SCALES, J.

Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before FERNANDEZ, LOGUE and SCALES, JJ.

SCALES, J.

Jared Stephens, the defendant below, appeals his convictions and sentences for thirty counts of possession of child pornography. Stephens argues that: (i) the trial court erred in denying, without first conducting a Richardson hearing, defense counsel's request to recall the State's forensic computer examiner during the defense's case-in-chief; (ii) the trial court erred in failing to order, sua sponte , that Stephens's competency be reevaluated prior to sentencing him; and (iii) Stephens's one hundred fifty-year aggregate sentence violates the Eighth Amendment to the United States Constitution's prohibition against cruel and unusual punishment. Finding no error, we affirm as to each issue.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

On September 26, 2016, Jared Stephens entered a Best Buy store in Doral, Florida and tried to steal a laptop. When store security detained him, Stephens took out his own laptop from a bag that he was carrying and showed the store employees a child pornography video. Stephens told the store employees, "Look what they put on my computer ... look [what] they've done to me."

On October 26, 2016, the State charged Stephens by information with one count of possession of child pornography, strongarm robbery and disorderly conduct. At Stephens's arraignment, the State alerted the trial court that Stephens appeared to have mental health issues; whereupon, the court ordered that Stephens's competency be evaluated. The doctors who evaluated Stephens determined that Stephens suffered from schizophrenia and was incompetent. On December 8, 2016, the trial court entered separate orders adjudicating Stephens incompetent to stand trial and committing Stephens to a hospital for treatment.

On March 28, 2017, the trial court ordered that Stephens's competency be reevaluated. This time, the doctors who evaluated Stephens determined that Stephens's competency had been restored. On April 18, 2017, the trial court found Stephens competent to stand trial.

When Stephens declined the State's plea offer of probation, an offer conditioned upon Stephens's completion of a mentally deviant sexual offender evaluation, the State amended the information to charge Stephens with twenty-nine additional counts (for a total of thirty counts) of possession of child pornography.

The trial court conducted a four-day jury trial in October 2017.

A. The trial testimony of the State's forensic computer examiner and Stephens's conviction

At trial, the State presented the expert testimony of Albert Grossman, a forensic computer examiner for the Florida Department of Law Enforcement. Grossman testified that he made a digital copy of the hard drive on Stephens's laptop using a computer program called FTK Imager and then analyzed the digital copy's content using a separate computer program called FTK. Grossman testified that Stephens's laptop had no corrupt files, viruses, malware or ransomware on it.

In his analysis, Grossman discovered that, on September 17, 18, 19, 20, 21, and 22, 2016, numerous internet searches for child pornography were performed on Stephens's laptop using the Google search engine, the Bing search engine and the Google Chrome search bar. Specifically, the searches conducted used common acronyms and known providers of child pornography.

Grossman testified that on September 17, 18, and 21, 2016, thirty "torrent" files containing illicit material – i.e., still pictures, video and catalogs depicting child pornography – were downloaded from the internet onto Stephens's laptop and saved to the laptop's download folder. A torrent file sharing program was then used to open/extract the torrent files, and a "link file" was created to show that another program on the computer (like Adobe or Windows Media Player) was used to view each illicit file. Stephens's theory of defense was that the child pornography on his laptop was the result of malware. This malware, according to the defense theory, hijacked Stephens's laptop and, unbeknownst to Stephens, downloaded the illicit torrent files and opened them by way of a torrent file sharing program. The defense did not retain an expert to support this defense theory. Instead, defense counsel relied solely upon his cross-examination of the State's forensic computer examiner, Albert Grossman.

Before Grossman testified for the State, defense counsel informed the trial court and the State that defense counsel intended to cross-examine Grossman with the use of a demonstrative aid prepared by defense counsel. The trial transcript reflects that, after Grossman's direct testimony concluded, the demonstrative aid contained errors that defense counsel needed to correct. The trial court then handled issues with respect to jury instructions and the verdict form.

When the trial resumed, defense counsel cross-examined Grossman thoroughly, but at no point sought to use the subject demonstrative aid when questioning Grossman about the illicit files on Stephens's laptop. Grossman stood by his testimony that Stephens's laptop did not have any malware on it.

