 121, 139-40 (1954). This Court expressly adopted the Jackson/Holland
rule in Guthrie.

       Accordingly, there may well be other jurisdictions that also constrict cache file
evidence to “circumstantial” evidence of certain pornography violations, but those are no
doubt also the same jurisdictions that continue to maintain those evidentiary distinctions,
unlike West Virginia.
                                             2
the weight or value to be given to either direct or circumstantial evidence. Nor is a greater

degree of certainty required of circumstantial evidence than of direct evidence. You should

weigh all the evidence in the case.” See CRIMINAL LAW INSTRUCTIONS MANUAL FOR

THE STATE OF WEST VIRGINIA, § 5.04 7th edition, 2018.




              This Court’s syllabus points should be crafted in a manner consistent with

our precedent and should not cast uncertainty on long-established principles. Signed

opinions containing original syllabus points have the highest precedential value because

the Court uses “uses original syllabus points to announce new points of law or to change

established patterns of practice by the Court”; therefore, legal accuracy is crucial. State v.

McKinley, 234 W. Va. 143, 153, 764 S.E.2d 303, 313 (2014). The majority’s inclusion of

this evidentiary distinction is particularly troubling in that it may suggest that the Court is

modifying our existing law as cited herein. That was not the intention of the Court, but

the syllabus point as stated leaves that in doubt.2



              Accordingly, I believe the new syllabus point, properly phrased, should read:

                     In a prosecution for a violation of West Virginia Code
              § 61-8C-3(a)(2014), images of minors engaged in sexually
              explicit conduct found in temporary Internet cache files on a
              defendant’s computer are evidence of constructive

       2
          Moreover, the majority’s unnecessary insistence upon including “pro[of] beyond
a reasonable doubt” twice in the syllabus point—a standard well-known and obviously
applicable to the elements of any criminal offense—almost suggests that only this
particular facet or this factual predicate of a violation of West Virginia Code § 61-8C-3(a)
need meet that burden. Surplusage such as this creates needless imprecision and lack of
clarity that does the bench and bar a disservice.
                                                3
“possession,” where the defendant knew of the cached images
and exercised dominion and control over them. The cache files
may otherwise constitute evidence that the defendant violated
West Virginia Code § 61-8C-3(a) by sending or causing to be
sent or distributed, exhibiting, or electronically accessing with
intent to view or display or transporting such material.

With consideration of the foregoing, I concur.




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