State v. Connor, No. 20-0234

CourtSupreme Court of West Virginia
Writing for the CourtHUTCHISON, Justice
Citation855 S.E.2d 902,244 W.Va. 594
Parties STATE of West Virginia, Respondent, v. Timothy Michael CONNOR, II, Petitioner.
Decision Date15 March 2021
Docket NumberNo. 20-0234

244 W.Va. 594
855 S.E.2d 902

STATE of West Virginia, Respondent,
v.
Timothy Michael CONNOR, II, Petitioner.

No. 20-0234

Supreme Court of Appeals of West Virginia.

Submitted: February 9, 2021
Filed: March 15, 2021


Jared T. Moore, Esq., The Moore Law Firm, PLLC, Morgantown, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., West Virginia Attorney General, Gordon L. Mowen, II, Esq., Assistant Attorney General, Counsel for Respondent.

HUTCHISON, Justice:

855 S.E.2d 905

Following the death of his friend, Shane Cebulak, from a heroin overdose, Petitioner Timothy Michael Connor, II, was charged with the felony offense of failure to render aid, in violation of West Virginia Code § 60A-4-416(b) (2017). This Court is now presented with the following certified questions from the Circuit Court of Monongalia County, which arose as a result of petitioner's motion to dismiss the indictment against him on the ground that the statute is unconstitutionally vague and, therefore, void:

1. Whether the following phrase in West Virginia Code § 60A-4-416(b) is unconstitutionally vague: "Any person who, while engaged in the illegal use of a controlled substance with another?"

Circuit Court's Answer: Yes.

2. Whether the undefined phrase "seek medical assistance" in the context of West Virginia Code § 60A-4-416(b) provides an adequate standard for adjudication?

Circuit Court's Answer: No.

For the reasons discussed below, we disagree with the answers of the circuit court and conclude that the statute is constitutional.

I. Factual and Procedural Background

On March 28, 2019, Mr. Cebulak picked up petitioner and drove to an apartment complex in Morgantown. Mr. Cebulak went inside and purchased heroin while petitioner remained in the vehicle. After purchasing the heroin, Mr. Cebulak returned to the vehicle and drove them to the parking lot of another apartment complex. Mr. Cebulak then smoked the heroin. Petitioner denies partaking in the use of illegal substances.

According to petitioner, after Mr. Cebulak smoked the heroin, he began exhibiting signs that he was suffering an overdose. Petitioner proceeded to call an acquaintance, Joseph Choma, whom petitioner believed to be a nurse.1 Petitioner asked Mr. Choma for help because he believed that Mr. Cebulak was experiencing an overdose. Mr. Choma informed petitioner that he was unable to help because he (Mr. Choma) was intoxicated and advised petitioner that he should drive Mr. Cebulak to a hospital. Petitioner informed Mr. Choma that he was on parole and would not call 9-1-1.2 After speaking with petitioner,

855 S.E.2d 906

but before petitioner arrived with Mr. Cebulak, Mr. Choma called his girlfriend who, in turn, called 9-1-1 to report the overdose. Petitioner drove Mr. Cebulak to Mr. Choma's residence3 and parked the vehicle in an alley nearby. Mr. Cebulak was still breathing when petitioner left him in the vehicle and went inside Mr. Choma's residence.4 The 9-1-1 dispatcher contacted Mr. Choma, who reported that a person was experiencing an overdose in a vehicle that was parked in an alley behind Mr. Choma's residence, that the person was slumped over the passenger seat, that he was breathing but appeared to be dying, and that the breathing sounded like snoring.5 When Mr. Choma went outside to see if the vehicle was still there, it was gone. Emergency personnel arrived soon thereafter and, likewise, were unable to locate Mr. Cebulak or the vehicle.

Approximately two hours later, while out walking his dog, Mr. Choma discovered Mr. Cebulak in the vehicle parked in the alley. He called 9-1-1, informing the dispatcher that he did not believe Mr. Cebulak was breathing. Emergency personnel arrived and confirmed that Mr. Cebulak was deceased.6

On August 20, 2019, while petitioner was meeting with his parole officer, officers with the Morgantown Police Department questioned him about the events that transpired on March 28, 2019. Petitioner gave a statement and was thereafter arrested and charged with failing to render aid to Mr. Cebulak, a felony, in violation of West Virginia Code § 60A-4-416(b). The statute provides:

Any person who, while engaged in the illegal use of a controlled substance with another, who knowingly fails to seek medical assistance for such other person when the other person suffers an overdose of the controlled substance or suffers a significant adverse physical reaction to the controlled substance and the overdose or adverse physical reaction proximately causes the death of the other person, is guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than five years.

