State v. Smith

• Decision Date: 16 June 2020
• Docket Number: No. 19-0143,19-0143
• Citation: 844 S.E.2d 711
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Harry Lee SMITH, Jr., Defendant Below, Petitioner
• Court: West Virginia Supreme Court

844 S.E.2d 711

STATE of West Virginia, Plaintiff Below, Respondent

v.Harry Lee SMITH, Jr., Defendant Below, Petitioner

No. 19-0143

Supreme Court of Appeals of West Virginia.

Submitted: April 21, 2020

Filed: June 16, 2020

Derrick W. Lefler, Esq., Princeton, West Virginia, Counsel for Petitioner.

Patrick Morrissey, Esq., Attorney General, Scott E. Johnson, Esq., Gordon L. Mowen, II, Esq., Assistant Attorneys General, Counsel for Respondent.

WALKER, Justice:

A grand jury indicted Petitioner Harry L. Smith on two counts of kidnapping in violation of West Virginia Code § 61-2-14a(a)(2) (2017), among other crimes. Before trial, Petitioner moved to dismiss the kidnapping counts from the indictment, arguing that they did not include transportation as an element of the crime of kidnapping under § 61-2-14a(a)(2). The circuit court denied Petitioner's motion, the case proceeded to trial, and the jury convicted Petitioner on all counts. Petitioner now appeals the kidnapping convictions and renews his argument that the indictment omitted an essential element of the crime of kidnapping. We agree and vacate Petitioner's kidnapping convictions, while affirming his remaining convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2018, a Mercer County grand jury indicted Petitioner on two counts of kidnapping (Counts 1 and 2) in violation of West Virginia Code § 61-2-14a(a)(2), three counts of wanton endangerment (Counts 4–6) in violation of § 61-7-12 (2012), and one count of breaking and entering (Count 3) in violation of § 61-3-12 (2009). All charges stemmed from Petitioner's alleged actions at the home of his former girlfriend on December 4, 2017.¹

Pertinent to Petitioner's appeal, the kidnapping counts of the indictment alleged as follows:

THE GRAND JURY CHARGES, COUNT 1: that on or about the 4th day of December 2017, in the County of Mercer, State of West Virginia, [Petitioner] committed the offense of "Kidnapping" by unlawfully and feloniously holding [D.R.-2] at gun point against [his] will, with the intent to terrorize [him], against the peace and dignity of the State; and

COUNT 2: the Grand Jury further charges, that on or about the 4th day of December, 2017, in the County of Mercer, State of West Virginia, [Petitioner] committed the offense of "Kidnapping" by unlawfully and feloniously holding A.R. at gun point against her will, with the intent to terrorize her, against the peace and dignity of the State ....

Petitioner moved to dismiss Counts 1 and 2 of the indictment in July 2018. He argued that those counts omitted an element of the offense of kidnapping under § 61-2-14a(a)(2).²

Specifically, Petitioner asserted that they did not include "transportation," which Petitioner characterized as the "defining element" of the crime of kidnapping. Petitioner concluded that because Counts 1 and 2 omitted the essential element of "transportation," they did not follow the language of § 61-2-14a(a)(2), so they suffered a material deficiency that the State could not cure by amending the indictment. The State responded that the word "or" in § 61-2-14a(a)(2) made that subsection "disjunctive" so that a person could violate § 61-2-14a(a)(2) in two ways. First, he could violate that statute by unlawfully taking custody, inter alia, of a person and then transporting that person with the intent to inflict bodily injury. Or, he could violate that statute by unlawfully taking custody, inter alia, of a person with the intent to terrorize that person or another. So, the State reasoned that, contrary to Petitioner's argument, Counts 1 and 2 of the indictment were sufficient in view of the statutory language.

