IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2022 Term

_____________________

No. 21-0263

_____________________

STATE OF WEST VIRGINIA 

Plaintiff Below, Respondent,

v.

IZZAC CHRISTOPHER WEISTER,

Defendant Below, Petitioner.

___________________________________________________________

Appeal from the Circuit Court of Jefferson

The Honorable David Hammer, Judge

Case No. CC-19-2020-F-9

AFFIRMED

_________________________________________________________

Submitted: September 27, 2022

Filed: November 3, 2022

Kevin D. Mills, Esq.

Shawn R. McDermott, Esq.

MillsMcDermott, PLLC

Martinsburg, West Virginia

Counsel for Petitioner

Patrick Morrisey, Esq.

Attorney General

Lara K. Bissett, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for Respondent

JUSTICE WOOTON delivered the Opinion of the Court.

FILED

November 3, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

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. “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, 703, 760 S.E.2d 512, 517 (2014).

3. “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, 703, 760 S.E.2d 512, 517 (2014).

4. “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).
ii

5. Soliciting a minor via a computer, West Virginia Code § 61-3C-14b 

(2020), and use of obscene matter with intent to seduce a minor, W. Va. Code § 61-8A-4 

(2020), are crimes that involve “an act of violence against a person” within the meaning of 

West Virginia Code section 27-6A-3 (2007 & 2021), because these crimes pose a risk of 

physical harm, severe emotional harm, or severe psychological harm to children.
1

WOOTON, Justice:

The petitioner, Izzac Christopher Weister, appeals the March 8, 2021, order 

of the Circuit Court of Jefferson County, West Virginia, that found he was not competent 

to stand trial for his alleged crimes – two counts of solicitation of a minor via a computer1

and one count of use of obscene matter with intent to seduce a minor2 – and committed 

him to William R. Sharpe, Jr. Hospital for twenty-five years or until he regains competency 

and his criminal charges can be resolved. The petitioner argues that the court erred: 1) in 

finding the offenses of solicitation of a minor via a computer and use of obscene matter 

with intent to seduce a minor involved acts of violence against a person; and 2) in finding 

it had jurisdiction over him for a period of twenty-five years. Upon our careful review of 

the briefs, the parties’ arguments, the appendix record, the applicable law, and all other 

matters before the Court, we affirm the circuit court’s decision.

I. Facts and Procedural Background

The petitioner is approximately twenty-three years old. His medical history 

indicates that he was exposed to drugs in utero. In 2017, he contracted a bacterial infection 

that caused extensive injury to the frontal and temporal lobes of his brain resulting in 

1 See W. Va. Code § 61-3C-14b (2020) (pertaining to solicitation of a minor via 

computer).

2

See W. Va. Code § 61-8A-4 (2020) (concerning use of obscene matter with intent 

to seduce a minor). 
2

extensive brain injuries; changes in personality, including increased impulsivity; poor 

judgment; disinhibition; difficulty regulating emotions; speech, auditory, and visual 

impairments; memory impairment; and sensory difficulties. 

According to the criminal complaint filed on June 11, 2019, by Sgt. Keith 

Sigulinsky of the Ranson Police Department, the officer met with the fourteen-year-old 

victim’s grandmother, who was also the victim’s legal guardian. The grandmother told the 

officer that the previous evening the victim disclosed that she received some sexual 

messages from her half-brother, the petitioner, who was then nineteen years old. Sgt. 

Sigulinsky questioned the victim about the messages and learned that she had an Instagram 

application on her phone that contained the conversation between her and the petitioner. 

The officer viewed the text conversation, which included the following 

exchange initiated by the petitioner: “Have you ever wondered what it would be like if u 

had sex with a brother?” The victim replied, “No. Why?” The petitioner then wrote, “Y 

Not Cutie.” The victim replied, “For one you are my brother 2 you are 19.” The petitioner 

responded, “So what[?]” The victim texted, “So I can’t.” The petitioner responded, “Yes, 

u can[,]” and then asked the victim, “Y can’t u[?]” The victim responded that she was 

fourteen. The petitioner then texted that the victim was “sexy[,]” and again asked her, 

“Would u want to have sex with me.” The victim replied that “[y]ou’re my brother[,]” to 

which the petitioner replied, “So ur my half sister it’s not a big deal.” The petitioner 

continued that he “want[ed] to f—k u and I’ve been wondering what it would be like if me 
3

and u had sex and I really want to f—k one of my sisters. And I picked u. I want to be 

with u.” He later texted the victim, “Send me your boobs,” followed by, “I want to f—k 

u.” The petitioner also sent the victim a picture of his penis; however, the victim did not 

open that message. After the victim told her grandmother about the messages, the latter 

contacted the police the next day. 

