State of West Virginia v. Tracy A. Back

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2018 Term
FILED
_____________
November 9, 2018
released at 3:00 p.m.
No. 17-0466 EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,

TRACY A. BACK,
Defendant Below, Petitioner.

________________________________________________

Appeal from the Circuit Court of Pocahontas County

Honorable Jennifer P. Dent, Judge

Criminal Action No. 16-F-33(D)

AFFIRMED

________________________________________________

Submitted: October 24, 2018
Filed: November 9, 2018

E. Lavoyd Morgan, Jr. Patrick Morrisey
E. Lavoyd Morgan, Jr. & Assocs., LC Attorney General
Lewisburg, West Virginia Robert L. Hogan
Attorney for the Petitioner Deputy Attorney General
Zachary Viglianco
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE ALLEN H. LOUGHRY II, suspended and therefore not participating.

JUSTICE PAUL T. FARRELL, sitting by temporary assignment.

SYLLABUS BY THE COURT

1. “Once the defendant establishes a prima facie case of willful,

intentional fraud in obtaining an indictment[,] he is entitled to a hearing with compulsory

process.” Syllabus point 3, in part, State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383

S.E.2d 844 (1989).

2. “Except for willful, intentional fraud[,] the law of this State does not

permit the court to go behind an indictment to inquire into the evidence considered by the

grand jury, either to determine its legality or its sufficiency.” Syllabus, Barker v. Fox,

160 W. Va. 749, 238 S.E.2d 235 (1977).

3. Pursuant to W. Va. Code § 61-6-24(b) (LexisNexis 2014), it is

unlawful to knowingly and willfully threaten to commit a terrorist act, with or without the

intent to commit the act. Thus, in order to violate W. Va. Code § 61-6-24(b), the threat

itself need not meet the definition of a “terrorist act” as set out in W. Va. Code § 61-6-

24(a)(3), but the specific act that is threatened must meet that definition.

i
Jenkins, Justice:

Tracy Back (“Mr. Back”) herein appeals from the April 20, 2017, order of

the Circuit Court of Pocahontas County sentencing him to a term of incarceration of one

to three years for his conviction of one felony count of threatening to commit a terrorist

act in violation of W. Va. Code § 61-6-24(b) (LexisNexis 2014). Although Mr. Back

raises four assignments of error, this case is resolved by addressing only two issues.1

First, Mr. Back claims that the circuit court erred by failing to dismiss the indictment

against him based upon misleading evidence submitted to the grand jury. Mr. Back next

claims that the evidence supporting his conviction was insufficient. Having considered

the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the

applicable legal authority, we find no error. Accordingly, we affirm the circuit court.

FACTUAL AND PROCEDURAL HISTORY

In February 2016, Mr. Back’s mother (“Mrs. Back”) reported to law

enforcement officials that Mr. Back had been communicating to her various threats to kill

members of his and his ex-wife’s family, and also his desire to kill people as a way of

gaining attention because he was not known in West Virginia. Mr. Back was

subsequently arrested. He was indicted by a Pocahontas County Grand Jury on August 2,

2016. The single count indictment found that:

1
See note 4, infra, for a discussion of why we need only address two of the
issues raised by Mr. Back.

[F]rom on or about the ___ day of November, 2015[,] to the
___ day of February, 2016, in Pocahontas County, West
Virginia, TRACY ALLEN BACK did knowingly, willfully,
and feloniously threaten to commit a terrorist act, with or
without the intent to commit the act, to wit: TRACY ALLEN
BACK did threaten to kill several of his family members and
stated he would like to become like one of those individuals
who kill a bunch of people to get attention because he doesn’t
know anyone in West Virginia, and no one knows him. Such
act is likely to result in serious bodily injury and is intended
to intimidate or coerce the civilian population. Such act was
against the peace and dignity of the State of West Virginia.
West Virginia Code, Chapter 61, Article 6, Section 24(b), as
amended.

A single witness had testified before the grand jury, a chief deputy of the Pocahontas

County Sheriff’s Department who investigated Mrs. Back’s report.

Mr. Back filed a motion to dismiss the indictment in which he asserted four

grounds for dismissal. Specifically, he argued that: (1) his alleged conduct did not

violate W. Va. Code § 61-6-24(b); (2) the chief deputy provided information to the grand

jury that had not been disclosed to the defense, that was not supported by documentary

proof, and that was presented in an effort to depict Mr. Back as a dangerous man; (3) the

prosecutor elicited testimony from the chief deputy that expressed the officer’s opinion as

to Mr. Back’s intentions related to the elements of the alleged offense; and (4) the chief

deputy improperly referenced Mr. Back’s exercise of his Fifth Amendment right to refuse

to answer questions and Mr. Back’s incarceration. Mr. Back’s motion was denied by the

circuit court based upon the fact that none of the errors he asserted were alleged to have

been the result of any “willful, intentional fraud” as required by Syllabus point 2 of State

ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989).

