                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    June 9, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 15-1239 (Berkeley County15-F-42)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Andrew W. Castaneira,
Defendant Below, Petitioner


                             MEMORANDUM DECISION
       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


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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 has

       1
          “‘[P]eer-to-peer networks . . . [permit] users’ computers [to] communicate directly with
each other, not through central servers.’ Metro–Goldwyn–Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 919–20, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). . . . [T]he use of peer-to-peer
file sharing programs . . . is a common and popular means by which child pornography is
shared.” United States v. Blauvelt, 638 F.3d 281, 290 (4th Cir. 2011).


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intercourse 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:

               A person is guilty of possession of child pornography depicting violence
       against a child when that person knowingly and willfully possesses or
       electronically accesses with intent to view any material visually portraying a
       minor engaged in any sexually explicit conduct that depicts violence to a child.

              In the absence of any definition of the intended meaning of words or terms
       used in an instruction you may give those words their common, ordinary and
       accepted meaning in the connection in which they are used.

               The jury may find that material “depicts violence” if said material depicts
       the commission of sexual assault. In West Virginia, sexual assault in the first
       degree is committed when a person engages in sexual intercourse or sexual
       intrusion with another person and in so doing inflicts serious bodily injury upon
       anyone; or employs a deadly weapon in the commission of the act, or a person
       being fourteen years old or more, engages in sexual intercourse or sexual
       intrusion with another person who is younger than twelve years old and is not
       married to that person.

              Sexual assault in the second degree is committed when a person engages
       in sexual intercourse or sexual intrusion with another person without the person’s
       consent, and the lack of consent results from forcible compulsion; or such person
       [] engages in sexual intercourse or sexual intrusion with another person who is
       physically helpless.



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               Sexual intercourse means any act between persons involving penetration,
       however slight, of the female sex organ by the male sex organ or involving
       contact between the sex organs of one person and the mouth or anus of another
       person.

               Sexual intrusion means any act between persons involving penetration,
       however slight, of the female sex organ or of the anus of any person by an object
       for the purpose of degrading or humiliating the person so penetrated or for
       gratifying the sexual desire of either party.

        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 definition of “depicts
violence” renders meaningless the aggravated penalty found in West Virginia Code § 61-8C-3(d)
because, under that definition all material portraying the sexual assault of a child “depicts
violence.”

       “[T]he question of whether a jury was properly instructed is a question of law, and the
review is de novo.” Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 281, 489 S.E.2d 257, 258
(1996). Further,

       [a] trial court’s instructions to the jury must be a correct statement of the law and
       supported by the evidence. Jury instructions are reviewed by determining whether
       the charge, reviewed as a whole, sufficiently instructed the jury so they
       understood the issues involved and were not mislead by the law. A jury
       instruction cannot be dissected on appeal; instead, the entire instruction is looked
       at when determining its accuracy. A trial court, therefore, has broad discretion in
       formulating its charge to the jury, so long as the charge accurately reflects the
       law. Deference is given to a trial court’s discretion concerning the specific
       wording of the instruction, and the precise extent and character of any specific
       instruction will be reviewed only for an abuse of discretion.

Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

        West Virginia Code § 61-8C-3(a) provides that, “[a]ny person who, knowingly and
willfully, sends or causes to be sent or distributes, exhibits, possesses, electronically accesses
with intent to view or displays or transports any material visually portraying a minor engaged in

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any sexually explicit conduct is guilty of a felony.” West Virginia Code § 61-8C-3(d) further
provides, in relevant part, that

       any person who violates the provisions of subsection (a) of this section when the
       conduct involves six hundred or more images or depicts violence against a child
       or a child engaging in bestiality shall, upon conviction, be imprisoned in a state
       correctional facility for not less than five nor more than fifteen years or fined not
       more than $25,000, or both.

(Emphasis added.)