After the State conducted a limited re-direct examination of Grossman, the trial court released Grossman and the State rested its case-in-chief. The jurors then exited the courtroom for a break, whereupon defense counsel informed the court that he wanted to recall Grossman to the stand during the defense's case-in-chief because defense counsel had "forgot[ten] to cover something." Defense counsel did not, however, proffer the testimony he expected to elicit from Grossman. The trial court denied the request to recall Grossman to the stand, and the defense rested.

The jury convicted Stephens on all thirty counts of possession of child pornography, on petit theft (a lesser included offense of strongarm robbery) and disorderly conduct.

B. The motion for a downward departure sentence and Stephens's sentence

Two mitigating circumstances for seeking a downward departure sentence are that: (i) "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse"; and (ii) "[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense." § 921.0026(2)(j)-(k), Fla. Stat. (2017) (emphasis added). On January 9, 2018, defense counsel moved for a downward departure sentence on both grounds, arguing in relevant part:

9. Throughout the process, both pre-trial and post-trial, Mr. Stephens has refused to engage in any plea negotiations. He refused to engage or assist in any efforts to procure mitigation. He refused to sign releases for his medical and educational records, [sic] he refused to answer any questions about his family, childhood, or his general personal history from his attorneys, defense mitigation specialists, and the pre-sentencing investigator. He refused to see any doctors, psychologists, psychiatrists or other professionals to assist is [sic] obtaining a mental health diagnosis to be used for mitigation or placement in a treatment program.

....

... Mr. Stephens’ bizarre behavior, refusal to answer basic questions, refusal

to participate in mitigation and general aloofness to the dire facts and circumstances surrounding his case is evidence of his lack of emotional maturity and lack of ordinary intelligence.

At the January 18, 2018 sentencing hearing, defense counsel argued the following with respect to the motion for a downward departure sentence:

Mr. Stephens presents very well; highly intelligent, alert. He is not a stupid person. But, if you read between the lines, I think, again, you'll find an individual who needs help, Your Honor.

....

... I believe that there is excellent potential for Mr. Stephens to be rehabilitated and I think we saw that happen in front of our eyes when Mr. Stephens came into custody.

Frankly, I wasn't his attorney at the time; but, from what I gather it seemed like things were a mess and I believe that the State is the one who, actually, raised competency out of concern for Mr. Stephens. And, after he received the restoration treatment he was great.

What you've seen is an individual who has the capacity and the ability, if given the opportunity to, in fact, change and become something better and I hope that for the purpose of this sentence ... is to help the individual and not punish him.

Defense counsel, however, never questioned Stephens's competency. The trial court denied Stephens's motion for a downward departure and proceeded to sentence Stephens.

According to the sentencing scoresheet, Stephens's permissible sentence ranged between one hundred eighteen months to one hundred fifty years in prison. With respect to Stephens's convictions for thirty counts of possession of child pornography, the State requested that Stephens be sentenced to twenty years in prison, followed by two years of community control, followed by eight years of reporting probation, with credit for time served. Defense counsel requested that Stephens receive a sentence at the bottom of the sentencing guidelines. The trial court sentenced Stephens to five years in prison on each of the thirty counts of possession of child pornography, to run consecutively, for a total of one hundred fifty years in prison. Stephens timely appealed his convictions and sentences.

C. Stephens's motion to correct a sentencing error

While this appeal was pending, Stephens filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct a sentencing error in the lower court, arguing that his sentence violates the Eighth Amendment to the United States Constitution's prohibition against cruel and unusual punishment. On April 29, April 30 and May 1, 2019, the trial court conducted an evidentiary hearing on Stephen's rule 3.800(b)(2) motion. At the conclusion of the hearing, the trial court denied the motion, finding, in relevant part:

This Court has not heard or read anything to make it reach the conclusion that defendant's sentence is unduly harsh, cruel or is unusual punishment.

Although defendant and his attorneys may find the sentencing range to be

overly broad, it is completely within the discretion of the trial court and 100 percent legal.

The sentencing scheme has been authorized by the Florida legislation – legislature, the branch of government that is tasked with defining criminal offenses and prescribing the sentences when one is found guilty.

