State of West Virginia v. Shawn Thomas Riggleman , 238 W. Va. 720 ( 2017 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
April 6, 2017
No. 16-0012 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
v.
SHAWN THOMAS RIGGLEMAN,
Petitioner
Appeal from the Circuit Court of Preston County
The Honorable Lawrance S. Miller, Jr., Judge
Civil Action No. 15-F-6
AFFIRMED
Submitted: February 15, 2017
Filed: April 6, 2017
Claire L. Niehaus, Esq. Patrick Morrisey, Esq.
Public Defender Corporation Attorney General
Eighteenth Judicial Circuit David A. Stackpole, Esq.
Kingwood, West Virginia Assistant Attorney General
Counsel for Petitioner Charleston, West Virginia
Counsel for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415
(1995).
2. “The purpose of West Virginia Code § 27-6A-3 (Supp.1996) is not
to punish someone suffering a mental illness; rather, it is to treat the illness and protect
society.” Syl. Pt. 4, in part, State v. Smith, 198 W.Va. 702, 482 S.E.2d 687 (1996).
3. “In determining whether a misdemeanor or felony involves an ‘act
of violence against a person’ pursuant to W.Va. Code § 27-6A-3 (2007), a court’s
analysis is not limited by whether an ‘act of violence against a person’ is an element of
the offense.” Syl. Pt. 1, State v. George K., 233 W.Va. 698, 760 S.E.2d 512 (2014).
4. “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 (2014).
5. Distributing and exhibiting material depicting minors engaged in
sexually explicit conduct in violation of West Virginia Code § 61-8C-3 (2014) is a crime
i
that “involve[s] an act of violence against a person” within the meaning of West Virginia
Code § 27-6A-3(h) (2013) because it derives from and is proximately linked to physical,
emotional, and psychological harm to children.
ii
WORKMAN, Justice:
Petitioner Shawn Thomas Riggleman, who was indicted on a felony charge
of possession of child pornography in violation of West Virginia Code § 61-8C-3 (2014),
was found not competent to stand trial. The question presented in this appeal is whether
the crime Petitioner is charged with “involve[s] an act of violence against a person”
within the meaning of West Virginia Code § 27-6A-3(h) (2013), so that he would remain
under the jurisdiction of the Circuit Court of Preston County until the expiration of the
maximum sentence. The circuit court answered that question in the affirmative, and we
agree.
I. FACTUAL AND PROCEDURAL HISTORY
In March 2015, a grand jury indicted Petitioner on one felony count of
“Distributing and Exhibiting Material Depicting Minors Engaged in Sexually Explicit
Conduct” in violation of West Virginia Code § 61-8C-3. Petitioner was accused of
electronically obtaining 100 or more pictures and videos via the internet that depicted
pre-teen children engaged in sexual explicit conduct. West Virginia Code § 61-8C-3,
provides, in pertinent part:
(a) Any 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 any sexually explicit conduct is guilty of a felony.
....
1
(c) Any person who violates the provisions of
subsection (a) of this section when the conduct involves more
than fifty but fewer than six hundred images shall, upon
conviction, be imprisoned in a state correctional facility for
not less than two nor more than ten years or fined not more
than $5,000, or both.
(d) Notwithstanding the provisions of subsections (b)
and (c) of this section 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.
The circuit court ordered a forensic examination to determine Petitioner’s
competency to stand trial. It was initially decided that Petitioner was not competent, but
might attain competency through restoration training. Petitioner underwent restoration
training at Sharpe Hospital in Weston, West Virginia, for six months. In November 2015,
a psychiatrist submitted his report to the circuit court that indicated Petitioner was not
competent, and was unlikely to be restored to competency within the next three months.
Petitioner did not dispute the psychiatrist’s report.
