State of West Virginia v. Earl Edwin Ross II, 15-1119

Earl Edwin Ross II was indicted in 2009 on 55 counts of possession of material depicting minors in sexually explicit conduct (one count per image).
Ross filed a pretrial motion to dismiss arguing mere possession was not a crime, but did not press for a pretrial ruling after changing counsel; a pretrial motions hearing occurred but the record does not show the motion was raised then.
A jury convicted Ross on all 55 counts based on images found on his computer; he was sentenced to a cumulative 36-year prison term and resentenced in 2015.
At sentencing, new counsel renewed the motion to dismiss; the circuit court refused to reconsider it, ruling the motion was waived or implicitly denied for lack of a timely pretrial ruling.
Ross appealed, arguing (1) the court erred by failing to rule on the pretrial motion (violating W.Va. R. Crim. Proc. 12 and due process) and (2) his multiple convictions violated double jeopardy because possession of one computer should be one unit of prosecution.
The Supreme Court of Appeals affirmed, holding Ross waived the procedural challenge by failing to press for a pretrial ruling and that each image constituted a separate unit of prosecution under the statute, so no double jeopardy violation occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to rule on pretrial motion to dismiss	Ross: court violated Rule 12 by not ruling pretrial and denied due process	State: Ross waived the motion by failing to press for a pretrial ruling	Waived: counsel’s failure to seek a pretrial ruling waived the motion; no preserved due process claim
Whether possession of multiple images on one device is multiplicitous (double jeopardy)	Ross: one computer = one unit of prosecution, so multiple counts violate double jeopardy	State: each image is a separate instance of the offense under §61‑8C‑3	Each image is a separate violation; no double jeopardy violation

State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (standard of review for circuit court rulings)
State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (failure to press for a ruling on Rule 12 motion constitutes waiver)
State v. Moran, 168 W.Va. 688, 285 S.E.2d 450 (defense counsel must bring pretrial motions to court's attention or risk waiver)
State v. Shingleton, 790 S.E.2d 505 (each image on a device can constitute a separate possession offense under §61‑8C‑3)
State v. Goins, 231 W.Va. 617, 748 S.E.2d 813 (unit‑of‑prosecution analysis governs whether multiple convictions for one statutory provision are permissible)