....

His sentence is legal[,] and the motion is denied.

II. ANALYSIS

In this appeal, Stephens raises three distinct issues. First, Stephens claims that the trial court should have conducted a Richardson hearing when defense counsel sought to recall the State's forensic computer examiner during the defense's case-in-chief. Second, Stephens claims the trial court should have, on its own motion, ordered that Stephens's competency be reevaluated prior to sentencing him. Third, Stephens claims that his aggregate one hundred fifty-year sentence is cruel and unusual under the Eighth Amendment to the federal Constitution because the sentence is grossly disproportionate to the crime of possession of child pornography. We address each issue separately.

A. No Richardson hearing was required when defense counsel sought to recall the State's forensic computer examiner during the defense's case-in-chief

Stephens argues that we should view defense counsel's request to recall the State's forensic computer examiner, Albert Grossman, during the defense's case-in-chief through the lens of a defense discovery violation for failure to list Grossman as a defense witness. Hence, according to Stephens, the trial court should have conducted a Richardson hearing below when considering defense counsel's request. Under the particular facts and circumstances of this case, we disagree.

This is not a case where the defense committed a discovery violation by calling an unlisted defense witness, thereby implicating Richardson. Indeed, the record is clear that defense counsel did not seek to recall Grossman as a defense witness for the purpose of introducing any new evidence at trial. Defense counsel's initial explanation to the trial court was that he "forgot to cover something." As later elucidated in Stephen's motion for new trial, defense counsel sought to reopen Grossman's cross-examination for the limited purpose of asking Grossman to verify that defense counsel's demonstrative aid was accurate so that defense counsel could refer to it during closing argument. Defense counsel further admitted at the hearing on Stephens's motion for new trial both that defense counsel's failure to ask Grossman about the demonstrative aid on cross-examination was "straight up human error" and that "asking for re-cross is, exactly what our argument is."

To preserve the issue for appellate review, however, defense counsel was required to proffer to the trial court the testimony that counsel expected to elicit from Grossman on further cross-examination. Finney v. State, 660 So. 2d 674, 684 (Fla. 1995). Because defense counsel merely informed the trial court that he "forgot to cover something," "it is impossible for the appellate court to determine whether the trial court's ruling was erroneous and if erroneous what effect the error may have had on the result." Id; see also Brazell v. State, 570 So. 2d 919, 921 (Fla. 1990) (recognizing the "longstanding rule that requires the party against whom a ruling of exclusion has been made to make a proffer of the proposed testimony so that the trial and the appellate courts may be able to evaluate its weight, relevancy, and competency in determining the effect of the exclusion"). We, therefore, are compelled to affirm on this issue.

B. The trial court did not abuse its discretion by not ordering that Stephens's competency be reevaluated prior to sentencing him

"If, at any material stage of a criminal proceeding, the court on its own motion ... has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition ...." Fla. R. Crim. P. 3.210(b). Here, Stephens argues that his prior history of mental illness, when combined with defense counsel's representations about Stephens's behavior in the post-trial motion for a downward departure sentence, provided the trial court with reasonable grounds to believe that Stephens was not mentally competent to proceed at sentencing. On this record, we disagree.

First, defense counsel's post-trial characterization of Stephens's "bizarre" behavior exhibiting a "lack of emotional maturity and lack of ordinary intelligence" did not put Stephens's competency in question. See Thompson v. State, 88 So. 3d 312, 319 (Fla. 4th DCA 2012) ("[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial." (quoting Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) )). Second, Stephens's lack of cooperation with defense counsel, without more, did not provide an adequate basis for ordering a competency hearing. See Pickles v. State, 976 So. 2d 690, 693-94 (Fla. 4th DCA 2008) (concluding the defendant's disruptive behavior – that included frequent outbursts in the courtroom and a refusal to cooperate with defense counsel during trial – did not warrant a competency hearing). Third, the trial court's independent obligation to order a competency hearing does not arise "if there is nothing to alert the court that the defendant may lack competency." Laster, 212 So. 3d at 394 (quoting Blackmon v. State, 32 So. 3d 148, 150 (Fla. 4th DCA 2010) ). In this case, after Stephens's competency was restored, the record evidences nothing occurring in the presence of the trial court that would suggest Stephens was not competent to proceed. See Cushnie v. State, 993 So. 2d 590, 592-93 (Fla. 4th DCA 2008) (holding the trial court did not err in failing, sua sponte , to order a competency hearing where the defendant's behavior at trial did not alert the court that the defendant was not competent).