The circuit court held a hearing regarding Petitioner’s competency and by
order dated December 7, 2015, concluded that Petitioner’s alleged crime – attaining and
viewing images of children engaged in sexual acts via his computer – was a crime
involving “an act of violence against a person” pursuant to West Virginia Code § 27-6A­
3(h). The circuit court acknowledged the lack of West Virginia case law addressing this
2
specific question; it relied upon State v. George K., 233 W.Va. 698, 760 S.E.2d 512
(2014), to frame the issue as whether downloading and accessing child pornography
poses a risk of physical harm, severe emotional harm, or severe psychological harm to
children. In addition, citing Osborne v. Ohio, 495 U.S. 103 (1990), the circuit court
observed that one of the purposes of child pornography laws is to protect children by
destroying the market for child pornography.
The circuit court found (1) Petitioner admitted to the police that he
affirmatively sought out child pornography on his computer over a five to six month
period; (2) the material produced by child pornographers causes continuing harm to the
child victims; (3) Petitioner caused, at least incrementally, an increase in the demand for
child pornography; and (4) Petitioner’s actions have helped lead to severe physical,
emotional, and psychological harm to the children depicted in the images and videos that
he downloaded. The circuit court ordered that Petitioner remain under its jurisdiction
until the expiration of his maximum sentence, or until he attains competency and the
charges are resolved, or the court dismisses the charges. See W.Va. Code § 27-6A-3(h).
II. STANDARD OF REVIEW
In this appeal, Petitioner raises one assignment of error. He argues the
circuit court erred by finding the crime charged under West Virginia Code § 61-8C-3
involves an act of violence to a person under the meaning of West Virginia Code § 27­
6A-3(h). We have held that “[w]here the issue on an appeal from the circuit court is
3
clearly a question of law or involving an interpretation of a statute, we apply a de novo
standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d
415 (1995).
III. DISCUSSION
A. Petitioner is Charged with a Felony Crime Involving an Act of Violence
With regard to mentally ill persons charged with crimes, West Virginia
Code § 27-6A-3(g) provides, in part, that if “the defendant is found not competent to
stand trial and is found not substantially likely to attain competency and if the defendant
has been indicted or charged with a misdemeanor or felony which does not involve an act
of violence against a person, the criminal charges shall be dismissed.” In contrast,
if the defendant has been indicted or charged with a
misdemeanor or felony in which the misdemeanor or felony
does involve an act of violence against a person, then the
court shall determine on the record the offense or offenses of
which the person otherwise would have been convicted, and
the maximum sentence he or she could have received. A
defendant shall remain under the court’s jurisdiction until the
expiration of the maximum sentence unless the defendant
attains competency to stand trial and the criminal charges
reach resolution or the court dismisses the indictment or
charge. The court shall order the defendant be committed to a
mental health facility designated by the department that is the
least restrictive environment to manage the defendant and that
will allow for the protection of the public.
Id. § 27-6A-3(h), in part (emphasis added).
4
In State v. Smith, 198 W.Va. 702, 482 S.E.2d 687 (1996), this Court
examined West Virginia Code §§ 27-6A-3 and -4, and found that, read in pari materia,
the statutes “generally provide a court flexibility in exercising and retaining its
jurisdiction up to the maximum sentence period, with consideration given to the current
mental state and dangerousness of a person[.]”1 Syl. Pt. 2, in part, Smith, 198 W.Va. at
704, 482 S.E.2d at 689. We held in syllabus point four, in part, that: “The purpose of
West Virginia Code § 27-6A-3 (Supp.1996) is not to punish someone suffering a mental
1
In Smith, the defendant shot and killed her husband. The circuit court initially
determined, based on forensic evaluations, that the defendant was not competent to stand
trial. A psychologist later determined that she was competent to stand trial but the
prosecuting attorney advised the circuit court that the State did not believe it could prove
the criminal intent necessary to secure a conviction. Id. at 706, 482 S.E.2d at 691. The
circuit court ultimately found the defendant not guilty of second-degree murder by reason
of mental illness and ordered her committed to a State mental health hospital.
Approximately six and one-half months later, she was released to live with her sister and
the release order contained a number of restrictions. Id. at 707, 482 S.E.2d at 692.