On January 21, 2020, the petitioner was indicted on two counts of soliciting 

a minor via a computer and one count of use of obscene matter with intent to seduce a 

minor. See supra notes 1 and 2. Following his indictment, the petitioner was evaluated by 

two experts regarding his competency to stand trial. The petitioner hired Dr. Sara Boyd, a 

forensic psychologist, who evaluated him and, in her report dated August 27, 2020, found 

that due to his brain injuries he was not competent and not substantially likely to attain 

competency. In October, 2020, the State hired Dr. David Clayman, also a forensic 

psychologist, to evaluate the petitioner. In his report dated December 22, 2020, Dr. 

Clayman concurred with Dr. Boyd’s opinion that the petitioner was not competent to stand 

trial and that it was “highly unlikely that given Mr. Weister’s history and the extent of his 

organic brain injury that he will be able to gain the requisite skills needed to achieve 

adjudicative competence within the timeframe permitted.”

On January 5, 2021, the circuit court conducted a hearing in regard to the 

petitioner’s competency. By order entered that same day, the court made the preliminary 
4

finding that “[p]ursuant to W. Va. Code § 27-6A-3(a), and by agreement of the parties,3 . . 

. [the petitioner] is not competent to stand trial and is unlikely to attain competency within 

the next three months.” (Footnote added). However, the court specifically noted that the 

parties disagreed on the issue of whether the crimes charged in the indictment involved 

acts of violence. See W. Va. Code § 27-6A-3(g) and (h) (2007). The court instructed the 

parties to brief the issue and a hearing was scheduled to be held on March 8, 2021. 

Following the parties’ submission of briefs and their oral arguments, the 

circuit court found in its March 8, 2021, order that 

the indicted offenses, two counts of Solicitation of a Minor via 

a Computer, W. Va. Code § 61-3C-14b, and one count of Use 

of Obscene Mater [sic] with Intent to Seduce a Minor, W. Va. 

Code § 61-8A-4, are each felony offenses involving an act of 

violence against a person. W. Va. Code § 27-6A-3(h), State v. 

George K., 233 W. Va. 698 (2014).

3 A stipulation in regard to the petitioner’s competency was filed on January 22, 

2021, in which:

3. The State and defense counsel agree that based upon the 

opinions of the experts [referring to Dr. Boyd and Dr. 

Clayman] . . . , the Court should make the findings that the 

Defendant does not have a sufficient present ability to consult 

with his lawyer with a reasonable degree of rational 

understanding and a rational, as well as factual, understanding 

of the proceedings against him and that the Defendant is not 

substantially likely to attain competency within the ensuing 

three months.

The stipulation noted the parties’ disagreement in regard to “whether the indicted offenses 

involve an act of violence against a person[,]” and the agreement expressly did not cover 

this issue. 
5

The court further found that the petitioner could have been convicted of the counts charged 

in the indictment but for the determination that he was not competent to stand trial. The 

court determined that it had jurisdiction over the petitioner for twenty-five years, which 

was the maximum sentence that he could have received upon conviction, and committed 

the petitioner to William R. Sharpe Jr. Hospital, finding that it was “the current least 

restrictive environment available to manage the defendant and allow for the protection to 

the public.” The court also ordered that “a qualified forensic evaluator . . . conduct a 

dangerousness evaluation including the dangerousness risk factors within thirty days” of 

the petitioner’s admission and render a report to the court within ten days after the 

evaluation was complete. It is from this order the petitioner appeals.

II. Standard of Review

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); accord State v. George K., 233 W.Va. 698, 703, 760 S.E.2d 512, 517 (2014). 

We examine the petitioner’s assignments of error under this standard of review.

