State of West Virginia v. Alexander Paul Delorenzo ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_____________
November 17, 2022
No. 21-0456 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
V.
ALEXANDER PAUL DELORENZO,
Defendant Below, Petitioner.
________________________________________________
Appeal from the Circuit Court of Marshall County
The Honorable Jeffrey D. Cramer, Judge
Criminal Action No. 21-F-4
AFFIRMED
________________________________________________
Submitted: September 27, 2022
Filed: November 17, 2022
William E. Galloway, Esq. Patrick Morrisey, Esq.
Galloway Law Office Attorney General
Weirton, West Virginia Michael R. Williams, Esq.
Attorney for the Petitioner Senior Deputy Solicitor General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE BUNN delivered the Opinion of the Court.
CHIEF JUSTICE HUTCHISON and JUSTICE WOOTON dissent and may write
separately.
SYLLABUS BY THE COURT
1. “The admissibility of testimony by an expert witness is a matter within
the sound discretion of the trial court, and the trial court’s decision will not be reversed
unless it is clearly wrong.” Syllabus point 6, Helmick v. Potomac Edison Co., 185 W. Va.
269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S. Ct. 301, 116 L. Ed. 2d 244(1991).
2. “‘The jury is the trier of the facts and in performing that duty it is the
sole judge as to the weight of the evidence and the credibility of the witnesses.’ Syl. Pt. 2,
State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).” Syllabus point 2, State v. Martin,
224 W. Va. 577, 687 S.E.2d 360 (2009) (per curiam).
3. The trial court has an obligation to all parties to ensure that the trial is
conducted in a fair manner. This obligation includes a duty to supervise the direct and
cross-examination of each party’s witnesses.
4. “‘An appellant must carry the burden of showing error in the
judgment of which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.’ Syllabus Point 5, Morgan
i
v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966).” Syllabus point 2, In re Visitation of
L.M., 245 W. Va. 328, 859 S.E.2d 271 (2021).
5. “‘The obligation of police to warn a suspect of both his right to
counsel and his right against self-incrimination applies only to custodial or other settings
where there is a possibility of coercion.’ Syl. pt. 2, State v. Andriotto, 167 W. Va. 501, 280
S.E.2d 131 (1981).” Syllabus point 5, State v. Hardway, 182 W. Va. 1, 385 S.E.2d 62(1989).
ii
BUNN, Justice.
Petitioner Alexander Paul Delorenzo appeals the Circuit Court of Marshall
County’s May 7, 2021 order sentencing him to five to fifteen years in prison after a jury
found him guilty of a single count of unlawfully, knowingly, and willfully sending or
causing to be sent and/or possessing material depicting minors engaged in sexually explicit
conduct, namely, 600 or more images of minors engaged in sexually explicit conduct or
depicting violence against a child, in violation of West Virginia Code § 61-8C-3(a). He
raises six issues on appeal. Three of the issues relate to the circuit court’s evidentiary
rulings, including the circuit court’s ruling excluding Mr. Delorenzo’s expert witness on
Mr. Delorenzo’s diagnoses of Autism Spectrum Disorder (“ASD”) and Obsessive
Compulsive Disorder (“OCD”), the testimony of the State’s expert witness, and the visual
images introduced by the State. Another claimed error involves the circuit court’s denial
of his motion to dismiss the superseding indictment or disqualify the prosecutor’s office.
He further argues the circuit court erred in finding that his statement to law enforcement
was voluntary. His final claimed error concerns the circuit court admonishing Mr.
Delorenzo to follow the court’s rules while he testified before the jury. As explained below,
we conclude that the circuit court committed no error and affirm Mr. Delorenzo’s
conviction.
1
I.
FACTUAL AND PROCEDURAL HISTORY
In January 2019, the West Virginia State Police discovered an internet
protocol (“IP”) address using peer-to-peer software share significant amounts of child
pornography on the internet. Law enforcement then determined that the IP address was
associated with Mr. Delorenzo’s physical address and executed a search warrant at his
apartment. During the search, law enforcement seized his computer and Mr. Delorenzo
participated in an interview.
A Marshall County grand jury indicted Mr. Delorenzo for unlawfully,
knowingly, and willfully possessing 600 or more images of minors engaged in sexually
explicit conduct on or about February 19, 2019, in violation of West Virginia Code
§ 61-8C-3(a). 1 Months later, the grand jury returned a superseding indictment, alleging that
on or between July 31, 2018, and February 20, 2019, he unlawfully, knowingly, and
willfully sent or caused to be sent and/or possessed child pornography, in violation of West
1
West Virginia Code § 61-8C-3(e) defines how videos of a “minor engaged
in any sexually explicit conduct” should be counted for the purposes of determining the
number of images:
For purposes of this section each video clip, movie or similar
recording of five minutes or less shall constitute seventy-five
images. A video clip, movie or similar recording of a duration
longer than five minutes shall be deemed to constitute seventy-
five images for every two minutes in length it exceeds five
minutes.
2
Virginia Code § 61-8C-3(a). The superseding indictment alleged that there were 600 or
more images depicting minors engaged in sexually explicit conduct or images depicting
violence against a child. Mr. Delorenzo moved to dismiss the superseding indictment or
disqualify the Marshall County Prosecuting Attorney’s Office; the circuit court denied his
motion.
During the course of the proceedings, Michael J. Marshall, Ph.D, diagnosed
Mr. Delorenzo with ASD and OCD. Mr. Delorenzo disclosed Dr. Marshall as an expert
witness for trial. As explained in more detail below, the circuit court ultimately precluded
Dr. Marshall from testifying at trial because his proffered testimony was “improper and
not relevant at the trial of this case.”
The State filed a motion to determine voluntariness regarding Mr.
Delorenzo’s statement to law enforcement, and Mr. Delorenzo filed a motion to suppress
that statement. At the hearing on those motions, the circuit court denied Mr. Delorenzo’s
request to limit the State’s cross-examination to the issue of voluntariness during his
hearing testimony. After considering the evidence, the circuit court found that the statement
was voluntary and permitted the State to introduce the recorded interview at trial.
The case was tried before a jury. The State presented testimony from law
enforcement and a digital forensic evidence expert, and introduced evidence of child
3
pornography sent from Mr. Delorenzo’s computer, as well as evidence of child
pornography found directly on his computer. Mr. Delorenzo testified on his own behalf
and offered testimony from his friends and family.
The jury convicted Mr. Delorenzo of the charge in the superseding
indictment. The circuit court sentenced him to five to fifteen years imprisonment. This
appeal followed. Additional relevant facts are provided below with our discussion of the
alleged errors.
II.
STANDARD OF REVIEW
Mr. Delorenzo asserts six assignments of error that have different review
standards. We will provide the standard of review for each issue in turn. See State v. Benny
W., 242 W. Va. 618, 622, 837 S.E.2d 679, 683 (2019) (dispensing with our usual standard
of review section because each of the assignments of error had its own review criteria).
III.