        The Legislature did not define “depicts violence” against a child as that term is used in
West Virginia Code § 61-8C-3(d). However, we have said, “[w]hen a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such cases it is the duty of the courts not to construe but to apply the statute.” Syl.
Pt. 5, State v. Gen. Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353
(1959). We have also held that “[u]ndefined words and terms used in a legislative enactment will
be given their common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen
v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).

        The common and ordinary meaning of “violence” is “the unlawful exercise of physical
force or intimidation by the exhibition of such force.” New Oxford American Dictionary 1931
(2010). The video published to the jury at petitioner’s trial depicted an adult male digitally
penetrating and raping a four to seven-year-old girl. It also shows the female child performing
oral sex upon the adult male. These acts satisfy the definition of sexual assault in the first degree
pursuant to West Virginia Code § 61-8B-3(a)(2), and sexual assault in the second degree
pursuant to West Virginia Code § 61-8B-4(a). Thus, the acts depicted on the video “depict
violence” because they show “the unlawful exercise of physical force.” For this reason, we reject
petitioner’s argument that the sexual assaults depicted in the video were insufficiently violent to
justify an enhanced sentence pursuant to West Virginia Code § 61-8C-3(d).

        Federal courts have defined “depiction of violence” with regard to 18 United States Code
§ 2252, the federal act regarding the receipt or possession of child pornography. Specifically, the
United States Courts of Appeals for the Seventh and Eleventh Circuits have held that materials
depicting the sexual assault of a child qualify for a “depiction of violence” sentence enhancement
under the United States Sentencing Commission Guidelines, U.S.S.G. 2G2.2(b)(3). See U.S. v.
Myers, 355 F.3d 1040, 1043 (7th Cir. 2004) (video of adult male engaging in vaginal intercourse
with five to eight-year-old child was “violent” for the purposes of U.S.S.G. 2G2.2(b)(3), because
it would have been painful for the child); U.S. v. Lyckman, 235 F.3d 234, 240 (5th Cir. 2000)
(holding “when the sexual act depicted is the physical penetration of a young child by an adult
male, . . . [s]uch conduct is . . . sufficiently likely to cause pain and injury so as to qualify as
‘sadistic’ or ‘violent’ for purposes of the guideline [§ 2G2.2(b)(3) ]”); U.S. v. Garrett, 190 F.3d
1220, 1224 (11th Cir. 1999) (photographic image depicting subjection of young child to painful
sexual acts, such as vaginal or anal penetration by adult males, is sadistic under § 2G2.2(b)(3)).
Accordingly, in this case and on these facts, we find that the circuit court did not err in



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instructing the jury that “material ‘depicts violence’ if said material depicts the commission of
sexual assault.”2

        In petitioner’s second assignment of error, he argues that he received ineffective
assistance of trial counsel. We have oft opined,

       “‘[i]t is the extremely rare case when this Court will find ineffective assistance of
       counsel when such a charge is raised as an assignment of error on a direct appeal.
       The prudent defense counsel first develops the record regarding ineffective
       assistance of counsel in a habeas corpus proceeding before the lower court, and
       may then appeal if such relief is denied. This Court may then have a fully
       developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.’ Syl. Pt. 10, State v. Triplett, 187 W.Va.
       760, 421 S.E.2d 511 (1992).” Syl. Pt. 10, State v. Hutchinson, 215 W.Va. 313,
       599 S.E.2d 736 (2004).

Syl. Pt. 9, State v. Woodson, 222 W.Va. 607, 611, 671 S.E.2d 438, 442 (2008). Accordingly, we
decline petitioner’s request to rule on the effectiveness of his trial counsel in this direct appeal.