III. Discussion

A. Crimes Involving Acts of Violence Against a Person

The petitioner first argues that the circuit court erred in finding that the 

offenses of solicitation of a minor via a computer, W. Va. Code § 61-3C-14b, and use of 
6

obscene matter with intent to seduce a minor, W. Va. Code § 61-8A-4, involved acts of 

violence against a person within the meaning of West Virginia Code section 27-6A-3(h). 4

4

We readily dispense with two of the petitioner’s convoluted arguments made in 

support of this assigned error. Specifically, he argues that the rule of lenity should apply to 

our interpretation of the phrase “involves an act of violence against a person” so as to afford 

him a favorable interpretation of that phrase, as well as a favorable application in regard to 

the maximum period of commitment he should have received. See W. Va. Code § 27-6A3. He also argues that the charged offenses do not require extended supervision pursuant 

to West Virginia Code section 62-12-26 (2020) and therefore should not require extended 

jurisdiction under the criminal competency statute. 

We reject these arguments for the following reasons: First, in George K., this Court 

rejected the rule of lenity argument and determined that it is not applicable in the criminal 

competency context. See 233 W. Va. at 706, 760 S.E.2d at 520 (finding that the statute is 

not punitive in nature and, therefore, “the rule requiring the Court to construe penal statutes 

in favor of the defendant is inapplicable to the present case.”). Second, the petitioner’s 

argument that the competency statute should be read in pari materia with the extended 

supervision for sex offender statute, W. Va. Code § 62-12-26, also fails because the 

in pari materia rule of statutory construction applies . . . only 

when the particular statute is ambiguous: “‘The rule that 

statutes which relate to the same subject should be read and 

construed together is a rule of statutory construction and does 

not apply to a statutory provision which is clear and 

unambiguous.’ Syl. pt. 4, Manchin v. Dunfee, 174 W.Va. 532, 

327 S.E.2d 710 (1984), quoting syl. pt. 1, State v. Epperly, 135 

W.Va. 877, 65 S.E.2d 488 (1951).” 

Kimes v. Bechtold, 176 W. Va. 182, 185, 342 S.E.2d 147, 150 (1986). Here, the petitioner’s 

contention that the statutes should be read in pari materia is in direct conflict with his 

position that the statute is clear and unambiguous. Moreover, the two relevant statutes do 

not relate to the same subject. Extended supervision for convicted sex offenders necessarily 

involves a form of punishment that occurs as a result of a conviction. See Syl. Pt. 3, in 

part, State v. Deel, 237 W. Va. 600, 788 S.E.2d 741 (2016) (“The supervised release statute, 

West Virginia Code § 62-12-26, provides for an additional penalty to be imposed upon a 

person who is convicted of any of the enumerated sex offenses set forth therein.”). In 

contrast, the criminal competency statute involves an individual who is charged with a 

crime but not convicted because he or she is deemed not competent to stand trial. Thus, 

these two statutes involve very different concepts, do not relate to the same subject, and 

should not be read in pari materia. See Kimes, 176 W. Va. at 185, 342 S.E.2d at 150. 
7

He contends that this Court’s prior decisions in George K., 233 W.Va. 698, 760 S.E.2d 

512, and State v. Riggleman, 238 W. Va. 720, 798 S.E.2d 846 (2017), were erroneously 

decided and asks this Court to overturn both cases. He asserts that the unambiguous, plain 

language, together with a “common sense reading” of the phrase “an act of violence against 

a person” contained in West Virginia Code section 27-6A-3(h), compel the conclusion that 

the charging statutes require that the offenses involve physical force and actual or 

threatened bodily injury. He further argues that even if the law enunciated in George K. 

and Riggleman applies, the offenses for which he is charged in this case do not involve an 

act of violence against a person. 5 The State counters that the law on this issue is well settled

as it relates to this Court’s interpretation of the meaning of “an act of violence against a 

person.” Thus, the State contends that, applying this Court’s precedents established in 

George K. and Riggleman, the petitioner’s offenses involve acts of violence. See W. Va. 

Code § 27-6A-3. We agree with the State’s position. 

