          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

