State of West Virginia v. William B. Shingleton, 237 W. Va. 669

Background

In April 2010 a ten-year-old (J.S.) handed a flash drive to a teenager (L.C.); when L.C. opened it pornographic images appeared and J.S. said he had "accidentally grabbed his dad's" flash drive. The drive was turned over to police.
FBI forensic analysis found child pornography on the flash drive and on a desktop computer with username "Bill;" 20 images admitted at trial were matched to NCVIP databases; timestamps showed downloads over years.
Petitioner William Shingleton gave a recorded statement admitting use of a program that downloaded thousands of pornographic files, acknowledged sometimes seeing images he "was not supposed to be looking at," and said he kept "young looking girls." He claimed some child images downloaded "accidentally."
Dr. Joan Phillips, an undisputed State expert in pediatrics/child abuse, testified using Tanner staging that the 20 images depicted children (many age 13 or younger); defense did not object or cross-examine her testimony.
A jury convicted Shingleton on 20 counts of possession of material visually portraying a minor in sexually explicit conduct; a recidivist enhancement was imposed and later adjusted by post-sentencing orders culminating in a jointly proposed second amended sentencing order imposing an aggregate 17-year term.
On appeal Shingleton challenged: admissibility of Dr. Phillips' age-opinion testimony, sufficiency of evidence as to intent/knowledge, admission of J.S.'s out-of-court statements (hearsay/Confrontation Clause), double jeopardy/multiple punishments, his absence when the second amended sentencing order was entered, and whether he could elect sentencing under a 2014 statutory amendment.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Shingleton)	Held
Admissibility of expert testimony (Daubert)	No plain error; defense never objected at trial so no Daubert hearing was required; Dr. Phillips was qualified and her testimony admissible under W.Va. R. Evid. 702	Trial court failed its gatekeeping role and should have excluded Dr. Phillips' Tanner-staging age opinions as unreliable	No plain error. Admission upheld; defense failure to object waived issue and record lacked basis for sua sponte Daubert exclusion
Sufficiency of evidence to prove knowledge/intent to possess child images	Evidence permitted inference Shingleton knowingly possessed images: his admissions about downloads, his statements preferring young-looking girls, the forensic showing the 20 images were present and not deleted	Statute lacked clear scienter language as to intent to possess images of minors; downloads could be accidental; State proved only downloads generally, not knowledge of minors in specific images	Conviction sustained. Viewed favorably to prosecution, evidence sufficient for jury to find knowing possession of the 20 images
Hearsay / Confrontation Clause (J.S.'s statements to L.C.)	Statements were non-testimonial spontaneous statements (present sense impression/excited utterance); even if testimonial, harmless given other evidence and forensic matches	Admission denied right to confront — prosecution relied on L.C.'s recounting that J.S. said the drive belonged to his father; J.S. was available but not called	Waived by failure to object re: Confrontation Clause; statements were non-testimonial and admissible as excited utterances; no Crawford violation in any event
Double jeopardy / unit of prosecution (multiple counts for multiple images)	Each image is a separate "material" — legislative intent supports separate unit of prosecution for each image; no double jeopardy	"Any material" means the medium or aggregate possession; charging 20 counts for images on one drive punished the same unit multiple times	No double jeopardy. Each image is a separate unit of prosecution; convictions on 20 counts permissible
Challenge to second amended sentencing order (entry outside defendant's presence & multiple punishments)	Entry corrected a technical recidivist error without increasing the aggregate lawful sentence; no need for a new hearing on purely legal correction	Entry outside his presence increased his sentence by converting consecutive structure (from counts 1–5 to 1–6) adding two years; violated right to be present and double jeopardy	No violation. Defendant had prior sentencing hearings; the jointly proposed order corrected legal error under Rule 35(a); defendant need not be present for purely legal corrections; aggregate sentence unchanged so no double jeopardy
Application of 2014 statutory amendment (mitigated penalties)	The amended statute was not retroactive; the penalty in effect at time of offense controls; Cline is overruled to the extent inconsistent	Defendant argued he could elect resentencing under more lenient 2014 statute	Court holds penalties in effect at time of criminal conduct apply; if amendment takes effect before sentencing defendant may elect mitigated penalty; Cline overrulled where inconsistent

Key Cases Cited

State v. Guthrie, 194 W.Va. 657 (W.Va. 1995) (standard for reviewing sufficiency of evidence in criminal cases)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements and Confrontation Clause rule)
State v. Mechling, 219 W.Va. 366 (W.Va. 2006) (applying Crawford in West Virginia and defining testimonial statements)
State v. Miller, 194 W.Va. 3 (W.Va. 1995) (plain error doctrine elements)
State v. Sutphin, 195 W.Va. 551 (W.Va. 1995) (excited utterance hearsay exception factors)
State v. Green, 207 W.Va. 530 (W.Va. 2000) (analysis of "any"/singular unit of prosecution for multiple-count convictions)
State v. Cline, 206 W.Va. 445 (W.Va. 1999) (overruled in part by this opinion on electing mitigated penalties)
State v. Goins, 231 W.Va. 617 (W.Va. 2013) (unit of prosecution governs multiple convictions under same statute)