DISCUSSION
Mr. Delorenzo contends that the circuit court erred by: (1) excluding expert
testimony regarding the impact of his ASD and OCD diagnoses on his behaviors, character
traits, state of mind, and credibility; (2) failing to dismiss the superseding indictment or
4
disqualify the Marshall County Prosecuting Attorney’s Office related to information
obtained during a court-ordered mental evaluation; (3) denying his motion to suppress his
recorded statement to law enforcement after refusing to limit his cross-examination to
voluntariness; (4) permitting the State’s digital forensic analyst to testify beyond the scope
of her expertise; (5) admitting videos and images from the State’s child pornography library
not found directly on petitioner’s computer; and (6) admonishing Mr. Delorenzo while he
testified at trial. We address the first and sixth alleged errors together, as they involve Mr.
Delorenzo’s diagnoses of ASD and OCD. We will then examine the remaining alleged
errors in turn.
A. Mr. Delorenzo’s Diagnoses of Autism Spectrum Disorder and
Obsessive Compulsive Disorder
1. Expert Trial Testimony Regarding Diagnoses. Mr. Delorenzo first argues
that the circuit court erred by preventing Dr. Marshall from testifying at trial regarding Mr.
Delorenzo’s diagnoses of ASD and OCD. Mr. Delorenzo contends that this testimony
would have provided the jury with context regarding his character traits, credibility, and
state of mind, as well as an assessment of “his subjective perceptions of what he was doing
when he engaged in research on the dark web.” He also maintains that the testimony would
“rebut the conclusion that because he went on the dark web, he ‘knowingly and willfully’
sent or possessed child pornography.” We find no error in the circuit court’s exclusion of
Mr. Delorenzo’s proffered expert testimony.
5
The record before this Court relating to Dr. Marshall’s expert testimony is
limited to two circuit court orders and a transcript of his testimony from the sentencing
hearing. The parties failed to include in the appendix any expert reports, expert disclosures,
pretrial hearing transcripts, or underlying motions and responses. Unquestionably, the
sentencing hearing transcript was not before the circuit court when it ruled that Dr.
Marshall could not testify at trial. To the extent that Mr. Delorenzo asks us to consider the
sentencing testimony from trial, we decline to do so. When reviewing the trial court’s
determination to exclude this expert testimony, we are limited to the record before the trial
court at the time of its determination, so we will not consider the expert’s sentencing
testimony when determining whether the trial court erred. See State v. Campbell, 246
W. Va. 230, ___, 868 S.E.2d 444, 454 (2022) (refusing to address the voluntariness of a
defendant’s statement when the circuit court did not address that issue and noting that “[i]n
determining whether the circuit court erred in declining to suppress [defendant’s recorded
statement], we are constrained to consider only arguments and evidence that were before
the circuit court at that time.”). The facts described here we glean only from those two
orders.
In a discovery response, Mr. Delorenzo disclosed that Dr. Marshall would
testify at trial regarding Mr. Delorenzo’s diagnoses of ASD and OCD. Mr. Delorenzo
stated that he anticipated that Dr. Marshall would testify in accordance with his
supplemental report that, due to “Mr. Delorenzo’s simultaneous presence of two mental
6
disorders, namely ASD and OCD, he will hyper-focus on a topic he is motivated to
investigate . . . with a lack of appreciating whether something is right or wrong.” The State
then moved the court in limine to prohibit the expert’s testimony or to have Mr. Delorenzo
evaluated pursuant to West Virginia Code § 27-6A-4, which allows a court to require a
criminal responsibility or diminished capacity evaluation in certain circumstances. 2 In
response to the State’s motion, Mr. Delorenzo argued that his expert would testify that he
lacked the capacity to form the mens rea to commit the alleged acts, but that he was not
presenting a diminished capacity defense.
The circuit court rejected Mr. Delorenzo’s argument that he was not
presenting a diminished capacity defense as “not well-founded.” The court denied the
State’s motion to exclude Dr. Marshall and found probable cause to believe that Mr.
Delorenzo’s criminal responsibility or diminished capacity would be a significant factor to
his defense. The court ordered the examination requested by the State, and the evaluator
determined that Mr. Delorenzo was unable to assert a diminished capacity or lack of
criminal responsibility defense.
2
In West Virginia, a diminished capacity defense allows “a defendant to
introduce expert testimony regarding a mental disease or defect that rendered the defendant
incapable, at the time the crime was committed, of forming a mental state that is an element
of the crime charged,” although it is usually asserted “when the offense charged is a crime
for which there is a lesser included offense.” Syl. pt. 3, in part, State v. Joseph, 214 W. Va.
525, 590 S.E.2d 718 (2003).
7
The State again moved the circuit court to prohibit Dr. Marshall’s testimony.
In its order granting the State’s motion, the circuit court explained:
In the most recent pleadings and at the recent pre-trial
hearing, the Defendant has shifted from his initial assertions
regarding the nature of Dr. Marshall’s testimony to argue that
Dr. Marshall will testify as to the defendant’s credibility, his
subjective perceptions, to explain his conduct, and to assert the
defendant was doing “non-criminal research on the dark web.”
The Court can only assume that if permitted, Dr. Marshall
would opine that the Defendant’s “research” was “non-
criminal” because of his mental diagnoses.
(Footnote omitted).
The circuit court observed in a footnote that Mr. Delorenzo filed no
supplemental expert disclosures pursuant to Rule 16(b)(1)(C) of the West Virginia Rules
of Criminal Procedure and Rule 32.03(b)(6) of the West Virginia Trial Court Rules. 3 These
rules require a defendant to disclose expert material if requested by the State, including “a
written summary of expert testimony the defendant intends to use” under Rules 702, 703,
and 705 of the West Virginia Rules of Evidence, which relate to expert testimony. W. Va.
R. Crim. P. 16(b)(1)(C). This summary must include “the opinions of the witnesses, the
bases and reasons therefor, and the witnesses’ qualifications.” Id.3
Rule 32.03(b)(6) of the West Virginia Trial Court Rules cross-references
Rule 16(b)(1)(C) of the West Virginia Rules of Criminal Procedure.
8
The circuit court stated that the proposed expert testimony was “attempting
to assert a diminished capacity/lack of criminal responsibility defense, which is
unsupported by both the [c]ourt ordered evaluation . . . and Dr. Marshall himself.”