When a defendant is found not guilty of a criminal charge by reason of mental
illness, he or she remains under the court’s jurisdiction for the maximum sentence or until
discharged by the court. See W.Va. Code § 27-6A-4(e), in part (“If the verdict in a
criminal trial is a judgment of not guilty by reason of mental illness, the court shall
determine on the record the offense or offenses of which the acquitee could have
otherwise been convicted, and the maximum sentence he or she could have received. The
acquitee shall remain under the court’s jurisdiction until the expiration of the maximum
sentence or until discharged by the court. The court shall commit the acquitee to a mental
health facility designated by the department that is the least restrictive environment to
manage the acquitee and that will allow for the protection of the public.”).
5
illness; rather, it is to treat the illness and protect society.” Smith, 198 W.Va. at 704, 482
S.E.2d at 689.2
This Court provided a comprehensive discussion of West Virginia Code §
27-6A-3 in George K., wherein the thirty-nine-year-old defendant was charged with
third-degree sexual assault and sexual abuse by a parent, guardian, custodian, or a person
in a position of trust to a child; the defendant allegedly had sexual intercourse on two
occasions with the fifteen-year-old daughter of his live-in girlfriend. Counsel for the State
and counsel for the defendant agreed that he was not competent to stand trial. George K.,
233 W.Va. at 703, 760 S.E.2d at 517.
In George K., we rejected the defendant’s argument that his crimes did not
involve acts of violence because the sexual contact with the victim was supposedly
consensual. This Court found that the meaning of “violence,” as set forth in West
Virginia Code § 27-6A-3, was ambiguous due to the absence of a statutory definition.
George K., 233 W.Va. at 706, 760 S.E.2d. at 520. We proceeded to ascertain the
legislative intent behind the statute, employing common rules of statutory interpretation.
2
See also State v. Gum, 234 W.Va. 263, 269, 764 S.E.2d 794, 800 (2014)
(recognizing “the hearing sanctioned by West Virginia Code § 27-6A-6 is civil in nature.
Instead of seeking retribution or deterrence, our statute is directed at the joint purposes of
protecting the public and ensuring appropriate treatment for individuals who are both
incompetent and criminally violent. See W.Va. Code § 27-6A-3(h). The least restrictive
environment is mandated and the potential maximum prison sentence serves as a ceiling,
rather than a floor, for the treatment period.”).
6
We held in syllabus point one of George K. that: “In determining whether a misdemeanor
or felony involves an ‘act of violence against a person’ pursuant to W. Va. Code § 27­
6A-3 (2007), a court’s analysis is not limited by whether an ‘act of violence against a
person’ is an element of the offense.” 233 W.Va. at 701, 760 S.E.2d at 515. We went on
to find the defendant’s crimes involved an act of violence against a person within the
meaning of West Virginia Code § 27-6A-3 considering the crimes’ resultant harm to
children. In syllabus point two we held: “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.” 233 W.Va. at 701, 760 S.E.2d at 515.
State ex rel. Smith v. Sims, 235 W.Va. 124, 772 S.E.2d 309 (2015), was
decided along similar lines. In Sims, the prosecuting attorney invoked this Court’s
original jurisdiction and petitioned for a writ of prohibition to prevent a circuit court from
dismissing a juvenile petition against a twelve-year-old boy charged with the offense of
possession of a deadly weapon on the premises of an educational facility as set forth in
West Virginia Code § 61-7-11a(b)(1) (2014); the circuit court found that the juvenile was
not competent to stand trial and that the charged offense did not involve an act of
violence against a person. Sims, 235 W.Va. 124, 126, 772 S.E.2d 309, 311. This Court
granted the writ and held that possession of a deadly weapon on the premises of an
educational facility with the express intent to intimidate another student was a crime that
involved an act of violence against a person within the meaning of West Virginia Code §
7
27-6A-3. In Sims, we rejected the argument that because no student saw the juvenile with
the gun there could be no “identifiable victim” and, thus, no act of violence. 235 W.Va. at
130, 772 S.E.2d at 315. This Court reasoned that
[i]n making it a crime to possess a deadly weapon on
the premises of an educational facility, the Legislature
recognized the potential for harm that exists when firearms
are merely accessible to children. When a student brings a
gun to school with the express intention of using it to
intimidate another child, the likelihood that other students
will suffer some type of physical or psychological harm
becomes a virtual certainty unless someone happens to
intervene.