For these reasons, we conclude the trial court did not abuse its discretion by not ordering, sua sponte , that Stephens's competency be reevaluated prior to sentencing him on the underlying convictions.

C. Stephens's one hundred fifty-year aggregate sentence is not grossly disproportionate to the crime of possession of child pornography

While Stephens concedes that a five-year sentence for a single count of possession of child pornography is "clearly constitutional," Stephens argues that his one hundred fifty-year aggregate sentence for thirty counts of possession of child pornography is unconstitutional because the sentence imposed is grossly disproportionate to the crime. Although Stephens's sentence is very harsh, well established Eighth Amendment jurisprudence compels us to affirm the sentence.

1. The "objective criteria" guiding the Court's proportionality analysis

The United States Supreme Court has recognized that, under the Eighth Amendment to the federal Constitution, a lengthy prison sentence can be cruel and unusual if the sentence is "grossly disproportionate" to the crime. See Solem v. Helm, 463 U.S. 277, 288-90, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the Court's proportionality analysis was "guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. To date, Solem is "[t]he first and only case in which the Supreme Court has invalidated a prison sentence because of its length." Adaway v. State, 902 So. 2d 746, 749 (Fla. 2005).

Following Solem, the United States Supreme Court issued a series of plurality decisions that led to significant confusion over how to apply the objective criteria it had set forth as guidance when conducting a proportionality analysis. In Adaway, the Florida Supreme Court analyzed Solem and its progeny, recognizing the uncertainty as to whether the second and third criteria set forth above – i.e., the comparative analyses of sentences imposed on others – must be conducted if, under the first criteria, it is determined that the length of the sentence is not grossly disproportionate to the crime. The Florida Supreme Court has determined that, in such a circumstance, it is not necessary to conduct the comparative analyses discussed in Solem's second and third criteria:

We read the decisions in Solem, Harmelin [v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ], and Ewing [v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) ] as requiring, for a prison sentence to constitute cruel and unusual punishment solely because of its length, that at a minimum the sentence be grossly disproportionate to the crime. The Court itself has announced that it is "clearly established" that "[a] gross disproportionality principle is applicable to sentences for terms of years." Lockyer [v. Andrade], 538 U.S. [63] 72, 123 S.Ct. 1166, [155 L.Ed.2d 144 (2003) ]. In this case, we need not speculate about other requirements because Adaway has failed to demonstrate gross disproportionality.

Adaway, 902 So. 2d at 750.

2. Application of Solem ’s first objective criteria – the gravity of the offense and harshness of the penalty – is dispositive in this case

Hence, if we determine that the gravity of Stephens's offenses is congruent with Stephens's sentence, then we may conclude that his sentence passes Eighth Amendment muster without reaching Solem’s other criteria. Adaway, 902 So. 2d at 750. In conducting this threshold inquiry, the Adaway court explained that "the length of the sentence actually imposed is generally said to be a matter of legislative prerogative," id. (quoting Hall v. State, 823 So. 2d 757, 760 (Fla. 2002) ), and that "[a]lthough the penalty is harsh, we accept the Legislature's judgment about the gravity of the crime." Id.

The Florida Legislature has expressly determined that the unlawful possession of "each ... photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or presentation [of sexual conduct by a child] is a separate offense ," § 827.071(5)(a), Fla. Stat. (2016) (emphasis added), knowing full well that, if charged and convicted of separate offenses, an offender will receive up to five years in prison for each image possessed, and that each sentence may run consecutively. See § 775.082(3)(e), Fla. Stat. (2016). Although one might reasonably conclude that Stephens's thirty, consecutive five-year sentences are quite harsh, we refrain from substituting our judgment for that of the Legislature as to the gravity of the offense. Adaway, 902 So. 2d at 750.