Ultimately, the circuit court concluded that the proposed expert testimony was “improper
and not relevant at the trial of this case.”4
We review a circuit court’s decision to admit or exclude expert testimony
under an abuse of discretion standard, typically giving circuit courts a “wide berth” for this
type of discretionary judgment. State v. LaRock, 196 W. Va. 294, 306, 470 S.E.2d 613, 625
(1996). “The admissibility of testimony by an expert witness is a matter within the sound
discretion of the trial court, and the trial court’s decision will not be reversed unless it is
clearly wrong.” Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d
700 (1991), cert. denied, 502 U.S. 908, 112 S. Ct. 301, 116 L. Ed. 2d 244 (1991). See, e.g.,
Syl. pt. 1, State v. Lockhart, 208 W. Va. 622, 542 S.E.2d 443 (2000) (quoting, among other
cases, Syl. pt. 6, Helmick, 185 W. Va. 269, 406 S.E.2d 700). See also State v. Black, 227
W. Va. 297, 308, 708 S.E.2d 491, 502 (2010) (determining that the exclusion of
defendant’s expert witness testimony was not clearly wrong and was within the “sound
discretion of the trial court”). An abuse of discretion generally occurs “‘when a material
4
At trial, Mr. Delorenzo, his friends, and his father testified about his
personality and his diagnoses of ASD and OCD, including about his “trouble with even
people getting close to him,” his interest in “heavily” researching topics, his sense of order,
and how he could “come off as condescending sometimes.”
9
factor deserving significant weight is ignored, when an improper factor is relied upon, or
when all proper and no improper factors are assessed but the circuit court makes a serious
mistake in weighing them.’” LaRock, 196 W. Va. at 307, 470 S.E.2d at 626 (quoting Gentry
v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995)).
Mr. Delorenzo argues that the circuit court erred by excluding his expert
testimony when Dr. Marshall would have provided testimony regarding the impact of his
ASD and OCD diagnoses on his behavior, which he further asserts would be relevant to
his character traits, credibility, and mental state. We address each of these types of
testimony in turn.
Mr. Delorenzo claims that his expert would “give the jury a context” to
evaluate his “character traits” and references traits common to individuals with ASD
diagnoses. 5 Mr. Delorenzo has failed to direct this Court to any instance when he raised to
5
While he references the expert’s sentencing testimony about the behaviors
of individuals diagnosed with ASD that a jury could misunderstand or misinterpret, as we
have previously explained, we will not consider the expert’s sentencing testimony when
determining whether the circuit court erred in excluding the expert’s testimony from trial.
See State v. Campbell, 246 W. Va. 230, ___, 868 S.E.2d 444, 454 (2022).
Still, had he raised the issue of expert testimony relating to his behaviors and
personal presentation before the circuit court, this evidence still fails to fit into the confines
of admissible expert testimony. Rule 702 of the West Virginia Rules of Evidence permits
the admission of expert testimony if the testimony “will assist the trier of fact to understand
the evidence or to determine a fact in issue.” W. Va. R. Evid. 702(a). There is no
“evidence” to understand regarding his personal presentation on the stand, and no “fact in
10
the circuit court, prior to trial, that his expert would testify regarding his character traits.
Instead, Mr. Delorenzo apparently argued to the circuit court before trial that the expert
would testify as to Mr. Delorenzo’s “credibility, his subjective perceptions, to explain his
conduct, and to assert the defendant was doing ‘non-criminal research on the dark web.’”
Furthermore, no mention of “character trait” evidence appears in either of the circuit
court’s orders regarding expert testimony. “[W]e are constrained to consider only
arguments and evidence that were before the circuit court at that time.” Campbell, 246
W. Va. at ___, 868 S.E.2d at 454 (refusing to address the voluntariness of the defendant’s
interview when it was not addressed by the circuit court). Accordingly, because character
trait evidence was not addressed by the circuit court, we decline to address whether the
circuit court erred by excluding Mr. Delorenzo’s expert from testifying regarding his
character traits. 6
issue” relating to his testimony or appearance. Sometimes witnesses are argumentative
with counsel or the judge. Sometimes they are submissive. A witness may appear selfish
and conceited. Witnesses may shift in their seats while testifying, while others stare at the
floor. Members of the jury do not leave their common sense at the door when evaluating
witnesses. We decline to extend this Rule to allow an expert to explain how such a
diagnosis may cause a witness to appear while testifying to a jury. See State v. Anderson,
789 N.W.2d 227, 236 (Minn. 2010) (finding, in part, that expert testimony regarding
defendant’s Asperger’s diagnosis (now incorporated into Autism Spectrum Disorder) was
not necessary to explain defendant’s “behavior, physical abilities, and his testimony” and
“whatever probative value the expert testimony would have had, it was substantially
outweighed by the danger of confusing the jury.”).
Typically, “character trait” evidence has a specific meaning within the West
6
Virginia Rules of Evidence. See W. Va. R. Evid. 404. A defendant may offer character
traits as evidence if they are pertinent to the crime charged. State v. Benny W., 242 W. Va.
618, 632, 837 S.E.2d 679, 693 (2019) (citing W. Va. R. Evid. 404(a)(2)(A)). See also Syl.
11
Mr. Delorenzo also unsuccessfully argues that circuit court erred because the
expert testimony was relevant to his credibility. Credibility determinations may not be
provided by an expert. State v. Martin, 224 W. Va. 577, 582, 687 S.E.2d 360, 365 (2009)
(per curiam). “‘The jury is the trier of the facts and in performing that duty it is the sole
judge as to the weight of the evidence and the credibility of the witnesses.’ Syl. Pt. 2, State
v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).” Syl. pt. 2, Martin, 224 W. Va. 577,
687 S.E.2d 360. In Martin, this Court found that the trial court erred by allowing the State’s
expert witness to testify that the main prosecution witnesses were “believable and
credible.” Id. at 583, 687 S.E.2d at 366. The only information in the record before this
Court is that Mr. Delorenzo asserted to the circuit court in a pleading or at a pretrial hearing
that his expert would testify about his credibility. As stated in Martin, expert testimony
regarding credibility “invade[s] the province of the jury.” Id. There is nothing in the record
to find error on the part of the circuit court by excluding expert testimony relating to Mr.
Delorenzo’s credibility.
pt. 7, id. This Court has found, for example, that a defendant’s character trait of honesty is
not pertinent to a sexual offense charge. Syl. pt. 8, id.; id. at 632, 837 S.E.2d at 693 (also
listing other cases noting non-pertinent traits to specific crimes). Moreover, “[i]n West
Virginia a criminal defendant may only use reputation evidence to prove character.” Syl.
pt. 4, State v. Gangwer, 169 W. Va. 177, 286 S.E.2d 389 (1982).
12
Finally, the circuit court did not err in excluding the expert testimony as it
related to Mr. Delorenzo’s mental state. On appeal, Mr. Delorenzo now makes an
insubstantial argument that the proposed expert testimony about his diagnoses was
relevant. He argues that the testimony would “rebut the conclusion” that because Mr.
Delorenzo “went on the dark web, he ‘knowingly and willfully’ sent or possessed child
pornography.”
Evidence is relevant when “(a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” W. Va. R. Evid. 401. Expert testimony, like any other type of
evidence, must be relevant for a trial court to admit the evidence. See Black, 227 W. Va. at
307-08, 708 S.E.2d at 501-02 (upholding circuit court’s exclusion of expert testimony
regarding false confessions when the court found defendant did not make a confession,
only a statement slightly against his interest). Rule 702 of the West Virginia Rules of
Evidence permits the admission of expert testimony if the testimony “will assist the trier
of fact to understand the evidence or to determine a fact in issue.” W. Va. R. Evid. 702(a);
see Lockhart, 208 W. Va. at 635-36, 542 S.E.2d at 456-57 (explaining that expert testimony
regarding a certain mental disorder may be admissible, on a case-by-case basis, when a
defendant asserts an insanity defense, but affirming the exclusion of the evidence in the
underlying case as the evidence was unreliable and would not have assisted the trier of
fact).
