                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                             March 11, 2019
vs) No. 18-0264 (Jefferson County 19-2017-F-4)                               EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Damon Daniel Greenfield,
Defendant Below, Petitioner


                             MEMORANDUM DECISION
       Petitioner Damon Daniel Greenfield, by counsel Kevin D. Mills and Shawn R.
McDermott, appeals the Circuit Court of Jefferson County’s March 1, 2018, sentencing order
following his conviction for one count of possession of material depicting minors engaged in
sexually explicit conduct. Respondent the State of West Virginia, by counsel Scott E. Johnson,
submitted a response to which petitioner submitted a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate
under Rule 21 of the Rules of Appellate Procedure.

        In June of 2015, the Jefferson County Sheriff’s Department initiated an investigation
through the Internet Crimes Against Children database, which produced a list of internet protocol
addresses in Jefferson County associated with the digital transfer of child pornography. The
investigation showed that by April 8, 2016, petitioner’s computer was shown to have transferred
the digital media files of known child pornography 700 times from a file transfer service called
FrostWire. Some files were only partially downloaded to his computer; however, one of the
completed downloads with a nearly twenty-seven minute video “consist[ing] of a nude white
female child (approximately 5-8 years old) on a bed” while “[a]n adult female perform[ed] oral
sex on the child and other acts with sexual instruments. The child then perform[ed] sexual acts
on the adult female.”

        A Jefferson County grand jury indicted petitioner on two counts – one count of
possession of material depicting a minor engaged in sexually explicit conduct for six hundred or
more images and one count of indecent exposure from an unrelated incident. Petitioner entered a
guilty plea to the lesser included offense of possession of material depicting a minor engaged in
sexually explicit conduct for greater than 50 images but less than 600 images. The plea
agreement provided the circuit court with discretion as to sentencing. In return for the plea, the
State dismissed the indecent exposure charge. During his plea hearing, petitioner admitted that

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he “downloaded material that contained child pornography on [his] computer.”

        Petitioner requested an alternative sentence of probation based on his assertion that his
criminal conduct was “simply the possession of child pornography,” that petitioner was born
with a predisposition to watch child pornography, that he had sought treatment and education
after his arrest, that medical benefits available because of his military service would be
terminated upon incarceration, and because petitioner suffers from HIV. The circuit court entered
its sentencing order on March 1, 2018, sentencing petitioner to an indeterminate term of not less
than two nor more than ten years in the penitentiary. Petitioner was also ordered to pay a fine in
the amount of $5,000 and be subject to ten years of extended supervision upon his release from
incarceration. Further, petitioner was ordered to register as a sexual offender for life.

         “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W. Va. 407, 710 S.E.2d 98 (2011). “This Court has also specified that ‘[s]entences imposed by
the trial court, if within statutory limits and if not based on some [im]permissible factor, are not
subject to appellate review.’ Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504
(1982).” State v. Fleming, 237 W. Va. 44, 58, 784 S.E.2d 743, 757 (2016).

        On appeal, petitioner asserts four assignments of error. First, he contends that the circuit
court’s imposition of the statutory sentence of two to ten years of incarceration violated the
constitutional prohibition against cruel and unusual punishment. He next argues that the sentence
violated the proportionality principles of the West Virginia and United States Constitutions
because, due to his medical conditions, the sentence essentially amounts to a death sentence. 1 In


          1
              As this Court set forth in Nobles v. Duncil, 202 W. Va. 523, 533, 505 S.E.2d 442, 452
(1998),

          [t]here is no question that a governmental unit . . . has an “obligation to provide
          medical care for those whom it is punishing by incarceration.” Estelle v.
          Gamble, 429 U.S. at 103, 97 S.Ct. at 290, 50 L.Ed.2d at 259 (1976). “Deliberate
          indifference to serious medical needs of prisoners constitutes unnecessary and
          wanton infliction of pain proscribed by the Eighth Amendment.” Norris v.
          Detrick, 918 F.Supp. 977, 984 (N.D.W.Va.1996), aff'd, 108 F.3d 1373 (4th
          Cir.1997) (citation omitted). “To establish that a health care provider’s actions
          constitute deliberate indifference to a serious medical need, the treatment, or lack
          thereof, must be so grossly incompetent, inadequate, or excessive as to shock the
          conscience or to be intolerable to fundamental fairness.” Id., citing Miltier v.
          Beorn, 896 F.2d 848, 851 (4th Cir.1990).

In this case, petitioner does not allege that he is not receiving medical treatment for his
conditions. However, he desires to have different medications than those provided by the
correctional facility to treat some of those conditions.



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his third allegation of error, he asserts that the circuit court abused its discretion because it failed
to provide petitioner with individualized sentencing, instead sentencing him based on the
category of his offense. We will address these first three alleged errors jointly.

