State v. Riggleman

• Decision Date: 06 April 2017
• Docket Number: No. 16-0012,16-0012
• Citation: 798 S.E.2d 846
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. Shawn Thomas RIGGLEMAN, Petitioner

798 S.E.2d 846

STATE of West Virginia, Respondent

v.Shawn Thomas RIGGLEMAN, Petitioner

No. 16-0012

Supreme Court of Appeals of West Virginia.

Submitted: February 15, 2017

Filed: April 6, 2017

Claire L. Niehaus, Esq., Public Defender Corporation, Eighteenth Judicial Circuit, Kingwood, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, David A. Stackpole, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent

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.

....

(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 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, 110 S.Ct. 1691, 109 L.Ed.2d 98 (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 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).

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 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. 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, ...