Id. at 131, 772 S.E.2d at 316.
As these cases illustrate, the issue is not whether the incompetent defendant
committed an act of violence against a person; the language of West Virginia Code § 27­
6A-3(h) does not require the State to make that showing. Rather, the relevant inquiry is
whether the crime charged involves an act of violence against a person.
Turning to the instant case, Petitioner offers a series of unpersuasive
arguments. Petitioner attempts to evade the broad pronouncements of George K. by
arguing the instant case is distinguishable due to Petitioner’s lack of contact with the
children depicted in the pornographic images. He acknowledges that the defendant in
Sims had no contact with his intended victim either, but states the risk of a shooting by
the defendant bringing a loaded gun to school made that conduct an obvious crime
involving violence. Petitioner then retreats to a strict construction of the statutory
8
language set forth in West Virginia Code § 27-6A-3 and urges this Court to revisit and
narrow our holdings in this area of law to draw a distinction between crimes which may
cause hypothetical “harm” to a potential victim and crimes that involve actual physical
force “violence” against a person. Petitioner reasons that, in some respect, most crimes
“harm” someone.
Petitioner goes a step further and postulates that the copious amount of
pornographic images involving children that can be readily accessed – for free – on the
internet today undermines the market analysis employed by the United States Supreme
Court in Osborne.3 Petitioner maintains the “economic supply and demand” argument for
concluding that he committed a crime of violence is flawed because he never paid to see
the images; his “conduct” was sitting at a computer, inputting words and phrases as
search terms, and viewing images and videos. Petitioner ultimately asserts this type of
conduct does not drive the production of child pornography or cause physical, emotional,
or psychological harm to the minors depicted in the images/videos. He essentially argues
that the victimization of children here, if any, is too attenuated to constitute the type of
harm to children this Court found compelling in George K.
3
Petitioner claims an incompetent defendant could never consider what impact he
was having on the child pornography market. However, the fact that Petitioner is unable
to comprehend or appreciate the devastating effect electronic distribution of child
pornography has on the lives of those sexually abused children is simply one of the
reasons the circuit court proceeded under a civil hearing sanctioned by West Virginia
Code § 27-6A-3. Petitioner’s comprehension of his crime is of no consequence to the
issue of whether it involves an act of violence against a person.
9
Having framed Petitioners’ arguments, we begin our analysis by soundly
rejecting the notion that simple possession of child pornography is a victimless crime. In
many respects, Petitioner advances the same specious line of reasoning of those who
advocate for the repeal of laws criminalizing such behavior. However, “[a] recent report
by the U.S. Department of Justice, Criminal Division, Child Exploitation and Obscenity
Section noted that child pornography requires child sexual abuse, concluding, ‘[I]t is
simply not possible to disconnect the collection, trade, viewing, and possession of these
images [of child pornography] from their production.’” Nicholas Pisegna, Probable
Cause to Protect Children: The Connection Between Child Molestation and Child
Pornography, 36 B.C.J.L. & Soc. Just. 287, 288-89 (2016) (citation omitted).
Recognizing this connection in the landmark decision of New York v. Ferber, 458 U.S.
747 (1982), the United States Supreme Court upheld a prohibition on the distribution and
sale of child pornography, as well as its production, because these acts were “intrinsically
related” to the sexual abuse of children in two ways. Id. at 759. First, as a permanent
record of a child’s abuse, the continued circulation itself would harm the child who had
participated; each new publication would cause new injury to the child’s reputation and
emotional well-being. Id. at 759, and n.10. Second, because the traffic in child
pornography was an economic motive for its production, the State had an interest in
closing the distribution system. “Under either rationale, the speech had what the Court in
effect held was a proximate link to the crime from which it came.” Ashcroft v. Free
Speech Coal., 535 U.S. 234, 250 (2002). In Ferber, the Supreme Court found “[t]he most
10
expeditious if not the only practical method of law enforcement may be to dry up the
market for this material by imposing severe criminal penalties on persons selling,
advertising, or otherwise promoting the product.” 458 U.S. at 760.