13
Mr. Delorenzo primarily urges us to rely on two cases from outside this
jurisdiction to conclude that the circuit court erred in excluding expert testimony about his
OCD and ASD diagnoses: State v. Burr, 948 A.2d 627 (N.J. 2008), and State v. Boyd, 143
S.W.3d 36 (Mo. Ct. App. 2004). Given the facts here, we do not find these cases persuasive.
The excluded expert testimony at issue in Boyd would have provided the jury with
information about why that defendant, with his diagnosis, could not have committed a
murder, while the excluded information in Burr related to that defendant’s abilities and
mental state surrounding his interactions with alleged victims. What little information we
have to consider regarding the expert testimony and Mr. Delorenzo’s mental state fails to
link his diagnoses with any limitations on his ability to commit the crime.
While our analysis is limited due to the scarce record, the proposed evidence
and Mr. Delorenzo’s argument miss an important step in the analysis of whether any of his
diagnoses affected his intent to commit the charged crime. The charge in the superseding
indictment required the State prove that Mr. Delorenzo knowingly and willfully sent, caused
to be sent, and/or possessed child pornography. See W. Va. Code § 61-8C-3(a). Our record
indicates that Mr. Delorenzo told the circuit court that his expert’s testimony would address
his subjective perceptions and that he was doing “non-criminal research on the dark web.” 7
Still, Mr. Delorenzo apparently never updated the initial expert disclosure
7
that Dr. Marshall would testify regarding his “lack of appreciating whether something is
14
The proposed testimony fails to connect his diagnoses to having any effect on—much less
negating—the mens rea of the alleged crime, knowingly and willfully possessing or sending
child pornography or his ability to commit the crime as charged. Rather, the expert
testimony may have been relevant to explain why Mr. Delorenzo would have committed
the crime as alleged, or went on the dark web—a more appropriate sentencing argument.
The trial court did not abuse its discretion in excluding this expert testimony from trial, as
it did not meet the threshold of assisting “the trier of fact to understand the evidence or to
determine a fact in issue.” See W. Va. R. Evid. 702(a).
2. Admonitions by the circuit court. The circuit court instructed Mr.
Delorenzo to follow its rules when he talked over objections and failed to answer “yes” or
“no” questions during cross-examination. Mr. Delorenzo now asserts that the circuit court
erred by admonishing him before the jury, unfairly prejudicing him and denying him a fair
trial. Mr. Delorenzo again argues that by preventing Dr. Marshall from testifying, in light
of the court’s admonitions, the jury likely misconstrued Mr. Delorenzo’s behavior while
testifying as being uncooperative.
During Mr. Delorenzo’s direct examination by his defense attorney, the
circuit court judge twice instructed him to stop talking over an objection, finally explaining
right or wrong,” even after a forensic evaluation determined that he could not assert a
diminished capacity defense.
15
that if “the witness” did not follow the court’s rules, his testimony would end.8 On cross
examination, the circuit court also instructed him to answer cross-examination questions
with “yes” or “no,” or the court would strike his testimony. 9
8
While we do not have an indication of the length of time Mr. Delorenzo’s
testimony lasted, the transcript of his direct examination was 72 pages. After Mr.
Delorenzo answered a question on direct examination while the court considered an
objection by the State, the court instructed him “Mr. Delorenzo, when there’s an objection,
you need to quit speaking.” As the direct examination continued, Mr. Delorenzo continued
to answer a question after the court sustained an objection by the State. The court again
instructed him, “Mr. Delorenzo, I’ve sustained the objection. You’re not permitted to
answer.” Mr. Delorenzo responded “I was just making a statement. I’m sorry.” The court
explained “You’re not allowed to just make statements. You have to answer questions.”
After his direct examination resumed, Mr. Delorenzo spoke over his counsel asking him
questions. The circuit court told counsel that “if the witness can’t follow the rules of the
court, your examination’s going to be concluded.”
9
After explaining that the court would strike his testimony and a brief bench
conference, the court directed Mr. Delorenzo as follows:
Mr. Delorenzo, I need to explain to you that right now
[the State] is asking you questions that he is looking for
particular answers from. Many of the questions he asks are
going to be able to be answered with a simple “yes” or “no.”
When [the State] is questioning you, you need to make
every effort to answer his questions with a simple “yes” or
“no.” When [defense counsel] has an opportunity to do what’s
called “redirect examine” you, then if you need to explain one
of your answers, he’ll go through that with you.”
After Mr. Delorenzo indicated that he understood, the court stated, “But with
regard to [the State’s] questions, if it’s a ‘yes’ or ‘no’ question, you need to just answer
‘yes’ or ‘no’ and leave it at that.”
16
This Court reviews the manner of a trial court conducting a trial under abuse
of discretion because “a trial judge has broad discretion in managing his or her docket,
including trial procedure and the conduct of trial.” State v. Davis, 232 W. Va. 398, 414,
752 S.E.2d 429, 445 (2013) (per curiam) (quoting Barlow v. Hester Industries, Inc., 198
W. Va. 118, 127, 479 S.E.2d 628, 637 (1996)).
A trial judge must “be extremely cautious not to intimate in any manner by
word, tone, or demeanor, his opinion upon any fact in issue.” State v. Thompson, 220W. Va. 398, 412, 647 S.E.2d 834, 848 (2007). Still, a court may instruct witnesses to follow
the rules of the court. See People v. Williams, 558 N.E.2d 1258, 1267 (Ill. App. 1990)
(explaining that a trial court instructing a defense expert to answer “yes” or “no” questions
“were not attempts to discredit the witness or the defense in general.”). In Thompson, this
Court found that the trial judge “abandoned his role of impartiality and neutrality” during
a trial. Thompson, 220 W. Va. at 412, 647 S.E.2d at 848. The judge extensively questioned
witnesses, asked seven questions of the defendant, and made comments that aided the
prosecution. Id. at 411-12, 647 S.E.2d at 847-48. This Court then determined that the judge
“seriously affected the fairness, integrity, and public reputation of the judicial
proceedings.” Id. at 412, 647 S.E.2d at 848. In contrast, here the trial court instructed Mr.
