State v. Maichle

• Docket Number: 21-0943
• Decision Date: 09 November 2023
• Parties: STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. TIMOTHY R. MAICHLE, Defendant Below, Petitioner.
• Court: Supreme Court of West Virginia

1

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent,
v.
TIMOTHY R. MAICHLE, Defendant Below, Petitioner.

No. 21-0943

Supreme Court of Appeals of West Virginia

November 9, 2023

Submitted: October 11, 2023

Appeal from the Circuit Court of Fayette County The Honorable Paul M. Blake, Jr., Judge Criminal Action No. 21-F-130

Gary A. Collias, Esq. Public Defender Services Appellate Advocacy Division Charleston, West Virginia Attorney for the Petitioner

Patrick Morrisey, Esq. Attorney General Frankie Dame, Esq. Assistant Solicitor General Andrea Nease Proper, Esq. Senior Assistant Attorney General Charleston, West Virginia Attorneys for the Respondent

2

SYLLABUS BY THE COURT

1. "'Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations.' Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996); Syllabus Point 3, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999)." Syllabus point 1, State v. Legg, 218 W.Va. 519, 625 S.E.2d 281 (2005).

2. "The requirements set forth in W.Va. R. Crim. P. 7 were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure." Syllabus point 4, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

3. "An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R. Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy." Syllabus point 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

3

4. "'"[T]o lawfully charge an accused with a particular crime[,] it is imperative that the essential elements of that crime be alleged in the indictment." Syllabus Point 1, State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E.2d 115 (1966).' Syl. Pt. 4, State v. Palmer, 210 W.Va. 372, 557 S.E.2d 779 (2001)." Syllabus point 3, in part, State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006) (per curiam).

5. "'To support a finding of unlawful wounding under [ W.Va. Code § 61-2-9], there must be intent to produce a permanent disability or disfiguration.' [Syllabus point 3,] State v. Taylor, 105 W.Va. 298, [142 S.E. 254 (1928)]." Syllabus point 3, State v. Stalnaker, 138 W.Va. 30, 76 S.E.2d 906 (1953).

6. The intent to maim, disfigure, disable, or kill is an essential element of the offenses of malicious assault and unlawful assault pursuant to West Virginia Code § 61-2-9 (eff. 2017).

7. "'An indictment predicated on a statute which specifically makes intent an element of the offense sought to be charged must aver the intent.' Syllabus Point 1, State v. Sprague, 111 W.Va. 132, 161 S.E. 24 (1931)." Syllabus point 1, State v. Parks, 161 W.Va. 511, 243 S.E.2d 848 (1978).

4

OPINION

BUNN, JUSTICE:

This case raises the sufficiency of an indictment for malicious assault, sometimes referred to as "malicious wounding." Petitioner, Timothy Maichle, argues that the circuit court erred by denying his motion to dismiss the malicious assault count of an indictment because it did not reference the intent to "maim, disfigure, disable or kill," which he argues is an essential element of the offense. See W.Va. Code § 61-2-9(a) (eff. 2017). The State counters that the circuit court correctly found there are two ways to commit malicious assault: (1) by maliciously shooting, stabbing, cutting, or wounding any person; or (2) by any means causing a person bodily injury with the intent to maim, disfigure, disable, or kill. We find the indictment was insufficient, because it did not include an essential element of the offense of malicious assault. Therefore, we vacate the circuit court's sentencing order and remand this case with instructions to dismiss Mr. Maichle's conviction for malicious assault and re-sentence him on the remaining charges.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Maichle was charged with the following crimes in a three-count indictment dated May 11, 2021: Count One, attempted murder;^[1] Count Two, malicious

5

assault;^[2] and Count Three, third-offense domestic battery.^[3] Relevant to this appeal, Count Two alleged that

TIMOTHY R. MAICHLE, on or about the 9th day of September, 2020, in the said County of Fayette, committed the offense of "malicious assault" in that he did unlawfully, intentionally, feloniously, and maliciously wound Amanda Maichle, by pushing her from a moving motor vehicle, against the peace and dignity of the State. W.Va. Code § 61-2-9.