       Petitioner’s last five assignments of error, numbers three through seven, were raised in
his reply to the State’s responsive pleading pursuant to Rule 10(c)(10)(b) of the Rules of
Appellate Procedure.3 In his third assignment of error, petitioner challenges the validity of the



       2
          In a similar vein, this Court has defined the phrase “an act of violence against a person”
with regard to West Virginia Code § 27-6A-3(g) and -3(h) (2007), regarding the competency of a
criminal defendant to stand trial. Specifically, we have held that “[an] ‘act of violence against a
person’ within the meaning of W.Va. Code § 27–6A–3 (2007) encompasses acts that indicate the
incompetent defendant poses a risk of physical harm, severe emotional harm, or severe
psychological harm to children.” Syl. Pt. 2, State v. George K., 233 W.Va. 698, 760 S.E.2d 512,
515 (2014); accord, Syl. Pt. 4. State v. Riggleman, __W.Va.__, 798 S.E.2d 846 (2017)
(discussing criminal competency of defendant and finding possession of child pornography
under West Virginia Code § 61-8C-3 to be an “act of violence against a person” because it
“derives from and is proximately linked to physical, emotional, and psychological harm to
children”). However, we have also said that “the hearing sanctioned by West Virginia Code §
27-6A-6 is “civil in nature” and “is directed at the joint purposes of protecting the public and
ensuring appropriate treatment for individuals who are both incompetent and criminally violent.”
State v. Gum, 234 W.Va. 263, 269, 764 S.E.2d 794, 800 (2014). Clearly, George K. and
Riggleman construe the criminal competency statute and not the child pornography statute at
issue in the instant appeal. Moreover, both cases construe the competency statute under a more
lenient, civil standard of statutory construction. Nevertheless, our holdings in both cases lend
credence to the correctness of the jury instruction at issue herein.
       3
           Rule 10(c)(10)(b) of the Rule of Appellate Procedure provides as follows:

                                                                            (continued . . . )
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arch warrant that allowed the police to search his apartment. In his fourth assignment of error,
petitioner challenges the validity, but not the sufficiency, of the evidence presented against him
at trial. In his fifth assignment of error, petitioner asserts his speedy trial rights were “not fully
protected.” In his sixth assignment of error, petitioner asserts that the system for the appointment
of counsel to indigent defendants is flawed and unconstitutional. Finally, in his seventh
assignment of error, petitioner makes an additional claim of ineffective assistance of trial
counsel.

        Petitioner’s third, fourth, fifth, and sixth assignments of error allege claims that were not
raised before the trial court. As the Court has repeatedly cautioned, “‘silence may operate as a
waiver of objections to error and irregularities at the trial which, if seasonably made and
presented, might have been regarded as prejudicial.’ State v. Grimmer, 162 W.Va. 588, 595, 251
S.E.2d 780, 785 (1979), overruled on other grounds by State v. Petry, 166 W.Va. 153, 273
S.E.2d 346 (1980).” State v. Proctor, 227 W.Va. 352, 359, 709 S.E.2d 549, 556 (2011). Further,
“‘[o]ne of the most familiar procedural rubrics in the administration of justice is the rule that the
failure of a litigant to assert a right in the trial court likely will result’ in the imposition of a
procedural bar to an appeal of that issue.” State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613,
635 (1996) (citations omitted). Hence, we find petitioner has waived his third, fourth, fifth, and
sixth assignments of error.

        As for petitioner’s seventh assignment of error that raises an additional claim of
ineffective assistance of trial counsel, we refer to our response to the second assignment of error
herein.

       Accordingly, for the foregoing reasons, we affirm petitioner’s conviction.




                                                                                           Affirmed.

ISSUED: June 9, 2017




       In extraordinary circumstances, if counsel is ethically compelled to disassociate
       from the contentions presented in the brief, counsel must preface the brief with a
       statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
       inject disclaimers or argue against the client’s interests. If counsel is ethically
       compelled to disassociate from any assignments of error that the client wishes to
       raise on appeal, counsel must file a motion requesting leave for the client to file a
       pro se supplemental brief raising those assignments of error that the client wishes
       to raise but that counsel does not have a good faith belief are reasonable and
       warranted.


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CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis




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