Delorenzo to follow the rules of the proceedings, like the court would any other witness,
and explained the consequences of not following those rules. The court did not ask
substantive questions of Mr. Delorenzo and matter-of-factly instructed Mr. Delorenzo to
17
adhere to the court’s directives. Like the court in Williams, these comments were within
the court’s discretion “and were not attempts to discredit” him or his defense. See Williams,
558 N.E.2d at 1267.
A court has “inherent authority to conduct and control matters before it in a
fair and orderly fashion.” Syl. pt. 2, in part, State v. Fields, 225 W. Va. 753, 696 S.E.2d
269 (2010). The trial court has an obligation to all parties to ensure that the trial is
conducted in a fair manner. This obligation includes a duty to supervise the direct and
cross-examination of each party’s witnesses. Mr. Delorenzo’s diagnoses do not alter the
trial court’s ability to manage the courtroom, and the transcripts do not reveal that the judge
was in any way prejudicial or inappropriate in his instructions to Mr. Delorenzo to follow
the rules that all witnesses must follow when testifying. For these reasons, we find that the
circuit court did not abuse its discretion in instructing Mr. Delorenzo to follow the rules of
the circuit court during his trial testimony.
B. Mr. Delorenzo’s Motion to Dismiss the Superseding Indictment or
Disqualify the Prosecuting Attorney’s Office
We now turn to Mr. Delorenzo’s argument that the circuit court erred by
failing to dismiss the superseding indictment or disqualify the Marshall County
Prosecuting Attorney’s Office. He alleges, without citation to the record, that he provided
information regarding attorney-client privileged trial strategy to the court-appointed mental
18
health evaluator; that this information was then turned over to the prosecutor; that this
information was the basis for the superseding indictment; and that this information could
have been redacted by the court before being sent to the prosecutor. The only evidence in
the appendix for this Court for review in connection with this assignment of error is the
circuit court’s four sentence order denying Mr. Delorenzo’s motion to dismiss the
indictment or, in the alternative, to disqualify the prosecutor’s office.
“[T]he responsibility and burden of designating the record is on the parties
and [] appellate review must be limited to those issues which appear in the record presented
to this Court.” State v. Honaker, 193 W. Va. 51, 56, 454 S.E.2d 96, 101 (1994) (footnote
omitted). We recently took as “‘non[-]existing all facts that do not appear in the [appendix]
record.’” See Hairston v. W. Va. Dep’t of Health & Hum. Res. Bd. of Rev., No. 20-0326,
2021 WL 982643, at *3 n.3 (W. Va. Mar. 16, 2021) (memorandum decision) (alteration in
original) (quoting Honaker, 193 W. Va. at 56 n.4, 454 S.E.2d at 101 n.4, and changing the
reference from “designated record” to “appendix.”). As we have explained,
“[a]n appellant must carry the burden of showing error
in the judgment of which he complains. This Court will not
reverse the judgment of a trial court unless error affirmatively
appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the
judgment.” Syllabus Point 5, Morgan v. Price, 151 W. Va.
158, 150 S.E.2d 897 (1966).
19
Syl. pt. 2, In re Visitation of L.M., 245 W. Va. 328, 859 S.E.2d 271 (2021). Accordingly,
based on the lack of a record before this Court, with only Mr. Delorenzo’s argument in his
brief and a short order denying his motion, we will not find error in the circuit court’s denial
of Mr. Delorenzo’s motion.
C. Mr. Delorenzo’s Voluntary Statement to Law Enforcement
Mr. Delorenzo contends that the trial court erred in determining that his
recorded statement to law enforcement was voluntary. He also claims that the circuit court
erred because it refused to allow him to testify on the issue of voluntariness without being
subject to cross-examination on other matters at a pretrial hearing.
According to the record on appeal, 10 when law enforcement arrived at Mr.
Delorenzo’s apartment, all wearing plain clothes, they informed him they had a search
10
The record consists of the circuit court order finding Mr. Delorenzo’s
statement voluntary and the transcript of the pretrial hearing. The parties did not include
underlying motions and responses in the appendix. To the extent that Mr. Delorenzo asks
us to consider his trial testimony that he felt confused, anxious, and in a state of panic
during the search to revisit the circuit court’s ruling on voluntariness, we refuse.
While a trial court may reconsider suppression determinations if new facts
come out at trial, Mr. Delorenzo did not request the circuit court do so. See State v. Farley,
192 W. Va. 247, 253 n.7, 452 S.E.2d 50, 56 n.7 (1994) (“Because the defendant did not
renew his motion to suppress at trial, specifically after he had testified, he is now foreclosed
from using trial testimony to challenge the trial court’s ruling.”). The trial court was not
required to review its suppression determination at trial without a motion. See id. Without
a renewed motion to suppress at trial, Mr. Delorenzo may not now use his trial testimony
to refute the circuit court’s pretrial decision. See id.20
warrant. During the search, Detective Rob Safreed (“Det. Safreed”) from the Wheeling
Police Department asked Mr. Delorenzo to sit at the kitchen table so he could speak with
him while the other two officers searched the apartment pursuant to the warrant. Det.
Safreed conducted the thirty-five minute interview there, using a recorder, and was the only
person to question Mr. Delorenzo. No one handcuffed Mr. Delorenzo during the search or
the interview. Mr. Delorenzo was not arrested on the day of the search and stayed in his
apartment after law enforcement concluded the search.
Upon motions by both parties, the circuit court held a pretrial hearing relating
to the voluntariness of the statement Mr. Delorenzo gave to Det. Safreed. At the hearing,
only Det. Safreed testified on behalf of the State. Det. Safreed explained to the circuit court
that he read Mr. Delorenzo his Miranda rights from a card he usually carried in his portfolio
before he started questioning him. Det. Safreed confirmed that he advised Mr. Delorenzo
that he was not under arrest. Det. Safreed explained that Mr. Delorenzo “would have said
that he did understand [his rights] because we had an interview.” Det. Safreed did not have
Our general rule is that nonjurisdictional questions raised for the first time
on appeal will not be considered. See Syl. pt. 2, Sands v. Security Trust Co., 143 W. Va.
522, 102 S.E.2d 733 (1958) (“This Court will not pass on a nonjurisdictional question
which has not been decided by the trial court in the first instance.”). Nevertheless, “[a]
constitutional issue that was not properly preserved at the trial court level may, in the
discretion of this Court, be addressed on appeal when the constitutional issue is the
controlling issue in the resolution of the case.” Syl. pt. 2, Louk v. Cormier, 218 W. Va. 81,
622 S.E.2d 788 (2005). Upon examination, this Court does not find Mr. Delorenzo’s
argument dispositive. Therefore, we decline to address any alleged error.
21
Mr. Delorenzo sign a waiver of his Miranda rights. Det. Safreed said that he may not have
told Mr. Delorenzo he was free to leave, as he wanted Mr. Delorenzo to witness the search
of his apartment, but he did not specifically tell Mr. Delorenzo that he could not leave his
house. Had Mr. Delorenzo told him he was leaving, he would have allowed him to leave.