Later, in Osborne, the Supreme Court ruled that these same interests
justified a ban on the possession of pornography produced by using children. “Given the
importance of the State’s interest in protecting the victims of child pornography,” the
State was justified in “attempting to stamp out this vice at all levels in the distribution
chain.” 495 U.S. at 110. Justice O’Connor has also observed that the State has an interest
in preventing child pornography from being used as an aid in the solicitation of minors.
See Ashcroft, 535 U.S. at 263 (“Such images whet the appetites of child molesters . . .
who may use the images to seduce young children[.]”) (citations omitted) (O’Connor, J.,
concurring in part and dissenting in part).
Moreover, the growing cesspool of noncommercial trading of child
pornography in no way minimizes its resulting harm to children.4 And the United States
4
See United States v. Grober, 624 F.3d 592, 616 (3d Cir. 2010) (“Congress
considers the transportation of child pornography a particularly egregious crime, and in
recent years has expressed its concern that ‘the development of the Internet and the
digital image . . . ha[s] permitted child pornographers to disseminate their product
exponentially, not only across America, but around the world, with a few simple strokes
of a keyboard.’ 151 Cong. Rec. 4236 (Feb. 24, 2003); see also 151 Cong. Rec. 20221
(2005) (finding that ‘a substantial interstate market in child pornography exists, including
not only a multimillion dollar industry, but also a nationwide network of individuals . . .
[who] distribute child pornography with the expectation of receiving other child
(continued . . .)
11
Supreme Court has not retreated from its holding in Osborne in light of this tragic reality.
To the contrary, in Paroline v. United States, 134 S. Ct. 1710 (2014), the Court
recognized that “[b]ecause child pornography is now traded with ease on the Internet,
‘the number of still images and videos memorializing the sexual assault and other sexual
exploitation of children, many very young in age, has grown exponentially.’” Id. at 1717.
(citation omitted). In Paroline, the defendant pled guilty to possession of material
involving the sexual exploitation of children and the victim depicted in two of the images
sought restitution.5 The Paroline Court was split on how to determine proximate-cause
limitations on restitution damages for victims of child pornography. However, the
majority aptly found that: “In a sense, every viewing of child pornography is a repetition
of the victim’s abuse.” Id. at 1727.
pornography in return.’). As the District Court recognized, Congress imposed a
mandatory minimum for transportation offenses based on its finding that ‘the exchanging
through trading images contributes to the growth of child pornography and harms
increasing numbers of children.’ [United States v.] Grober, 595 F.Supp.2d [382] at 404
[(D.N.J. 2008)].”).
5
Congress enacted 18 United States Code § 2259 (1996), which imposes a
mandatory duty on courts to order restitution to victims of federal offenses involving the
sexual abuse of children, including the possession of child pornography. Id. § 2259(b)(4).
It commands that for any such offense, a court “shall direct the defendant to pay the
victim . . . the full amount of the victim’s losses.” Id. § 2259(b)(1).
West Virginia also has a restitution provision. See W.Va. Code § 61-8C-4 (“In
addition to any penalty provided under this article and any restitution which may be
ordered by the court under article eleven-a [§§ 61-11A-1 et seq.] of this chapter, the court
may order any person convicted under the provisions of this article to pay all or any
portion of the cost of medical, psychological or psychiatric treatment of the minor
resulting from the act or acts for which the person is convicted, whether or not the minor
is considered to have sustained bodily injury.”).
12
This Court has made a similar declaration. In State v. Shingleton, 237
W.Va. 669, 790 S.E.2d 505 (2016), we stated emphatically that
[e]ach use of a minor to create a visual depiction of child
pornography constitutes a separate and distinct abuse of that
child, and thus represents an individual violation of the
statute. 6 . . . [E]ach image of child pornography creates a
permanent record of a child’s abuse, which results in
continuing exploitation of a child when the image is
subsequently viewed.