        In support of those contentions, petitioner argues that the circuit court failed to address
his “serious underlying medical needs” and sentenced him without commenting on petitioner’s
medical needs during his incarceration. At sentencing, and before this Court, he argued that due
to his diagnosed HIV, hepatitis, and serious mental health issues, the statutory sentence equates
to a death sentence. Further, he contends that his sentence violates the proportionality principle
of the West Virginia Constitution because it is disproportionate to the nature of the offense and
petitioner’s “characteristics.” Citing only out-of-state authority, petitioner also argues that where
a sentencing judge is given discretion to impose an appropriate sentence but fails to exercise that
discretion, the sentencing procedure is defective and must be remanded for resentencing.2

       With regard to proportionality, as this Court recently set forth in Fleming,

       [i]n State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), this Court explained
       “[t]here are two tests to determine whether a sentence is so disproportionate to a
       crime that it violates our constitution.” Id. at 272, 304 S.E.2d at 857. “The first is
       subjective and asks whether the sentence for the particular crime shocks the
       conscience of the court and society. If a sentence is so offensive that it cannot
       pass a societal and judicial sense of justice, the inquiry need not proceed
       further.” Id. “When it cannot be said that a sentence shocks the conscience, a
       disproportionality challenge is guided by the objective test we spelled out in
       Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205
       (1981)[.]” Id. That test provides as follows:

               In determining whether a given sentence violates the
               proportionality principle found in Article III, Section 5 of the West
               Virginia Constitution, consideration is given to the nature of the
               offense, the legislative purpose behind the punishment, a
               comparison of the punishment with what would be inflicted in
               other jurisdictions, and a comparison with other offenses within the


       2
          Petitioner relies upon State v. Ayers, 590 N.W.2d 25 (Iowa 1999), in support of this
argument. However, at the time Ayers was decided, Iowa Code § 901.10 provided, in relevant
part, that “[a] court sentencing a person for the person’s first conviction under section
124.406, 124.413, or 902.7 may, at its discretion, sentence the person to a term less than
provided by the statute if mitigating circumstances exist and those circumstances are stated
specifically in the record. . . .” The Iowa court has determined that the district court has the
ultimate authority to determine the extent of any reduction in the mandatory minimum sentence
imposed on a defendant once the prosecutor has requested a reduction based on the defendant’s
cooperation and that the amount of any such reduction rests in the court’s sound discretion. See
State v. Johnson, 630 N.W.2d 583 (Iowa 2001). Petitioner does not cite to any similar West
Virginia statute or rule.


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               same jurisdiction.

       166 W.Va. at 523–24, 276 S.E.2d at 207. “While our constitutional
       proportionality standards theoretically can apply to any criminal sentence, they
       are basically applicable to those sentences where there is either no fixed
       maximum set by statute or where there is a life recidivist sentence.” Id. at 531,
       276 S.E.2d at 211.

Fleming, 237 W. Va. at 58-59, 784 S.E.2d at 757-58.

        Petitioner was originally charged with possessing 600 or more images depicting minors
engaged in sexually explicit conduct, pursuant to West Virginia Code § 61-8C-3(d), which
provides that an individual “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.” He
was also charged with a misdemeanor charge of indecent exposure that was dismissed as part of
his plea agreement. Pursuant to that plea agreement, petitioner pled guilty to possessing “more
than fifty but fewer than six hundred images” pursuant to West Virginia Code § 61-8C-3(c). That
subsection sets forth the statutory penalty of imprisonment “in a state correctional facility for not
less than two nor more than ten years or fined not more than $5,000, or both.” The circuit court
sentenced petitioner to an indeterminate term of not less than two nor more than ten years in the
penitentiary. Petitioner was also ordered to pay a fine in the amount of $5,000. That sentence is
clearly in accordance with the statute.

        During his plea colloquy, petitioner admitted that he “downloaded material that contained
child pornography on [his] computer[,]” and his counsel stated that he had personally “reviewed
the computer evidence in this case and the evidence would consist of at least 50 to 600 images
that was[sic] found on the computer.” Petitioner agreed with his counsel’s assessment. The
circuit court properly informed petitioner of the potential sentence and fine, and petitioner
confirmed that he was aware of the maximum penalty. In addition, petitioner acknowledged that
he was aware that the circuit court had discretion in sentencing. According to petitioner’s
presentence investigation report (“PSI”), petitioner admitted dealing with psychological issues
throughout his life and that prior to his “arrest in this case [he] was dealing with [a] problematic
addiction to pornography that [he] would download from the internet, which would involve
pornography that many people would consider extreme . . . .” The PSI also included information
related to petitioner’s medical conditions and medications.

