State v. Soustek

Decision Date08 May 2014
Docket NumberNo. 13–0367.,13–0367.
Citation233 W.Va. 422,758 S.E.2d 775
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Anthony SOUSTEK, Defendant Below, Petitioner.
CourtWest Virginia Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. This 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).

2. “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).

3. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

4. “Undefined words and terms in a legislative enactment will be given their common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).

5. A criminal bail agreement constitutes a financial transaction under the provisions of the identity theft statute set forth in West Virginia Code § 61–3–54 (2010).

Joseph R. Kinser, Esq., Public Defender Corporation, Martinsburg, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Christopher S. Dodrill, Assistant Attorney General, Charleston, WV, for Respondent.

WORKMAN, Justice:

This case is before the Court upon the appeal from the circuit court's March 11, 2013, order sentencing 1 the Petitioner, Anthony Soustek, based upon a conditional plea 2 to one felony count of identity theft relating to a bail agreement, one count of misdemeanor simple possession, and one count of a misdemeanor DUI.3 The conditional plea permitted the Petitioner to appeal the circuit court's ruling denying his motion to dismiss the two felony counts in the indictment relating to identity theft 4 based upon the argument that the criminal bail agreement and the affidavit of eligibility for appointed counsel do not constitute financial transactions as contemplated by the provisions of West Virginia Code § 61–3–54 (2010).5 Based upon our review of the parties' briefs, arguments, appendix record and all other matters submitted before the Court, we conclude that the circuit court correctly determined that the criminal bail agreement was a financial transaction as contemplated by West Virginia Code § 61–3–54. We therefore affirm the circuit court's decision.

I. Facts and Procedural History

On April 6, 2012, shortly before midnight, the police stopped the Petitioner for a defective brake light. The initial traffic stop resulted in the Petitioner being arrested and charged with five misdemeanors, including DUI and simple possession. The Petitioner was taken to appear before a magistrate during the early morning hours of April 7, 2012.

As part of his initial appearance, the Petitioner signed several documents including a document entitled “Criminal Bail Agreement: Cash or Recognizance” and an affidavit to establish eligibility for appointed counsel. On these documents the Petitioner provided his brother's name, Alexander Soustek. 6 It is undisputed that the Petitioner gave 7 the magistrate false information. As the Petitioner's counsel acknowledged in the hearing on the motion to dismiss the indictment, the Petitioner “gave false information on the document and certainly that's not behavior that we should condone.” Based upon the information provided to the magistrate by the Petitioner, the magistrate set bail at $1,700, cash or surety.

After the magistrate set bail, but before the Petitioner paid the bail amount, the Petitioner's brother, Alexander, discovered that the Petitioner had given the police his name when the Petitioner was arrested. The Petitioner's brother contacted the Eastern Regional Jail and someone at the jail contacted the police concerning the Petitioner's use of his brother's name.

On September 11, 2012, the Petitioner was indicted on two counts of identity theft in accordance with the provisions of West Virginia Code § 61–3–54. See note 5 supra. The Petitioner moved to dismiss the identity theft counts in the indictment arguing that the use of his brother's name on the bail agreement and the affidavit for appointment of counsel was not “for the purpose of making financial or credit transactions.” Id. On November 27, 2012, the circuit court conducted a hearing on the Petitioner's motion. The circuit court denied the motion during the hearing, specifically finding that “bail is a financial transaction.” 8 On December 17, 2012, the Petitioner entered a conditional guilty plea,9 which allowed him to pursue the instant appeal of the circuit court's ruling denying his motion to dismiss the identity theft counts in the indictment.10

II. Standard of Review

This 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). Further, in light of this case involving an issue that is purely one of statutory interpretation, we have previously held as follows: “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). With these principles in mind, we proceed to consider whether the circuit court erred in refusing to dismiss the felony identity theft count relating to the criminal bail agreement 11 against the Petitioner.

III. Discussion of Law

The crux of this case focuses upon whether entering into a bail agreement constitutes a financial transaction as contemplated by West Virginia Code § 61–3–54. Under the statute, a person must knowingly take the name or other identifying information of another person, without consent, “with the intent to fraudulently represent that he or she is the other person for the purpose of making financial or credit transactions in the other person's name[.] Id. (emphasis added). The Petitioner argues that because “financial transaction” is undefined within the statute, “common sense would suggest that there has to be an exchange of money for goods or services (or in the event of a credit transaction, the exchange of credit for goods or services).” 12 Thus, the Petitioner maintains that because no money or credit ever exchanged hands, there was no “financial” or “credit” transaction. Therefore, the circuit court should have dismissed the identity theft counts. Conversely, the Respondent argues that the Petitioner intended to use his brother's name and identification information to obtain bail. This conduct, according to the Respondent, constitutes a financial transaction as it “altered the legal relationship between ... [the Petitioner] and the court.” Additionally, the Respondent asserts that the actual transaction did not have to be completed; rather, all that the State had to prove under the statute was that the Petitioner took his brother's name with the intent to fraudulently represent to the magistrate that the Petitioner was his brother in order to get bail. SeeW. Va.Code § 61–3–54.

In order to determine whether using someone else's identity, without consent, in order to obtain bail falls within the statutory language as being for the purpose of making financial or credit transactions in the other person's name,” we turn to our well-established principles of statutory construction. The Court first recognizes that [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 interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). Further, [u]ndefined words and terms in a legislative enactment will be given their common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).

Applying these principles to West Virginia Code § 61–3–54, we begin by recognizing that the Petitioner does not argue that the statute is ambiguous and we do not find the language of the statute to be ambiguous. See Elder, 152 W.Va. at 571, 165 S.E.2d at 109, Syl. Pt. 2. Instead, the Petitioner contends that because there is no express definition of what constitutes a “financial” transaction as that phrase is used within the statute, we must resort to a “common sense” approach. In determining what undefined words and terms in a statute mean, undefined words and terms are given “their common, ordinary and accepted meaning.” Cohen, 175 W.Va. at 527, 336 S.E.2d at 173, Syl. Pt. 6, in part; see State v. Sulick, 232 W.Va. 717, 724, 753 S.E.2d 875, 882 (2012) ([W]e note that there are instances, such as the present one, where the language used by the Legislature may be plain but where it has failed to define a certain word or phrase. ‘In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.’ Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled, in part, on other grounds by Lee–Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).”).

The common, ordinary and accepted meaning of the word “financial” is “relating to money.” Merriam–Webster,http:// www. m- w. com (last visited May 7, 2014). Further, the word [t]ransaction” is defined as [s]omething performed or carried out” or [a]ny activity involving two or more persons.” Black's Law Dictionary 1535 (8th ed.1999). Additionally, West Virginia Code § 62–1C–2 (2010) defines bail as

security for the appearance of a defendant to answer to a specific criminal charge before any...

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