Id. at 687, 790 S.E.2d at 523 (quoting Commonwealth v. Davidson, 938 A.2d 198, 219
(Pa. 2007)) (footnote added); see also United States v. Kennedy, 643 F.3d 1251, 1260
(9th Cir. 2011) (finding individuals depicted in images of child pornography experience
“the emotional and psychic pain of knowing that the images are being viewed”); United
States v. Goff, 501 F.3d 250, 259 (3d Cir. 2007) (“The simple fact that the images have
been disseminated perpetuates the abuse initiated by the producer of the materials. . . .
Consumers such as [defendant] who ‘merely’ or ‘passively’ receive or possess child
pornography directly contribute to this continuing victimization. Having paid others to
‘act out’ for him, the victims are no less damaged for his having remained safely at
home[.]”).
6
In Shingleton, the defendant was convicted of twenty counts of possession of
child pornography in violation of the 2010 version of West Virginia Code § 61-8C-3. At
the time, West Virginia Code § 61-8C-3 provided, in part: “Any person who, with
knowledge, sends or causes to be sent, or distributes, exhibits, possesses or displays or
transports any material visually portraying a minor engaged in any sexually explicit
conduct is guilty of a felony[.]” This Court rejected the defendant’s double jeopardy
challenge to his multiple convictions under the statute as it existed prior to the significant
amendments made by the Legislature in 2014. Shingleton, 237 W.Va. at 687, 790 S.E.2d
at 523.
13
Cognizant of this harm, the West Virginia Legislature determined long ago
that it was necessary to prohibit possession of child pornography in order to halt sexual
exploitation and abuse of children when it enacted West Virginia Code § 61-8C-3.
Moreover, the Legislature concluded that certain sex offenders pose a significant risk to
society when it directed the courts to sentence those convicted of the crimes enumerated
in West Virginia Code § 62-12-26 to a period of supervised release of up to fifty years.
Possession of child pornography clearly is a serious offense. It is an unassailable
proposition that “[c]hild pornography harms and debases the most defenseless of our
citizens.” United States v. Williams, 553 U.S. 285, 307 (2008). In addition, the “heinous
nature of the acts involved in producing child pornography” encourage and foment such
conduct and likely “cause immeasurable emotional and psychological violence to the
children involved.” State v. Hargus, 232 W.Va. 735, 744, 753 S.E.2d 893, 902 (2013).7
In light of the principles pronounced above, we conclude that when
Petitioner searched the internet to obtain and view images and videos of infants and
7
In Hargus, the defendant pled guilty to one count of possession of child
pornography and was sentenced to two years of incarceration, a period of thirty years
extended supervision, and lifetime registration as a sex offender under West Virginia
Code § 62-12-26. Hargus, 232 W.Va. at 739, 753 S.E.2d at 897. Subsequently, the circuit
court found that he violated a condition of his supervised release by failing to register as a
sex offender. As a result, the circuit court modified the defendant’s supervised release; he
was sentenced to a post-revocation period of incarceration of five years and thereafter
ordered to complete the balance of his term of supervised release. Id. In Hargus, the
defendant argued that his additional incarceration was objectively disproportionate to his
crime. This Court rejected that argument because while the “crime did not involve sexual
contact, his consumption of child pornography made him an active participant in its
production and dissemination.” Id. at 744, 753 S.E.2d at 902.
14
toddlers being raped and sodomized by adult males – presumably for his sexual
gratification – he engaged in acts that were not only morally repugnant, they involved an
act of violence against a person within the meaning of West Virginia Code § 27-6A-3(h).
The critical point here is that those acts demonstrate he poses a risk of physical,
emotional or psychological harm to children. See George K., 233 W.Va. at 711, 760
S.E.2d at 525.
This Court does not have to resort to an academic exercise to conjure up
some “hypothetical harm” to victims of child pornography; the harsh reality remains that
their victimization is so real that “viewing the typical images involved in these cases will
flail a judge’s soul.” United States v. Campbell, 738 F. Supp. 2d 960, 962 (D. Neb. 2010);
see also United States v. Fiorella, 602 F. Supp. 2d 1057, 1075 n.8 (N.D. Iowa 2009) (“It is
easier to overlook the horrors of child pornography when, as is often the case, the
material at issue is not presented to the sentencing judge. For purposes of efficiency and
minimization of re-victimization of the children depicted, the government and the
defendant will often (and rightly so) enter into stipulations about the number and nature
of the photographs at issue. But the horrors of child pornography are real even if those
who sit in judgment do not have occasion to view them.”).8 It is “common ground” that
8
The appendix record before this Court does not contain the pornographic images,
but the description of those images is extraordinarily disturbing. During discovery, the
State filed six pictures or screen shots of what appears to be a female child engaged in
sexually explicit conduct with an adult male. Other file names of the images include titles
(continued . . .)