        While conducting petitioner’s sentencing hearing, the circuit court stated that it had read
the letters attached to petitioner’s memorandum in support of alternative sentencing, and
petitioner’s counsel went through those letters. After hearing testimony from various witnesses
and the arguments of both petitioner’s counsel and the State, the circuit court explained as
follows:

       Children are our most vulnerable members of our society and they are not just
       hurt by the person who produces or makes the videos and puts their hands on
       them, they are injured every time someone views the video. Those people who are
       making the videos have the incentive to create more videos and harm more

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       children when there is a market for this material. So the people who download
       and view create a market and a demand placing more children at risk and a greater
       and greater harm in our society. Those children’s sentence in life is going to be
       that they have been victimized and they are going to have a much more difficult
       traumatic outcome in their lives than what I am imposing today, and, that is, I am
       imposing the sentence which the statute requires. . . The other factor in sentencing
       along with rehabilitation and punishment is the fact that punishment can also deter
       this conduct. . . .

Based upon our review of the record, we find that the circuit court did not abuse its discretion in
considering the nature of petitioner’s offense, petitioner’s admissions, witness letters and
testimony, and the PSI before imposing the maximum statutory sentence. It is clear from the
record that the circuit court was provided with information concerning petitioner’s medical
conditions prior to issuing his sentence. Further, petitioner’s sentence does not shock the
conscience. Therefore, we find no merit in this alleged errors.

        Petitioner’s final assignment of error is that his procedural rights to a fair sentencing were
violated when the State’s witness testified to a purported criminal offense petitioner committed
that was not included in the PSI, preventing petitioner from adequately addressing the issue. He
contends that the State’s only witness at sentencing, Sergeant Steven Holz of the Jefferson
County Sheriff’s Department, presented testimony regarding a prior charge of indecent exposure
in Maryland for which petitioner was found not guilty following a jury trial. Because information
regarding that charge was not included in the PSI, petitioner argues that he was not provided the
notice required under Rule 32 of the West Virginia Rules of Criminal Procedure. Without citing
any authority, petitioner further argues that he is also entitled to assert objections to any
inaccuracies or errors contained in the PSI, along with a hearing on those objections prior to
sentencing. He asserts that the State “effectively sandbagged” him because the State failed to
give notice of the use of that prior charge for sentencing purposes. However, petitioner’s
argument ignores the fact that his own attorney is the one who elicited the testimony to which he
now objects.

        During the sentencing hearing, the State elicited testimony from Sergeant Holz about an
indecent exposure charge against petitioner that stemmed from an incident in Jefferson County in
March of 2016; that was the indecent exposure charge dismissed as part of the plea agreement in
the underlying matter. During cross-examination, petitioner’s counsel asked “[y]ou’re aware that
prior to the, again, indecent exposure arrest and child pornography arrest, prior to that,
[petitioner] had no criminal history, correct?” Sergeant Holz responded that petitioner “was
charged with another indecent exposure in Maryland. He was found not guilty.” Upon further
questioning, Sergeant Holz stated that he had not reviewed the PSI so he had no personal
information regarding the inclusion of that information in the PSI.

       This Court has long held as follows:

               “‘An appellant or plaintiff in error will not be permitted to complain of
       error in the admission of evidence which he offered or elicited, and this is true
       even of a defendant in a criminal case.’ Syl. Pt. 2, State v. Bowman, 155 W.Va.


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       562, 184 S.E.2d 314 (1971).” Syl. Pt. 1, State v. Compton, 167 W.Va. 16, 277
       S.E.2d 724 (1981).

Syl. Pt. 3, State v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996). See also Shamblin v.
Nationwide Mut. Ins. Co., 183 W. Va. 585, 599, 396 S.E.2d 766, 780 (1990) (“[T]he appellant
cannot benefit from the consequences of error it invited.”); In re Tiffany Marie S., 196 W. Va.
223, 233, 470 S.E.2d 177, 187 (1996) (“[W]e regularly turn a deaf ear to error that was invited
by the complaining party.”); Comer v. Ritter Lumber Co., 59 W. Va. 688, 689, 53 S.E. 906, 907
(1906) (the party inviting “the error . . . must accept its results”); Syl. Pt. 1, in part, McElhinny v.
Minor, 91 W. Va. 755, 114 S.E. 147 (1922) (“appellant cannot complain of errors . . . which he
alone caused.”); Syl. Pt. 2, Young v. Young, 194 W. Va. 405, 460 S.E.2d 651 (1995) (“A
judgment will not be reversed for any error in the record introduced by or invited by the party
seeking reversal.” (Citation omitted)). Therefore, we find no merit in petitioner’s final
assignment of error.

                                                                                             Affirmed.

ISSUED: March 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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