                                                            FILED
No. 16-0357 - State of West Virginia v. Wayne Dubuque September 21, 2017
                                                                    released at 3:00 p.m.
                                                                  RORY L. PERRY, II CLERK

                                                                SUPREME COURT OF APPEALS

                                                                     OF WEST VIRGINIA


LOUGHRY, Chief Justice, concurring, joined by WORKMAN, J., and WALKER, J.:

              In consideration of the Legislature’s 2014 amendments to West Virginia Code

§ 61-8C-3, I am compelled to concur in the decision to remand this action to the circuit court

for resentencing. While I might wish to affirm the sentence that was imposed upon the

petitioner, the current version of West Virginia Code § 61-8C-3 prevents me from doing so.



              In State v. Shingleton, 237 W.Va. 669, 790 S.E.2d 505 (2016), the defendant

was convicted of twenty counts of possession of material visually portraying a minor engaged

in sexually explicit conduct. Because the defendant’s criminal conduct occurred prior to

2014, he was tried and convicted under the 2010 version of West Virginia Code § 61-8C-3,

which provided, in its entirety, as follows:

                      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, and, upon conviction
              thereof, shall be imprisoned in the penitentiary not more than
              two years, and fined not more than two thousand dollars.

The defendant appealed arguing, in part, that his sentencing on twenty counts of possession

of a minor engaged in sexually explicit conduct, as depicted in twenty separate photographs,

violated double jeopardy. Upon our examination of our prior case law addressing double



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jeopardy and our analysis of the unit of prosecution intended by the Legislature in West

Virginia Code § 61-8C-3 (2010), we concluded that

              rather than utilizing the plural word “materials,” the Legislature
              chose to use the word “material” in West Virginia Code § 61­
              8C-3. We agree with the State that as used in this statutory
              context, “material” refers to the particular media that is “visually
              portraying a minor engaged in any sexually explicit conduct[,]”
              whether it be a photograph, digital image, video, etc. Moreover,
              the use of the singular “minor,” rather than the plural “minors,”
              reflects the Legislature’s intent to protect each and every child
              victim.

Shingleton, 237 W.Va. at 687, 790 S.E.2d at 523; see also Morgan v. Ballard, No. 11-1677,

2013 WL 149602 (W.Va. Jan. 14, 2013) (memorandum decision) (affirming circuit court’s

denial of petition for writ of habeas corpus where petitioner had been convicted on ten counts

of violating West Virginia Code § 61-8C-3 (2010) for his possession of ten photographs);

State v. Richard D., No. 13-1250, 2015 WL 3751819 (W.Va. June 15, 2015) (memorandum

decision) (affirming defendant’s convictions on five counts of possession of material

depicting minor engaged in sexually explicit conduct in violation of West Virginia Code §

61-8C-3 (2010)).



              In 2014, the Legislature enacted significant amendments to West Virginia Code

§ 61-8C-3 that resulted in substantial changes, including a graduated sentencing scheme. The

amended version of this statute currently provides, as follows:




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              (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.

              (b) Any person who violates the provisions of subsection (a) of
              this section when the conduct involves fifty or fewer images
              shall, upon conviction, be imprisoned in a state correctional
              facility for not more than two years or fined not more than
              $2,000 or both.

              (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.

              (e) 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.



              While this Court could have upheld the petitioner’s convictions and sentencing

on five counts of violating West Virginia Code §61-8C-3 under the 2010 version of that

statute, just as we affirmed multiple violations and convictions in Morgan, Richard D., and

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Shingleton, the current version of the statute mandates that images of child pornography be

aggregated for sentencing purposes. Although the State argues that the unit of prosecution

under West Virginia Code § 61-8C-3 (2014) varies depending on the storage device, the

current statutory context does not support that conclusion. Moreover, the State’s position

would lead to inequitable results, as aptly explained in this Court’s opinion in this matter.



              Certainly, it is within the purview of the Legislature to make each image of

child pornography a statutory violation. While it has not done so, other states have. See, e.g.,

Ala. Code 1975 §13A-12-190(16) [2006] (“SEPARATE OFFENSE. The depiction of an

individual less than 17 years of age that violates this division shall constitute a separate

offense for each single visual depiction.”); Alaska Stat. § 11.61.127(c) (2010) (“Each film,

audio, video, electronic, or electromagnetic recording, photograph, negative, slide, book,

newspaper, magazine, or other material that visually or aurally depicts conduct described in

AS 11.41.455(a) that is possessed or accessed in violation of (a) of this section is a separate

violation of this section.”); Fla. Stat. Ann. § 827.071(5)(a) (“It is unlawful for any person to

knowingly possess, control, or intentionally view a photograph, motion picture, exhibition,

show, representation, image, data, computer depiction, or other presentation which, in whole

or in part, he or she knows to include any sexual conduct by a child. The possession, control,

or intentional viewing of each such photograph, motion picture, exhibition, show, image,

data, computer depiction, representation, or presentation is a separate offense. If such


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photograph, motion picture, exhibition, show, representation, image, data, computer

depiction, or other presentation includes sexual conduct by more than one child, then each

such child in each such photograph, motion picture, exhibition, show, representation, image,

data, computer depiction, or other presentation that is knowingly possessed, controlled, or

intentionally viewed is a separate offense.”).



              Child pornography is not only a heinous crime, it is an act of violence against

a child:

              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.

Syl. Pt. 5, State v. Riggleman, 238 W.Va. 720, 798 S.E.2d 846 (2017). It is critical to

remember that

              [t]he “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.

Riggleman, 238 W.Va. at __, 798 S.E.2d 854.




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              Clearly, such violence demands a harsh punishment. Under the 2010 version

of West Virginia Code § 61-8C-3, harsh punishments could be imposed, and this Court

affirmed such punishments in Morgan, Richard D., and Shingleton. However, this Court

must apply West Virginia Code § 61-8C-3, as it is currently written. Consequently, on

remand, the original consecutive sentencing imposed upon the petitioner of twenty-five to

seventy-five years imprisonment will be reduced pursuant to the current version of the statute

to five to fifteen years imprisonment for his possession of five VHS tapes depicting sexual

violence against a young girl. It is now up to the Legislature to decide whether it will bring

West Virginia in line with other states that have statutes expressly making each image of

child pornography a separate statutory offense.



              For these reasons, I respectfully concur.




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