At the time the petitioner was indicted, West Virginia Code § 27-6A-3(h)

(2007), provided:

(h) If at any point in [criminal] proceedings 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 in 

which the misdemeanor or felony does involve an act of 

5 The reason the petitioner seeks such a determination is that under West Virginia 

Code section 27-6A-3(g), if a person is indicted on a felony charge not involving an act of 

violence against a person, is found not competent to stand trial, and is not substantially 

likely to attain competency then the criminal charges are to be dismissed.
8

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. Notice of the maximum sentence period with an end 

date shall be provided to the mental health facility. The court 

shall order a qualified forensic evaluator to conduct a

dangerousness evaluation to include dangerousness risk factors 

to be completed within thirty days of admission to the mental 

health facility and a report rendered to the court within ten 

business days of the completion of the evaluation. The medical 

director of the mental health facility shall provide the court a 

written clinical summary report of the defendant's condition at 

least annually during the time of the court's jurisdiction. The 

court's jurisdiction shall continue an additional ten days 

beyond any expiration to allow civil commitment proceedings 

to be instituted by the prosecutor pursuant to article five of this 

chapter. The defendant shall then be immediately released 

from the facility unless civilly committed.

6

6 The Legislature amended West Virginia Code section 27-6A-3 in 2021 and it 

currently provides:

(f) Subject to subsection (i) of this section, if at any point in the 

proceedings a defendant who has been indicted or charged 

with a misdemeanor or felony involving an act of violence 

against a person is found not competent to stand trial and is 

found not substantially likely to attain competency after having 

received competency restoration services for 180 days, he or 

she shall be placed in the least restrictive setting and shall 

remain under the jurisdiction of the court upon any conditions 

that the court considers appropriate and the charges against him 

or her shall be held in abeyance. . . . 
9

Id. (emphasis and footnote added). At issue is whether the felonies for which the petitioner 

was indicted involved “an act of violence against a person.” Id. As previously mentioned, 

this Court addressed this issue in George K., 233 W. Va. 698, 760 S.E.2d 512, and 

Riggleman, 238 W. Va. 720, 798 S.E.2d 846. 

In George K., a case that involved the crimes of third-degree sexual assault 

and sexual abuse by a parent, guardian, custodian or person in position of trust, the circuit 

court determined that the petitioner was not competent to stand trial and was not likely to 

attain competency pursuant to West Virginia Code section 27-6A-3(h) (2007). See 233 W. 

Va. at 701, 760 S.E.2d at 515. The court further found that the crimes at issue involved 

“an act of violence against a person” pursuant to the competency statute and determined 

that it would maintain jurisdiction over the petitioner for a period of fifty years, which was 

the maximum possible sentence he would have received if he had been convicted of the 

crimes charged, or until he attained competency. Id. The defendant, who was committed 

to a mental health facility, appealed the court’s ruling raising the exact issue here – that the 

circuit court erred in finding that the crimes with which he had been charged involved an 

Id. (emphasis added). Based on a plain reading of this language, we reject the petitioner’s 

argument that the 2021 amendment “makes clear that an offense that involves an act of 

violence against a person requires the risk of bodily injury to a person.” The petitioner fails 

to cite to any specific language in the statute adding this alleged clarity, and our 

independent review of the 2007 and 2021 versions of the statute reveals that the language 

at issue is found in both and has not materially changed. Therefore, the law established in 

George K. and Riggleman controls. 
10

act of violence under West Virginia Code section 27-6A-3(h). See 233 W. Va. at 701, 760 

S.E.2d at 515. 

On appeal, the Court undertook an examination of what an “act of violence” 

meant under West Virginia Code section 27-6A-3(h). 7 The Court rejected the notion that 

if “an act of violence” was not a specific statutory element of the crime charged then the 

crime did not fall within the meaning of “involved an act of violence against a person” 

under section 27-6A-3(h). George K., 233 W. Va. at 709, 760 S.E.2d at 523. In other 

words, the elements of the crime charged did not limit the determination of what constitutes 

an “act of violence.” Id. In this regard, the Court held that “[i]n 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 700, 760 S.E.2d at 515, Syl. 

Pt. 1. 

We then analyzed whether “act of violence” required actual physical harm.