Det. Safreed explained that he recorded the interview, but due to a new
recorder, did not realize that the recording did not include the reading of those rights and
the subsequent agreement from Mr. Delorenzo that he understood them. He estimated
approximately three minutes of the interview were not recorded, including the portion
where he provided Mr. Delorenzo with his Miranda warning. 11
Mr. Delorenzo did not offer any testimony or evidence at the pretrial hearing
other than cross-examination of Det. Safreed. In contemplation of his own testimony at the
hearing, Mr. Delorenzo requested that the circuit court limit his cross-examination to only
the voluntariness of his statement. The circuit court invited counsel to provide a basis for
such a limitation on cross-examination, which counsel did not do. Mr. Delorenzo further
11
While Sgt. Safreed earlier testified at the initial preliminary hearing that
he did not realize that the recorder failed to work until he listened to the recording, at the
hearing he testified that he realized the error during the interview. He explained the
discrepancy in his testimonies by stating that he forgot about the recorder not working at
the preliminary hearing because the hearing occurred eleven months after the interview.
He also explained that he reported that the recorder did not record in the narrative in his
police report that he created shortly after the interview.
22
did not provide any reason why cross-examination was unjust. The circuit court denied his
motion and Mr. Delorenzo did not testify.
After considering testimony from Det. Safreed and reviewing the audio
statement, the circuit court issued an order finding that the statement was voluntary, made
with “full knowledge of his Miranda rights after being advised of the same,” and that, in
any event, Mr. Delorenzo was not in custody at the time he made his statements so his
“arguments relating to spoliation of evidence of the defendant being [M]irandized (or not)
are irrelevant and moot.”
1. Scope of Cross-examination at the Pretrial Hearing. We first address the
alleged error regarding Mr. Delorenzo’s motion at the pretrial hearing to testify without
being subject to cross-examination outside the scope of voluntariness. Before this Court or
the circuit court, Mr. Delorenzo failed to supply any rules or law in support of his argument
that the circuit court should have granted his motion. West Virginia Rule of Appellate
Procedure 10(c)(7) requires a petitioner to “clearly exhibit[] the points of fact and law
presented” and to “cit[e] the authorities relied on[.]” Citing to “some of the facts involved
with an issue” does not meet the requirements of Rule 10(c)(7). Benny W., 242 W. Va. at
632 n.23, 837 S.E.2d at 693 n.23. The circuit court specifically provided Mr. Delorenzo
the opportunity to provide relevant authority for his request and he provided none. He has
not provided this Court with any relevant authority, either. Mr. Delorenzo’s argument, both
23
here and before the circuit court, is “a skeletal argument, really nothing more than an
assertion” and “does not preserve a claim.”12 See State, Dep’t of Health and Human Res.
ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995) (internal quotations and citations omitted). Mr. Delorenzo’s limited argument both
here and before the circuit court does not preserve a claim. We refuse to address his
argument that the circuit court erred by denying his motion to testify with only limited
cross-examination.
2. Mr. Delorenzo’s Voluntary Statement. We next examine whether the
circuit court erred in determining that Mr. Delorenzo’s statement to Det. Safreed was
voluntary. Mr. Delorenzo appears to argue that no evidence shows that Mr. Delorenzo was
read and understood his Miranda rights, because only Det. Safreed testified that he read
Mr. Delorenzo his Miranda rights. The State asserts that Mr. Delorenzo was not in custody,
and therefore Det. Safreed had no duty to give Mr. Delorenzo any Miranda warnings, and
12
Rule 104(d) of the West Virginia Rules of Evidence governs cross-
examination of a defendant on a preliminary question. W. Va. R. Evid. 104(d) (“By
testifying on a preliminary question, a defendant in a criminal case does not become subject
to cross-examination on other issues in the case.”). As we have explained many times,
“[t]his Court will not pass on a nonjurisdictional question which has not been decided by
the trial court in the first instance.” Syl. pt. 2, Sands v. Sec. Tr. Co., 143 W. Va. 522, 102
S.E.2d 733 (1958). Had he named this Rule in his brief and claimed an error in its
application by the circuit court to this Court, we still would not review whether the circuit
court erred in the application of Rule 104(d), as Mr. Delorenzo did not submit any
testimony for which he could be cross-examined and the Rule subsequently violated.
24
in any event, the circuit court determined that Det. Safreed’s testimony that he read Mr.
Delorenzo his Miranda rights was credible. We agree with the State.
“We apply an abuse of discretion standard of review to a circuit court's
decision on the admissibility of a confession.” Campbell, 246 W. Va. at ___, 868 S.E.2d at
451. A trial court “has wide discretion in regard to the admissibility of confessions and
ordinarily this discretion will not be disturbed on review.” Syl. pt. 2, in part, State v. Vance,
162 W. Va. 467, 250 S.E.2d 146 (1978). “A trial court’s decision regarding the
voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly
against the weight of the evidence.” Syl. pt. 3, id. Moreover, “factual findings based, at
least in part, on determinations of witness credibility are accorded great deference.” Syl.
pt. 3, in part, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994) (regarding the standard
of review for suppression motions).
Yet, we apply a de novo review when determining whether “‘a particular
confession is voluntary and whether the lower court applied the correct legal standard in
making its determination,’” limiting our deference to factual findings. Campbell, 246
W. Va. at ___, 868 S.E.2d at 451 (quoting Syl. pt. 2, in part, State v. Farley, 192 W. Va.
247, 452 S.E.2d 50 (1994)). “[T]he prosecution must show by ‘affirmative evidence’ as a
condition precedent to its admissibility that the voluntariness of a confession is established
by a preponderance of the evidence.” Farley, 192 W. Va. at 252, 452 S.E.2d at 55.
25
Additionally, “[i]n circumstances where a trial court admits a confession without making
specific findings as to the totality of the circumstances, the admission of the confession
will nevertheless be upheld on appeal, but only if a reasonable review of the evidence
clearly supports voluntariness.” Syl. pt. 3, Farley, 192 W. Va. 247, 452 S.E.2d 50.
Law enforcement officers must provide Miranda warnings, pursuant to
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when a person
is in custody and is interrogated. Campbell, 246 W. Va. at ___, 868 S.E.2d at 451. “‘The
obligation of police to warn a suspect of both his right to counsel and his right against self-
incrimination applies only to custodial or other settings where there is a possibility of
coercion.’ Syl. pt. 2, State v. Andriotto, 167 W. Va. 501, 280 S.E.2d 131 (1981).” Syl. pt.
5, State v. Hardway, 182 W. Va. 1, 385 S.E.2d 62 (1989). Thus, if a person is not in custody
or in a setting “where there is a possibility of coercion,” law enforcement officers do not
have to provide Miranda warnings before questioning a person. See id.Whether a person is in custody is an “‘objective test’” where the court must
consider, in the totality of the circumstances, whether “‘a reasonable person in that
individual’s position would have considered his freedom of action restricted to the degree
associated with a formal arrest.’” Campbell, 246 W. Va. at ___, 868 S.E.2d at 452 (quoting
State v. McCracken, 218 W. Va. 190, 195, 624 S.E.2d 537, 542 (2005) (per curiam)). When
26
determining the factual question of whether a person is subject to a custodial interrogation,
the factors the circuit court must consider include:
the location and length of questioning; the nature of the
questioning as it relates to the suspected offense; the number
of police officers present; the use or absence of force or
physical restraint by the police officers; the suspect’s verbal
and nonverbal responses to the police officers; and the length
of time between the questioning and formal arrest.[13]
Syl. pt. 4, in part, Damron v. Haines, 223 W. Va. 135, 672 S.E.2d 271 (2008) (per curiam).