15
these victims suffer long-term emotional harm as a result of the memories of such
victimization and the “knowledge that a large, indeterminate number of individuals have
viewed and will in the future view images of the sexual abuse[.] . . . Harms of this sort
are a major reason why child pornography is outlawed.” Paroline, 134 S. Ct. at 1726.9
For these reasons, Petitioner’s theory in this case is irreconcilable with
George K. and he offers no compelling reason for this Court to depart from that
precedent. It is axiomatic that child pornography harms children and “the victimization
of a child depicted in pornographic materials flows just as directly from the crime of
knowingly receiving child pornography as it does from the arguably more culpable
offenses of producing or distributing child pornography.” United States v. Norris, 159
F.3d 926, 930 (5th Cir. 1998). The defendants who reproduce, distribute, or possess these
such as “pthc – dad & son awesome deep fuck of boy asshole.avi”, “(pthc) babyj – tied–
anal- force(2)300.avi”, and pictures of toddler boys and girls in sexual situations.
9
As the respondent victim in Paroline explained,
[e]very day of my life I live in constant fear that someone will
see my pictures and recognize me and that I will be
humiliated all over again. It hurts me to know someone is
looking at them – at me – when I was just a little girl being
abused for the camera. I did not choose to be there, but now I
am there forever in pictures that people are using to do sick
things. I want it all erased. I want it all stopped. But I am
powerless to stop it just like I was powerless to stop my
uncle. . . . My life and my feelings are worse now because the
crime has never really stopped and will never really stop. . . .
It’s like I am being abused over and over and over again.
134 S. Ct. at 1717.
16
images all play a part in sustaining this tragedy; they are all involved in the substantial
network of child pornography that derives from violent sexual acts performed on
children.
We therefore find the acts prohibited by West Virginia Code § 61-8C-3 are
sufficiently involved with the victimization of the children harmed in the images that they
trigger the application of West Virginia Code § 27-6A-3(h). The “end user” of child
pornography is not just tenuously involved with the commission of those violent,
abhorrent crimes against children; those acts of violence were committed, videotaped,
and distributed electronically for his or her use. Simply stated, those acts are so
intrinsically related to the abuse of children, they result in criminal prosecution and
lengthy terms of incarceration and supervised release. It necessarily follows that those
acts are sufficiently involved with the physical, emotional, and psychological harm to
children to support the determination that the incompetent defendant poses the risk of
dangerousness necessary to satisfy the requirements of West Virginia Code § 27-6A-3(h).
See Syl. Pt. 2, George K., 233 W.Va. at 701, 760 S.E.2d at 515.
Accordingly, we hold that distributing and exhibiting material depicting
minors engaged in sexually explicit conduct in violation of West Virginia Code § 61-8C­
3 (2014) is a crime that “involve[s] an act of violence against a person” within the
meaning of West Virginia Code § 27-6A-3(h) (2013) because it derives from and is
proximately linked to physical, emotional, and psychological harm to children. Thus,
17
Petitioner poses a sufficient risk of dangerousness to the community to justify the circuit
court’s exercise of jurisdiction over him pursuant to West Virginia Code § 27-6A-3(h).
B. Petitioner Remains Under the Circuit Court’s Jurisdiction
Having determined that Petitioner was charged with a felony crime
involving an act of violence against a person, the requirements of West Virginia Code §
27-6A-3(h) are satisfied. Thus, the circuit court maintains jurisdiction over him “until the
expiration of the maximum sentence” unless he “attains competency to stand trial and the
criminal charges reach resolution or the court dismisses the indictment or charge.” Id.