Given the compelling State interest both in eliminating the possession of child pornography and protecting the victims of child pornography, see footnote 10, supra , as well as the Legislature's prerogative in setting the length of the sentence for possession of child pornography, we conclude that Stephens has failed to establish that his sentence, while admittedly quite harsh, is grossly disproportionate to the offense. We, therefore, need not, and do not, engage in the comparative analyses discussed in Solem as our determination on the first criteria is dispositive of this issue. Adaway, 902 So. 2d at 750.

3. Our conclusion is consistent with persuasive decisions from our sister courts

The Florida Supreme Court has noted how rare it is for a court to vacate an otherwise lawful, albeit long, prison sentence on Eighth Amendment grounds: "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Adaway, 902 So. 2d at 748 (quoting Hall, 823 So. 2d at 760 ). Our conclusion is buttressed by the decisions of our sister courts, which have addressed the constitutional question in some fashion and opined that a lengthy aggregate sentence for possession of child pornography is not cruel and usual.

In Rogers v. State, 96 So. 3d 922, 923 (Fla. 5th DCA 2012), Rogers was convicted of one hundred twenty-five counts of possession of child pornography, receiving "a composite sentence of seventy-five years in prison." Noting that all one hundred twenty-five images of child pornography were contained on a single CD-ROM and that Rogers had no prior felony convictions, the Fifth District commented that "one might well conclude that the sentence was unduly harsh." Id. Nevertheless, the appellate court concluded that "we cannot accept Rogers’ argument that his sentence violates the cruel and unusual punishment clauses of the United States and Florida constitutions." Id. (footnotes omitted).

In Berben v. State, 268 So. 3d 235, 236 (Fla. 5th DCA 2019), Berben was convicted of twenty counts of possession of child pornography and sentenced to five years in prison on each count, to run consecutively. Citing to Rogers, the Fifth District rejected Berben's sole claim that "the disproportionality of his 100-year sentence ... violated constitutional prohibitions against cruel and unusual punishment." Id.

In Walsh v. State, 198 So. 3d 783, 784-85 (Fla. 2d DCA 2016), Walsh was convicted of seventeen counts of possession of child pornography – based on Walsh's possession of one hundred seventy illicit images that the State sorted into groups of ten in order to reclassify the offenses as second-degree felonies – receiving an aggregate sentence of sixty-three and a half years in prison. In what appears to be dicta because Walsh did not argue that his sentences were cruel and unusual, the Second District nevertheless cited to Rogers and commented: "We cannot say that a 63.5-year sentence for a cache of 170 pornographic images from Mr. Walsh's computers is unduly harsh. There can be no question that these crimes traumatize the child victims, and the legislature has expressed its condemnation of such conduct." Id. at 788.

III. CONCLUSION

Stephens has not demonstrated any reversible error in this appeal that would entitle him either to a new trial or to resentencing.

The trial court was not required to conduct a Richardson hearing when the defense counsel sought to recall the State's forensic computer examiner during the defense's case-in-chief. The post-trial proceedings confirm that defense counsel sought to reopen cross-examination of the State's witness for the limited purpose of using a demonstrative aid during closing argument; and, the trial court's denial of defense counsel's request was not preserved for appellate review because defense counsel failed, at trial, to proffer to the trial court the testimony that counsel expected to elicit from the State's witness on further cross-examination.

Further, the trial court did not abuse its discretion by not ordering that Stephens's competency be reevaluated prior to sentencing him on the underlying convictions. After Stephens's competency was restored, defense counsel never raised Stephens's competency to the trial court, and nothing occurred in the presence of the trial court that would suggest Stephens was not competent to proceed at any stage of the proceedings.

Finally, Stephens's aggregate one hundred fifty-year sentence is not cruel and unusual under the Eighth Amendment because the sentence is not grossly disproportionate to the offense of possession of child pornography. The Florida Legislature has the prerogative to set the length of prison sentences for crimes, and the State has a compelling interest in eliminating the possession of child pornography and protecting the victims of child pornography.

Accordingly, we affirm Stephens's convictions and sentences.

Affirmed.