The petitioner in George K., like the petitioner herein, argued that the child victim did not 

suffer physical harm and therefore the crimes at issue did not involve acts of violence. We

7 See Syl. Pt. 4, Mace v. Mylan Pharm., Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011) 

(“‘“The primary object in construing a statute is to ascertain and give effect to the intent of 

the Legislature.” Syllabus point 1, Smith v. State Workmen’s Compensation Commissioner, 

159 W.Va. 108, 219 S.E.2d 361 (1975).’ Syl. Pt. 3, Davis Mem’l Hosp. v. W. Va. State Tax 

Comm’r, 222 W.Va. 677, 671 S.E.2d 682 (2008).”).
11

disagreed that actual physical harm was required; we found that the purpose of the 

competency statute is to protect the public and that the phrase “act of violence” is not 

limited to physical violence. Id. at 711, 760 S.E.2d at 525. Thus, we held that “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 700, 760 

S.E.2d at 515, Syl. Pt. 2. The Court determined that the crimes with which George K. was 

charged – third degree sexual assault and sexual abuse by a custodian – were crimes that 

cause severe emotional and psychological harm to children and were therefore crimes 

involving acts of violence within the meaning of West Virginia Code section 27-6A-3. 233 

W. Va. at 711, 760 S.E.2d at 525, and Syl. Pt. 4.

Following its decision in George K., the Court was presented with a case 

involving felony possession of child pornography, see W. Va. Code § 61-8C-3 (2014), and 

asked to determine whether that crime involved an act of violence to a person under West 

Virginia Code section 27-6A-3(h). See Riggleman, 238 W. Va. at 723, 798 S.E.2d at 849. 

Once again, the petitioner in that case, like the petitioner herein, focused on his lack of 

contact with the victims (the children depicted in pornographic images), arguing that the 

mere viewing of the images was not an “act of violence” required by the statute. We 

disagreed, noting that 

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 
12

that showing. Rather, the relevant inquiry is whether the crime 

charged involves an act of violence against a person.

Riggleman, 238 W. Va. at 725, 798 S.E.2d at 851 (emphasis added). The Court determined 

that the crime charged, possession of child pornography, involved an “act of violence,”

stating that “[i]t is axiomatic that child pornography harms children[.]” Specifically, the 

Court held that

[d]istributing 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. 

238 W. Va. at 723, 798 S.E.2d at 847, Syl. Pt. 5 (emphasis added). 

In view of the foregoing, we decline the petitioner’s invitation to overturn 

George K. and Riggleman. Significantly, we recognize that the petitioner’s arguments in 

support of overturning these decisions are virtually identical to arguments that this Court 

considered and rejected therein. First, the petitioner argues, as did George K., that neither 

the crime of solicitation of a minor, W. Va. Code § 61-3C-14b, nor the use of obscene 

matter with intent to seduce a minor, W. Va. Code § 61-8A-4, includes as an element of 

the crime an “act of violence against a person.” The petitioner contends that this fact alone 

is sufficient to find that neither crime involves an act of violence for purposes of West 

Virginia Code § 27-6A-3. However, in making this argument the petitioner disregards the 

fact that we expressly considered and rejected this very argument in George K. See 233 
13

W. Va. at 709, 760 S.E.2d at 523. Moreover, the petitioner presents no new or novel legal 

basis which would cause us to revisit prior law on this point. 

Next, we disagree with the petitioner’s argument that there is no evidence 

that “suggests” he poses a risk of physical harm, severe emotional harm or severe 

psychological harm to other children. 8 Our focus in George K. was not only the victim in 

that case but also on the future harm that the defendant could inflict on children if he was 

not committed. Id. at 711, 760 S.E.2d at 525. Specifically, we found that “‘[c]hildren are 

the most vulnerable of victims, suffering traumatic and frequently life-long physical and 

emotional damage.’ State v. Goff, 203 W.Va. 516, 522, 509 S.E.2d 557, 563 (1998) 

(internal quotation omitted)[]” from these types of crimes. 233 W. Va. at 711, 760 S.E.2d 

at 525. 

8

Critically, in this type of proceeding there is no burden on the victim to show 

physical harm, severe emotional harm, or severe psychological harm; rather, the focus is 

on whether the petitioner’s “acts . . . indicate the incompetent defendant poses a risk of 

physical harm, severe emotional harm, or severe psychological harm to children.” George 

K., 233 W Va. at 701, 760 S.E.2d at 515, Syl. Pt. 2. In any event, the petitioner’s assertion 

that the victim did not suffer any harm is not supported by evidence. 