The circuit court found that the maximum penalty in this case would be a
ten-year term of incarceration.10 The circuit court should remain mindful, however, that
our
10
In the indictment, the grand jury found Petitioner “intentionally electronically
obtained 100 or more pictures and videos via the internet which depicted pre-teen
children engaged in sexual acts, in violation of W.VA. CODE §61-8C-3 (a) and (d), as
amended, against the peace and dignity of the State.” The parties agreed below that
Petitioner was facing up to ten years imprisonment because the number of images
possessed by him would fall under West Virginia § 61-8C-3(c), not (d). However, a
description of the content of the images indicates they portray sexual penetration of a
minor by an adult which would qualify for the section (d) enhancement for images that
depict violence against a child. See generally, United States v. Myers, 355 F.3d 1040,
1043-44 (7th Cir. 2004) (holding that sexual penetration of minor by adult would
necessarily cause pain and therefore qualify for federal statute violence enhancement, and
collecting cases from other circuits); accord United States v. McLaughlin, 760 F.3d 699,
704 (7th Cir. 2014). The parties apparently recognized the problem with the indictment
(continued . . .)
18
determination of whether a charged crime involves an act of
violence under W.Va. Code § 27-6A-3 is only a threshold
inquiry. With regard to incompetent defendants who are
charged with a crime involving an act of violence pursuant to
W.Va. Code § 27-6A-3(h), the duty of the court is not to
“lock them up and throw away the key.” Instead, under
W.Va. Code § 27-6A-3(h) the condition of those defendants
must at a minimum be reviewed annually, and reports
regarding their conditions must be submitted to and
considered by the court. W.Va. Code § 27-6A-3(h).
Additionally, W.Va. Code § 27-6A-3(h)-(i) require that an
incompetent defendant be committed to the least restrictive
environment necessary to treat the defendant while
simultaneously providing for the protection of the public.
George K., 233 W.Va. at 712, 760 S.E.2d at 526.
We reiterate that the purpose of the statutory scheme set forth in West
Virginia Code §§ 27-6A-3 to -6 is not to punish persons suffering from mental illness;
rather, it is to provide humane care and treatment to the incompetent defendant, and to
facilitate rehabilitation with the least restrictive environment. By maintaining jurisdiction
over Petitioner, the circuit court also must take necessary precautions to protect the
public.
not tracking the language found in section (d). In any event, Petitioner did not challenge
the sufficiency of the indictment and that issue is not before us.
Similarly, the circuit court failed to recognize that had Petitioner been convicted of
the charge, he also would have received up to fifty years of supervised release pursuant to
West Virginia Code § 62-12-26 (2014). See State v. Deel, 237 W.Va. 600, 607, 788
S.E.2d 741, 748 (2016) (holding supervised release statute, West Virginia Code § 62-12­
26, provides additional penalty to be imposed upon person who committed any of
enumerated sex offenses set forth therein). Therefore, the maximum sentence Petitioner
could receive for violating West Virginia Code § 61-8C-3(a) and (c) would be ten years
of incarceration and fifty years of supervised release. That issue is not before this Court.
19
In this case, the parties did not include Petitioner’s psychological reports in
the appendix record so it is not clear to this Court whether he is likely to ever reoffend or
pursue a contact sexual offense against a child. On remand, the circuit court should
consider Petitioner’s psychological evaluations and sex-offender risk assessment to
determine his treatment needs and exercise its broad flexibility to impose the appropriate
restrictions necessary to protect the public in accordance with the provisions of West
Virginia Code §§ 27-6A-3 to -6.11
IV. CONCLUSION
For the reasons stated above, we affirm the order of the Circuit Court of
Preston County.
Affirmed.
11
We recognize that not all child pornography offenders pose the same degree of
danger to the community. Of critical importance is the availability of effective sex
offender treatment. See generally, United States v. D.M., 942 F. Supp. 2d 327, 334
(E.D.N.Y. 2013) (“Particularly useful at sentencing . . . is expert testimony. The
evaluation of experts in the fields of psychology, well-trained on unique issues relevant to
sex offenders, can be highly relevant in helping the court determine the effectiveness of a
particular sentence.”).
20