In State v. Singleton, we affirmed a trial court’s determination that a person was not in
custody when her interview took approximately forty minutes, so was “not lengthy;” she
was not handcuffed, detained or “otherwise restrained;” she was allowed to leave for work;
officers advised her that she was not under arrest; and she was seated in the front seat of a
police car. 218 W. Va. 180, 186 & n.11, 624 S.E.2d 527, 533 & n.11 (2005) (per curiam).
Based on the facts presented at the pretrial hearing, we will not disturb the
circuit court’s conclusion that Mr. Delorenzo was not in custody when he gave his
statement to Det. Safreed. Mr. Delorenzo was in his home with three plain-clothed law
enforcement officers, which was not an overwhelming number of individuals, while they
executed a search of his apartment. Mr. Delorenzo’s apartment was a neutral setting. See
United States v. Hargrove, 625 F.3d 170, 180 (4th Cir. 2010) (explaining that a suspect’s
These factors are not all-inclusive. See Syl. pt. 4, in part, Damron v.
13
Haines, 223 W. Va. 135, 672 S.E.2d 271 (2008) (per curiam).
27
residence is a more “neutral” and “relaxed” environment than is typically associated with
formal arrest). Mr. Delorenzo and Det. Safreed sat at the kitchen table during the interview.
Furthermore, Det. Safreed told him he was not under arrest. The officers did not handcuff
him, restrain him, or restrict his freedom to depart. Like the interview in Singleton, Mr.
Delorenzo’s conversation with Det. Safreed was “not lengthy,” approximately thirty-five
minutes. See 218 W. Va. at 186, 624 S.E.2d at 533. Law enforcement did not arrest him at
or immediately following the search of his apartment. Based upon these facts, Mr.
Delorenzo was not in custody during the interview and the record presents no evidence of
coercion. Because it was not a custodial interrogation, law enforcement did not have to
provide Miranda warnings to him.
Further, to the extent that the circuit court found that Det. Safreed provided
Miranda warnings to Mr. Delorenzo, we will not alter the circuit court’s finding. See Syl.
pt. 3, in part, Stuart, 192 W. Va. 428, 452 S.E.2d 886 (giving “great deference” to factual
findings based at least in part on witness credibility). Mr. Delorezo argues that Det.
Safreed’s testimony was “unsubstantiated.” Still, Det. Safreed testified extensively
regarding the warnings he provided Mr. Delorenzo, and Mr. Delorenzo’s understanding of
those warnings. The circuit court clearly found Det. Safreed credible when it determined
that Det. Safreed provided Miranda warnings to Mr. Delorenzo, as its only evidence was
Det. Safreed’s testimony and the recorded statement itself. We will not disturb this finding.
28
Having determined that Mr. Delorenzo was not in custody, yet still received
Miranda warnings, we now turn to whether his statement was voluntary. While the circuit
court did not make “specific findings as to the totality of the circumstances,” our review of
the evidence “clearly supports [the] voluntariness” of Mr. Delorenzo’s statement. See Syl.
pt. 3, in part, Farley, 192 W. Va. 247, 452 S.E.2d 50. For the same reasons that support
our finding that Mr. Delorenzo was not in custody, we find that the State proved by a
preponderance of the evidence that Mr. Delorenzo’s statement was voluntary.
For the foregoing reasons, we find that the circuit court did not abuse its
discretion by denying Mr. Delorenzo’s motion to suppress and admitting his recorded
statement into evidence at trial.
D. Testimony by the State’s Digital Forensic Analyst.
We now turn to Mr. Delorenzo’s contention that the State’s digital forensic
computer analyst, an uncontested expert, testified outside of her expertise at trial and the
circuit court plainly erred by allowing this testimony. We disagree.
Before trial, the State disclosed the resume of Ginger Haring (“Ms. Haring”)
the State’s digital forensic computer analyst, to Mr. Delorenzo. Her resume included
information that as a digital forensic analyst, she performed “thorough examinations of
computer hard disk drives and electronic data storage media.” Her resume also listed her
29
credential as a Certified Cyber Crime Examiner. At trial, Ms. Haring described her
background and disclosed she had a degree in network administration and cyber
security/computer forensics. She explained the evidence she found on Mr. Delorenzo’s
computer and explained how she reviewed that evidence.
During her testimony, the State asked her whether she spoke with Mr.
Delorenzo’s counsel. She responded that she had on more than one occasion, and she
reported that at one point, he asked her whether it was possible that someone could have
used Mr. Delorenzo’s computer as a server without his knowledge. She told the jury that
she told Mr. Delorenzo’s counsel it was possible, but not probable. She then explained that
it’s possible for any home computer to be -- to be gotten into
and used. However, most of the time when that’s the case,
there’s a monetary -- they’re looking for monetary reasons to
do it. They want your identity. They want your bank numbers.
They want your credit card numbers. In most cases that is more
what it’s for, is for monetary gain.
She confirmed that it was not typical that people put pornography on someone else’s
computer and then delete it. Mr. Delorenzo did not object at trial during her direct
testimony. On cross-examination, Mr. Delorenzo’s attorney revisited the issue with Ms.
Haring, asking her whether she spoke with him. He asked her whether a cybercriminal
could have gained access to the defendant’s computer. Ms. Haring responded that “Again,
it is possible; it is not probable. That is not a likely scenario, but it’s -- it is possible.”
30
Generally, pursuant to Rule 103(a) of the West Virginia Rules of Evidence,
to preserve a claim of error, a party must “timely” object to the admission of evidence,
stating the “the specific ground” of the objection “unless it was apparent from the context.”
W. Va. R. Evid. 103(a). See State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996)
(discussing the failure to object to evidence at trial). Because Mr. Delorenzo did not raise
this issue during Ms. Haring’s testimony, it is unpreserved, and any analysis must use a
plain error review. See Syl. pt. 6, State v. Mayo, 191 W. Va. 79, 443 S.E.2d 236 (1994);
W. Va. R. Crim. P. 52(b) (explaining that “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”). See
also W. Va. R. Evid. 103(e) (“A court may take notice of a plain error affecting a
substantial right, even if the claim of error was not properly preserved.”).
A “plain error” occurs when there is “(1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. pt. 7, in part, State v. Miller, 194 W. Va. 3,
459 S.E.2d 114 (1995). If the first three elements are met, we may correct the error, but
need not do so “unless a fundamental miscarriage of justice has occurred.” Marple, 197
W. Va. at 52, 475 S.E.2d at 52.
Mr. Delorenzo asserts that part of Ms. Haring’s testimony on direct
examination meets the threshold for plain error because Ms. Haring was not qualified to
31
testify as a criminologist about the following issues: (1) that it is not typical that someone
would place pornography on someone else’s home computer without the owner’s
knowledge; and (2) when people intrude on others’ computers, it is usually for monetary
reasons. Mr. Delorenzo claims, without citation, that the circuit court allowing an expert to
testify outside the scope of her expertise was an “egregious act” that “constitute[ed] plain
error.” He fails to provide any legal authority that demonstrates that permitting Ms.