Further, the fact that the victim did not open the picture of the penis that the 

petitioner sent to her is of no consequence. Again, the court’s examination is focused on 

the petitioner’s act of sending the picture and whether that act demonstrates that the 

petitioner “poses a risk of physical harm, severe emotional harm, or severe psychological 

harm to children.” Id.
14

In Riggleman, the Court then applied the reasoning of George K. to the 

offense of possession of child pornography, a crime in which the defendant had no physical 

contact with the victims. 238 W. Va. at 722, 798 S.E.2d at 848. Nevertheless, we found 

[i]t 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 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.

238 W. Va. at 728, 798 S.E.2d at 854. Thus, we had no problem finding that 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).” 238 W. Va. 728, 798 S.E.2d at 854. 

In the instant case, the text messages and nude photograph sent to the victim 

were disturbing in that they clearly expressed the petitioner’s desire to engage in sexual 

relations with a minor and clearly solicited the minor to engage in such conduct. Equally 

distressing was the petitioner’s pursuit of the victim despite the fact that she was his halfsister.9

9

Included in the appendix record are the petitioner’s Dangerousness Risk 

Assessment that was performed April 23, 2021, and a Final Commitment Hearing Order 

(“Commitment Order”) entered on April 25, 2022, both of which belie the petitioner’s 

argument that he poses no risk of physical harm, severe emotional harm or severe 

psychological harm to other children. Specifically, in the risk assessment Dr. Nicholas 
15

The petitioner was charged with two counts of soliciting a minor via a 

computer, West Virginia Code section 61-3C-14b, which provides:

Any person over the age of eighteen, who knowingly 

uses a computer to solicit, entice, seduce or lure, or attempt to 

solicit, entice, seduce or lure, a minor known or believed to be 

at least four years younger than the person using the computer 

or a person he or she believes to be such a minor, in order to 

engage in any illegal act proscribed by the provisions of article 

eight, eight-b, eight-c or eight-d of this chapter, or any felony 

offense under section four hundred one, article four, chapter 

sixty-a of this code, is guilty of a felony and, upon conviction 

thereof, shall be fined not more than $5,000 or imprisoned in a 

state correctional facility not less than two nor more than ten 

years, or both.

Id. The petitioner was also charged with use of obscene matter with intent to seduce a 

minor, W. Va. Code § 61-8A-4, which provides: 

Any adult, having knowledge of the character of the 

matter, who knows or believes that a person is a minor at least 

four years younger than the adult, and distributes, offers to 

distribute or displays by any means any obscene matter to the 

person who is known or believed to be a minor at least four 

years younger than the adult, and such distribution, offer to 

distribute, or display is undertaken with the intent or for the 

purpose of facilitating the sexual seduction or abuse of the 

Jasinski, a psychologist, indicates that the petitioner “has both static (historical 

unchanging) and dynamic (changeable) risk factors for future violence and/or sexual 

misconduct.” It is also noted that since his hospitalization, the petitioner has demonstrated 

“problematic interpersonal behavior” on several occasions. When confronted about his 

behavior, the petitioner became “loud and angry[,]” denying any action on his part. Dr. 

Jasinski further notes that the petitioner’s behavior “indicat[es] an ongoing difficulty 

maintain[ing] safe and appropriate boundaries and behavior with others . . . . He clearly 

continues to manifest problematic behavior that makes him inappropriate for release into 

the community.” The recommendation was for the petitioner’s placement in a facility with 

twenty-four-hour supervision and on-site mental health treatment services. Likewise, in 

the more recent Commitment Order, the circuit court noted the parties’ agreement that the 

petitioner “remains a substantial danger to himself and others. . . outside the hospital 

setting[.]” (Emphasis added). 
16

minor, is guilty of a felony and, upon conviction thereof, shall 

be fined not more than $25,000, or imprisoned in a state 

correctional facility for not more than five years, or both. For 

a second and each subsequent commission of such offense, 

such person is guilty of a felony and, upon conviction, shall be 

fined not more than $50,000 or imprisoned in a state 

correctional facility for not more than ten years, or both.