On June 8, 2021, Mr. Maichle filed a motion to dismiss this count of the indictment claiming it was deficient because the State omitted the required element of "intent to maim, disfigure, disable, or kill." See W.Va. Code § 61-2-9(a) ("If any person maliciously shoots, stabs, cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she . . . is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than two nor more than ten years. . . .").

The State responded that a person may commit malicious assault two ways: (1) by maliciously shooting, stabbing, cutting, or wounding any person; or (2) by any means causing a person bodily injury with the intent to maim, disfigure, disable, or kill. The circuit court agreed, finding Mr. Maichle was "indicted under the wounding provision

6

of the statute," so "'intent to maim, disfigure, or kill' need not be set forth in the indictment." Thus, the court denied Mr. Maichle's motion to dismiss by order entered on July 14, 2021.

At the beginning of Mr. Maichle's jury trial, when the court was addressing preliminary matters, Mr. Maichle renewed his motion to dismiss Count Two of the indictment and asked the court to reconsider its previous denial of his motion. The court reaffirmed its original ruling and again denied the motion. Likewise, the circuit court refused Mr. Maichle's proposed jury instruction on malicious assault, which included the element of "intent to maim, disfigure, disable or kill," and, over Mr. Maichle's objection, instructed the jury using the State's malicious assault instruction, which tracked the language in Count Two of the indictment. W.Va. Code § 61-2-9(a).

The jury returned a verdict convicting Mr. Maichle of the felony offenses of attempted second-degree murder, a lesser included offense of attempted first-degree murder; malicious assault; and third-offense domestic battery.^[4] Mr. Maichle filed a motion

7

for a new trial again raising, among other issues, the sufficiency of Count Two of the indictment. He also raised this issue at his sentencing hearing, to no avail. By final order entered on October 20, 2021, the circuit court denied Mr. Maichle's motion for a new trial, again ruling, in relevant part, that Count Two of the indictment was not defective because it sufficiently charged Mr. Maichle with malicious assault. The court reasoned that there are two ways to violate the malicious assault statute, and that Count Two of the indictment "tracks one way by which the crime of malicious assault can be committed and all of the essential elements for committing malicious assault are present." By contrast, the court found that "[t]he missing language which the Defendant claims renders Count Two defective tracks the second manner in which the statute can be violated and the crime committed." The court concluded that "[a]s the language of Count Two contains all of the essential elements of one manner of committing the offense of malicious assault, Count Two is not defective." This appeal followed.

II.

STANDARD OF REVIEW

We exercise plenary review when asked to consider the sufficiency of an indictment.

8

"Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations." Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996); Syllabus Point 3, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

Syl. pt. 1, State v. Legg, 218 W.Va. 519, 625 S.E.2d 281 (2005). Furthermore, "[t]his Court's standard of review concerning a motion to dismiss an indictment is, generally, de novo." Syl. pt. 1, in part, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009). Finally, to the extent our resolution of this matter involves statutory construction, "[i]nterpreting a statute . . . presents a purely legal question subject to de novo review." Syl. pt. 1, in part, Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 466 S.E.2d 424 (1995).

III.

DISCUSSION

As he repeatedly argued below, Mr. Maichle contends that Count Two of the indictment is insufficient because it omits an essential element of the crime of malicious assault: the intent to maim, disfigure, disable, or kill. He tracks the history of the statute to argue that the intent to maim, disfigure, disable, or kill is an essential element of the offense of malicious assault. The State likewise reiterates its prior contention, which was adopted by the circuit court, that there are two ways to commit malicious assault, and the State simply charged Mr. Maichle using the method that requires the State to prove only that he maliciously wounded his victim. The State reasons that use of the disjunctive "or" prior to

9

the referenced intent language supports its interpretation of the statute.^[5] We agree with Mr. Maichle and find the circuit court erred by denying his pretrial motion to strike the malicious assault count of...