Haring’s contested testimony was error at all, merely alleging that her “central role” in the
trial led the jury to give “a great deal of credence to her testimony.”
We find no error in allowing this testimony, much less that “the lower court
skewed the fundamental fairness or basic integrity of the proceedings in some major
respect.” See LaRock, 196 W. Va. at 317, 470 S.E.2d at 636 (discussing standard for
finding plain error). Ms. Haring had degrees in network administration and cyber
security/computer forensics; as part of her employment, she performed examinations of
computers and electronic storage media; and she was a Certified Cyber Crime Examiner.
Testifying about the criminal use of computers appears within her area of expertise.
Moreover, rather than objecting to Ms. Haring’s direct testimony, on cross-examination
Mr. Delorenzo’s counsel revisited the issue, eliciting yet again that it was possible someone
placed child pornography on Mr. Delorenzo’s computer. We do not find such testimony is
error, much less plain error.
32
E. Visual Evidence the State Introduced at Trial
Finally, Mr. Delorenzo asserts two errors relating to the videos and
photographs presented to the jury at trial. He argues that the circuit court should have
prevented the State from presenting evidence from the State’s library of child pornography
because it was “unnecessary” for the State to present this evidence, as “the images were
not on his computer” when it was seized and “if the images appeared on his computer at
any time before the computer was seized it was not accomplished through his knowing and
willful act.” He also contends that the circuit court erred by playing videos “for an
unnecessary length of time,” alleging for the first time in this appeal that the circuit court
admitted needlessly cumulative and unfairly prejudicial evidence, in violation of Rule 403
of the West Virginia Rules of Evidence.
Sergeant James Kozik (“Sgt. Kozik”) from the West Virginia State Police
testified at trial on behalf of the State, explaining that the State has a “hash library” of
known child exploitation materials that provides each file’s “hash value,” a mathematical
algorithm that is the precise “DNA fingerprint of the file.” He described his investigation,
where he used a computer program to find an IP address sharing voluminous files with
some of those known hash values over the internet. 14 He then matched those files’ hash
values with copies of identical files from the State’s library of child exploitation. Sgt. Kozik
14
Another law enforcement witness ultimately testified that the IP address at
issue was associated with Mr. Delorenzo’s residential address.
33
placed copies of those identical files on data storage materials and the State introduced
those videos and photographs into evidence at trial. Mr. Delorenzo objected to the
introduction of those files on the grounds that they came from the State’s library, not from
his computer.
The admissibility of evidence is “‘committed to the discretion of the trial
court,’” and with few exceptions, this Court reviews “‘evidentiary . . . rulings of the circuit
court under an abuse of discretion standard.’” Syl. pt. 1, in part, State v. Gray, 204 W. Va.
248, 511 S.E.2d 873 (1998) (per curiam) (quoting Syl. Pt. 1, in part, McDougal v.
McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995)). See also Syl. pt. 9, State v.
Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (quoting Syl. pt. 1, Roberts v. Stevens
Clinic Hospital, Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986)) (“‘A trial court is afforded
wide discretion in determining the admissibility of videotapes and motion pictures.’”).
Mr. Delorenzo’s argument that the contested visual evidence was not on his
computer and was therefore unnecessary to present to jury is without merit. The State
correctly points out that it has a right to present evidence of essential elements of crimes.
See State v. Less, 170 W. Va. 259, 264, 294 S.E.2d 62, 66 (1981) (“The State must prove
all the elements of a crime beyond a reasonable doubt.”). The credibility of evidence is “for
the trier of fact to determine.” State v. Jenkins, 195 W. Va. 620, 626, 466 S.E.2d 471, 477
(1995). The State’s burden included proving to the jury the number of images charged in
34
the superseding indictment, which alleged that Mr. Delorenzo unlawfully, knowingly, and
willfully sent or caused to be sent and/or possessed child pornography, including 600 or
more images depicting minors engaged in sexually explicit conduct or images depicting
violence against a child. See W. Va. Code § 61-8C-3(b)-(d) (increasing penalties for a
violation of § 61-8C-3(a) depending on the number and type of images); § 61-8C-3(e)
(defining how images are counted for the purposes of the statute, with five-minute videos
equaling 75 images, with each additional two minutes adding 75 more images). The jury
heard testimony from Sgt. Kozik that the videos and images sent over the internet from Mr.
Delorenzo’s IP address matched child pornography in the State’s library. This evidence
directly related to the superseding indictment that alleged Mr. Delorenzo sent or caused to
be sent child pornography. Mr. Delorenzo stating that this evidence is “unnecessary” is not
grounds for limiting the State’s evidence to visual images found only on Mr. Delorenzo’s
computer and hard drives. Whether Mr. Delorenzo knowingly and willfully sent, caused to
be sent, and/or possessed those images were properly a question of fact for the jury. The
circuit court did not abuse its discretion in admitting evidence of child pornography from
the State’s library rather than only evidence retrieved directly from Mr. Delorenzo’s
computer seized by the State.15
15
The State’s evidence also included child pornography found on his
computer. Ms. Haring testified about her examination of Mr. Delorenzo’s computer and
hard drives and the numerous child-suspicious videos and items she found on them. She
further explained she found files identified as child pornography that had been deleted from
the “recycle bin” on Mr. Delorenzo’s computer. The State showed evidence from that
35
Mr. Delorenzo also now argues that the trial court should have applied Rule
403 of the West Virginia Rules of Evidence to preclude the admission of some of the videos
and photographs because they were unfairly prejudicial and needlessly cumulative. Rule
103(a)(1) of the West Virginia Rules of Evidence explains that a party may claim error
relating to the admission of evidence if the party timely objects and “states the specific
ground, unless it was apparent from the context.”
Mr. Delorenzo objected to this evidence at trial, but on the grounds that the
images were from the State’s library. Because he did not raise any objections under Rule
403, these arguments are waived. See State v. DeGraw, 196 W. Va. 261, 271-72, 470
S.E.2d 215, 225-26 (1996) (declining to address whether trial court improperly admitted
evidence that allegedly violated Rule of Evidence 404(b) where the party only objected to
the evidence on the grounds that it violated Rule of Evidence 609). As such, Mr.
Delorenzo’s assignments of error regarding the admission of various pictures and videos
into evidence fail.
computer to the jury. While she was unable to see the search history from Mr. Delorenzo’s
web browser, she identified browser activity from known child pornography sites.
36
IV.
CONCLUSION
Finding no reversible error for the reasons stated above, we affirm the final
order from May 7, 2021, of the Circuit Court of Marshall County.
Affirmed.
37