Id. In light of our analysis in George K. and Riggleman, it is beyond argument that both 

of the crimes charged herein involve the same type of acts involved in our precedents –

acts that pose a risk of physical harm, severe emotional harm, or severe psychological harm 

to children. See George K., 233 W. Va. at 700, 760 S.E.2d at 515, Syl. Pt. 2; accord

Riggleman, 238 W. Va. at 721, 798 S.E.2d at 722, Syl. Pt. 4. We therefore hold that 

soliciting a minor via a computer, West Virginia Code § 61-3C-14b (2020), and use of 

obscene matter with intent to seduce a minor, W. Va. Code § 61-8A-4 (2020), are crimes 

that involve “an act of violence against a person” within the meaning of West Virginia 

Code section 27-6A-3 (2007 & 2021), because these crimes pose a risk of physical harm, 

severe emotional harm, or severe psychological harm to children.

B. Calculation of Maximum Sentence for Purposes of Criminal Competency

The petitioner argues that his maximum sentence should have been based 

solely on his most serious offense and that the circuit court erred in finding it had 

jurisdiction over him for twenty-five years. In our resolution of this issue, we are guided 

by two separate lines of analysis. First, West Virginia Code § 27-6A-3(h) (2007),10 which 

10The 2021 version of the statute now reads:
17

was in effect at the time of the petitioner’s competency determination, provided that where 

a defendant was found not competent, the circuit court was to 

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.

If, at the end of the maximum period for inpatient competency 

restoration treatment as provided in this subsection, the court 

finds that the defendant has not attained competency and is not 

substantially likely to attain competency in the foreseeable 

future, the defendant shall be released to the least restrictive 

setting upon any conditions the court determines to be 

appropriate and the charges against him or her held in abeyance 

for the maximum sentence he or she could have received for 

the offense and the defendant released unless civil commitment 

proceedings have been initiated pursuant to § 27-5-1 et seq. of 

this code. Notwithstanding anything in this article to the 

contrary, the court, in its discretion, may continue its oversight 

of the individual and the court’s jurisdiction over the 

individual: Provided, That notwithstanding any provision of 

this article to the contrary, an individual may not be released 

as provided in this subsection until the court reviews and 

approves a recent dangerousness risk assessment of the 

individual and the chief medical officer’s recommended 

release plan for the individual based on the needs of the 

individual and the public. The court shall order the discharge 

of the individual if it finds by a preponderance of the evidence 

that the individual has recovered from his or her mental illness 

and that he or she no longer creates a substantial risk of bodily 

injury to another person.

W. Va. Code § 27-6A-3(g)(2) (2021). 
18

Id. (emphasis added). In this regard, the maximum sentence the petitioner could have 

received for two counts of soliciting via a computer was consecutive ten-year terms of 

imprisonment,11 and the maximum sentence the petitioner could have received for one 

count of use of obscene matter with intent to seduce a minor was a five-year term of 

imprisonment, also consecutive;12 thus, the maximum sentence the petitioner could have 

received upon conviction of all counts was twenty-five years. Accordingly, the circuit 

court did not err in its calculation of the maximum sentence for purposes of determining 

the potential length of its jurisdiction over the petitioner. See W. Va. Code § 27-6A-3(h).13 

Second, as previously mentioned, West Virginia Code section 27-6A-3 was 

amended in 2021, and our resolution of this issue is also guided by section 27-6A-3(l) in 

the amended statute:

11 See W. Va. Code § 61-3C-14b (providing for a term of incarceration of “not less 

than two nor more than ten years”). 

12 See id. § 61-8A-4 (providing for a term of imprisonment “in a state correctional 

facility for not more than five years” for the first conviction). 

13 We reject the petitioner’s attempt to advance a thinly veiled double jeopardy 

argument, in reliance on law from another jurisdiction, by contending that he could not 

have legally received consecutive sentences for two alleged violations of West Virginia 

Code section 61-3C-14b(a). Succinctly stated, the petitioner has neither been convicted of 

nor sentenced on any of the crimes charged; therefore, double jeopardy principles, which 

apply only to sentences which impose multiple punishments for the same crime, are 

inapplicable to this case. See generally Syl. Pt. 3, State v. Sears, 196 W. Va. 71, 468 S.E.2d 