The circuit court considered Petitioner's motion to dismiss during a pre-trial hearing on September 10, 2018. Dispensing with argument from the parties, the circuit court denied Petitioner's motion and explained that it had

looked at [Petitioner's motion to dismiss] and reviewed the statute in question. The Court would begin its ruling by saying that this is a poorly written statute. I mean, it really is. However, you know, just a plain reading of the statute, in the Court's opinion, the terrorize portion under [ (a)(2) ] in the Court's opinion does not require to transport. I don't – I don't think the transport is required. I think if they wanted to require the transport, there's a better way they could have worded it. Like I said, I think the whole statute itself is poorly written. But the Court's plain reading of the statute specifically [a](2) ], if the kidnapping is done with the intent to terrorize a victim or another person, then the transportation is not required.^{[3 ]}

The case proceeded to trial and the jury convicted Petitioner on all counts.⁴ Petitioner moved for a new trial on November 2, 2018,⁵ and renewed his argument that Counts 1 and 2 of the indictment omitted an essential element of the crime of kidnapping. By order entered January 24, 2019, the circuit court denied Petitioner's motion for a new trial, adjudged him guilty on all counts of the indictment, and sentenced him to not less than twenty years and not more than fifty years on Count 1, Kidnapping, and life without mercy on Count 2, Kidnapping, with those sentences to run consecutively; to concurrent five-year sentences for Counts 4, 5, and 6 (wanton endangerment); and to one to ten years for Count 3 (breaking and entering). The court ordered the sentences for Counts 3, 4, 5, and 6 to run concurrently, and those concurrent sentences to run consecutively to the sentences for Counts 1 and 2. Petitioner now appeals that part of the circuit court's order of January 24, 2019 pertaining to the convictions and sentences for Counts 1 and 2.

II. STANDARD OF REVIEW

" ‘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)."⁶ "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."⁷ We turn to the parties’ arguments.

III. DISCUSSION

Petitioner's appeal poses the question of whether the circuit court correctly applied West Virginia Code § 61-2-14a(a)(2) when it found that the kidnapping counts of the indictment correctly stated the elements of that offense.⁸ In pertinent part, § 61-2-14a(a) says:

(a) Any person who unlawfully takes custody of, conceals, confines or restrains another person against his or her will by means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation or enticement with the intent:

(1) To hold another person for ransom, reward or concession;

(2) To transport another person with the intent to inflict bodily injury or to terrorize the victim or another person; or

(3) To use another person as a shield or hostage, is guilty of a felony and, upon conviction, shall be punished by confinement by the Division of Corrections for life, and, notwithstanding the provisions of article twelve, chapter sixty-two of this code, is not eligible for parole.

Petitioner argues that the circuit court misapplied that statute because the kidnapping charges in the indictment—that Petitioner "committed the offense of ‘Kidnapping’ by unlawfully and feloniously holding [others] at gun point against [their wills], with the intent to terrorize [them]"—omitted an essential element of the crime of kidnapping: transportation. Petitioner argues that if this Court accepts the circuit court and State's application of the statute, we will enable the transformation of lesser crimes, including wanton endangerment with a firearm,⁹ into kidnapping.¹⁰ According to Petitioner, the plain and unambiguous language of § 61-2-14a(a)(2) shows that the Legislature did not intend that outcome. Petitioner observes that the Legislature created three subsections within § 61-2-14a(a). Subsections (a)(1) and (a)(3) describe one form of kidnapping, he states. Had the Legislature "intended there to be two separate types of kidnapping described in [ (a)(2) ], one with transportation as an element and one without," Petitioner reasons, then it would "have separated them into two separate subsections as [it] had done with the other various ways the offense could be committed, as in subsections (a)(1) and (a)(3)." In sum, Petitioner's theory is § 61-2-14a(a)(2) describes only one kidnapping offense—not two as the circuit court and State conclude—and that Counts 1 and 2 omitted an essential element of that single offense: transportation.

The State responds that had the Legislature intended § 61-2-14a(a)(2) to describe only one kidnapping offense, rather than two, it would not have used the infinitive "to terrorize." According to the State, the presence of the second infinitive verb in (a)(2) sets it apart from (a)(1) and (a)(3), which both include only one infinitive verb ("To hold" and "To use," respectively) and create only one form of kidnapping, each. Because the Legislature used two infinitive verbs in (a)(2) ("to inflict" and "to terrorize"), the State contends that the Legislature clearly intended that (a)(2) describe two kidnapping crimes. The State also argues that the disjunctive "or" ("to inflict bodily injury or to terrorize....") further demonstrates the Legislature's intent for (a)(2) to create two kidnapping crimes. Finally, the State argues that Petitioner's take on § 61-2-14a(a)(2) makes the "to" preceding "terrorize" superfluous and so violates the rule that all words in a statute must mean something.¹¹

"The primary object in construing a statute is to ascertain and give effect to the intent of the legislature."¹² "Plain statutory language does not need to be construed. In other words, ‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of...