W. Va. Code § 60A-4-416(b). Petitioner was subsequently indicted by a Monongalia County Grand Jury on that charge.

On February 10, 2020, petitioner filed a motion to dismiss the indictment on the ground that West Virginia Code § 60A-4-416(b) is unconstitutionally vague because it fails to clearly define what type of conduct is prohibited and, further, requires application of a purely subjective standard thereby inviting arbitrary enforcement. Petitioner argued that the statute should be declared void because (1) the phrase "while engaged in the illegal use of a controlled substance with another" is subject to multiple interpretations, and (2) the statute's failure to define "seek medical assistance" is purely subjective.

A hearing on petitioner's motion to dismiss was conducted on February 21, 2020. Upon conclusion of the hearing, the circuit court held the motion in abeyance and, by Order of Certification entered on March 13, 2020, determined

855 S.E.2d 907

that certain aspects of West Virginia Code § 60A-4-416(b) warranted the certification of two questions to this Court:

1. Whether the following phrase in West Virginia Code § 60A-4-416(b) is unconstitutionally vague: "Any person who, while engaged in the illegal use of a controlled substance with another?"

2. Whether the undefined phrase "seek medical assistance" in the context of West Virginia Code § 60A-4-416(b) provides an adequate standard for adjudication?

As to the first certified question, the court found that the statute is ambiguous regarding what circumstances must exist to constitute "using a controlled substance" within the meaning of the statute: "Specifically, does the statute apply to people personally using a controlled substance, or does it apply to those who are merely physically present when another is using a controlled substance?"7 Thus, the court's order observed that "[t]he phrase ‘Any person who, while engaged in the illegal use of a controlled substance with another,’ as delineated in the statute, fails to give notice to a person under specific circumstances of what would make a person subject to punishment under the code section."

As to the second certified question, the circuit court's order stated that the phrase "seek medical assistance" as set forth in the statute is

susceptible to differing subjective interpretations, which precludes the public from knowing what the law requires of citizens of the State of West Virginia in similar circumstances. For example, does "seek medical assistance" mean calling 911, transporting the person in need of assistance to a medical facility, or some other specific behavior?

The circuit court determined that "seek medical assistance" in the context of West Virginia Code § 60A-4-416(b) does not provide an adequate standard for adjudication.

On May 1, 2020, the circuit court entered an agreed order indefinitely continuing the case pending this Court's ruling on the certified questions.

II. Standard of Review

The certified questions before us involve a challenge to the constitutionality of a criminal statute. This Court has established that "[t]he appellate standard of review of questions of law and certified by a circuit court is de novo. " Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc. , 197 W. Va. 172, 475 S.E.2d 172 (1996). Similarly, "[t]he constitutionality of a statute is a question of law which this Court reviews de novo. " Syl. Pt. 1, State v. Rutherford , 223 W. Va. 1, 672 S.E.2d 137 (2008)." Accord , Syl. Pt. 2, State v. James , 227 W. Va. 407, 710 S.E.2d 98 (2011). Still, we evaluate the certified questions with caution, keeping in mind the importance of judicial restraint because a statute is presumed to be constitutional:

"When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. Pt. 3, Willis v. O'Brien , 151 W. Va. 628, 153 S.E.2d 178 (1967).

Syl. Pt. 3, James , 227 W. Va. at 410, 710 S.E.2d at 101. With these standards and considerations in mind, we proceed to answer the certified questions before us.

III. Discussion

In this case, the Court is tasked with determining whether West Virginia Code § 60A-4-416(b) should be declared unconstitutionally vague and, therefore, void. "Claims of unconstitutional vagueness in criminal statutes are grounded in the...

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1 practice notes
  • Smith v. Van Meter, No. 19-0679
    • United States
    • Supreme Court of West Virginia
    • March 15, 2021
    ...court's order dismissing Mr. Smith's complaint and remand for proceedings consistent with this opinion. And, because we find that under 855 S.E.2d 902 West Virginia Code § 59-1-11(b)(2) Mr. Smith should have been permitted to photograph the public documents he reviewed in the Grant County C......
1 cases
  • Smith v. Van Meter, No. 19-0679
    • United States
    • Supreme Court of West Virginia
    • March 15, 2021
    ...court's order dismissing Mr. Smith's complaint and remand for proceedings consistent with this opinion. And, because we find that under 855 S.E.2d 902 West Virginia Code § 59-1-11(b)(2) Mr. Smith should have been permitted to photograph the public documents he reviewed in the Grant County C......

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