324 (1996) (“The purpose of the Double Jeopardy Clause is to ensure that sentencing courts 

do not exceed, by the device of multiple punishments, the limits prescribed by the 

legislative branch of government, in which lies the substantive power to define crimes and 

prescribe punishments.”).
19

(l) Notwithstanding anything in this article to the contrary, for 

each individual who is committed to a state hospital, or 

committed to a state hospital and diverted to a licensed hospital 

prior to the effective date of the amendments to this section 

enacted during the regular session of the Legislature, 2021, 

who has received or will receive the maximum amount of 

competency restoration treatment authorized under this section 

prior to January 1, 2022, and who the medical director of the 

hospital and the court have determined is not restorable, the 

medical director shall inform the court and prosecutor of record 

for each such individual as soon as practicable but no later than 

March 31, 2022. The medical director shall immediately 

provide a recommendation to the court and prosecutor for the 

clinical disposition, placement, or treatment of each individual. 

The state hospital or prosecutor shall thereafter file a civil 

commitment proceeding, if warranted, as provided under § 27-

5-1 et seq. of this code for each individual or make other 

appropriate recommendations to the court of record. The court 

shall hold any hearing for each individual as soon as 

practicable, but no later than June 30, 2022.

W. Va. Code § 27-6A-3(l). In this case, the appendix record was supplemented on motion 

of the State with information showing that the petitioner has been provided a civil 

commitment hearing as set forth in section 27-6A-3(l) and the circuit court has determined 

that he has still not regained competency and will not do so in the foreseeable future. 

Additionally, the court found that the petitioner requires twenty-four-hour supervision and 

care. He has been “referred to less restrictive facilities, including those that treat 

individuals with permanent brain injury, such as himself. He has been denied admission 

to each of the facilities with responses such as ‘no beds & not a good fit.’” Most 

importantly, the circuit court found that the 

parties are not in dispute that Defendant remains a substantial 

danger to himself and others. The Court, in accordance with 

W. Va. Code § 27-6A-3(l), further FINDS that the Defendant 
20

remains a foreseeable danger to self and others outside the 

hospital setting and that there is no less restrictive placement 

that is appropriate and available that assures that the 

Defendant will remain safe to himself and others. 

As a result of this civil commitment hearing, the petitioner has been “finally civilly 

committed to Sharpe Hospital or a licensed diversion facility in accordance with W. Va. 

Code § 27-5-4(l)”14 and the circuit court “shall continue its oversight of the Defendant for 

the period of the Court’s Jurisdiction as authorized by W. Va. Code § 27-6A-3(g)(2).” 15 

In this regard, 

the court, in its discretion, may continue its oversight of the 

individual and the court’s jurisdiction over the individual: 

Provided, That notwithstanding any provision of this article to 

the contrary, an individual may not be released as provided in 

this subsection until the court reviews and approves a recent 

dangerousness risk assessment of the individual and the chief 

medical officer’s recommended release plan for the individual 

based on the needs of the individual and the public.

See id. 

Consequently, even though we find no error in the circuit’s original 

determination of the maximum jurisdictional limit it could maintain over the petitioner, we 

recognize that the petitioner’s commitment has now advanced to a civil commitment. 

Accordingly, the period of time during which the circuit court was authorized to maintain 

14 See W. Va. Code § 27-5-4(l)(4) (2020) (pertaining to orders issued pursuant to 

final commitment hearing and further providing that “an individual committed pursuant to 

§ 27-6A-3 of this code may be committed for the period he or she is determined by the 

court to remain an imminent danger to self or others.”). 

15 See supra n.10. 
21

jurisdiction under the former version of the statute – the maximum sentence he or she could 

have received if convicted – is no longer controlling.

By our holding today, we reaffirm that the provisions of West Virginia Code

section 27-6A-3 were not designed to impose punishment on a defendant, but rather to 

monitor and treat a defendant’s mental health concerns. We emphasized this in Riggleman: 

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 § 27-6A3(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.
22

Riggleman, 238 W. Va. at 729, 798 S.E.2d at 855. Accordingly, the circuit court did not 

err in regard to the petitioner’s competency determination pursuant to West Virginia Code 

section 27-6A-3. 

IV. Conclusion

For the foregoing reasons, the circuit court’s March 8, 2021, order is hereby 

affirmed. 

Affirmed.