Mr. Back was then tried before a jury. The State presented two witnesses,

the chief deputy and Mrs. Back. At the close of the State’s evidence, Mr. Back moved

for a judgment of acquittal, which motion was denied by the circuit court. The defense

declined to present evidence, and the case was submitted to the jury. After a period of

deliberation, the jury announced that it was unable to reach a unanimous decision. As a

result, the jury was given an Allen charge.2 Following additional deliberations, the jury

returned a verdict finding Mr. Back guilty of one count of threatening to commit a

terrorist act. Mr. Back then filed post-trial motions seeking judgment of acquittal or, in

the alternative, a new trial. After conducting a hearing on the same, the circuit court

denied both motions. Thereafter, Mr. Back was sentenced to an indeterminate term of

incarceration of one to three years.3 This appeal followed.

2
This Court has explained that “[a]n Allen charge is a ‘supplemental
instruction given to encourage deadlocked juries to reach an agreement.’ F. Cleckley, 2
Handbook on West Virginia Criminal Procedure, at 257 (1993).” State v. Shabazz, 206
W. Va. 555, 559, 526 S.E.2d 521, 525 (1999). Accord 2 Trisha Zeller, Handbook on
West Virginia Criminal Procedure, § XIX-A[6], at 19-20 (3d ed. 2018). “The name for
this particular instruction originated from the case of Allen v. United States, 164 U.S.
492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).” State v. Waldron, 218 W. Va. 450, 459 n.11,
624 S.E.2d 887, 896 n.11 (2005) (per curiam).
3
Mr. Back’s projected release date was September 5, 2017.

II.

STANDARD OF REVIEW

Each of the issues herein raised is addressed by this Court under a different

standard of review. Accordingly, the proper standard for our review is set out in

connection with the issue to which it relates.

III.

DISCUSSION

Although Mr. Back asserts four separate assignments of error, only two

distinct issues are thereby raised.4 Thus, we first address Mr. Back’s challenge of the

4
We address Mr. Back’s first assignment of error challenging the circuit
court’s ruling denying his motion to dismiss the indictment returned against him. Mr.
Back’s second assignment of error asserts that the circuit court erred in denying his
motion for judgment of acquittal, challenging the sufficiency of the evidence, made at the
close of the State’s case-in-chief. In his appellate brief, Mr. Back fails to cite to a single
authority on this issue. Accordingly, we decline to address this inadequately briefed
issue. See State v. White, 228 W.Va. 530, 541 n.9, 722 S.E.2d 566, 577 n.9 (2011)
(“Typically, this Court will not address issues that have not been properly briefed.”);
State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we
liberally construe briefs in determining issues presented for review, issues which
are . . . mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal.”). See also W. Va. R. App. P. Rule 10(c)(7) (“The brief must
contain an argument exhibiting clearly the points of fact and law presented, the standard
of review applicable, and citing the authorities relied on . . . .” (emphasis added)).

Mr. Back’s assignments of error three and four assert the same issue, the
sufficiency of the evidence to support his conviction. In assignment of error three, Mr.
Back asserts that “[t]he Trial Court erred in denying the Petitioner’s post trial motions for
Judgment of Acquittal and New Trial based on grounds of insufficiency of evidence.” In
assignment of error four, Mr. Back asserts that “[t]he Respondent State of West Virginia
failed to present evidence at trial sufficient to overcome the Petitioner’s Constitutional
presumption of innocence, and failed to present evidence from which a jury could find
4

circuit court’s ruling denying his motion to dismiss the indictment returned against him.

We then will address his challenge of the sufficiency of the evidence presented at trial.

A. Indictment

Mr. Back first contends that the circuit court erred by denying his motion to

dismiss the indictment as having been based upon misleading testimony, insufficient

evidence, and a misapplication of W. Va. Code § 61-6-24. Notably, Mr. Back’s brief

expressly states that he “does not allege willful, intentional fraud on the part of the

Respondent [the State of West Virginia].” Rather, Mr. Back claims that “misleading

testimony on the part of the Respondent, through inattention and negligence, was

presented to the grand jury[.]” Mr. Back asserts that this Court’s holding in Syllabus

point 5 of Pinson, 181 W. Va. 662, 383 S.E.2d 844, grants a trial court the discretion to

review the transcript of a grand jury proceeding for legality and sufficiency under

circumstances such as those presented in the instant case.

The State responds that the circuit court properly denied Mr. Back’s motion

to dismiss the indictment without conducting an in camera review of the grand jury

transcript. According to the State, Mr. Back has misinterpreted the holding in Syllabus

point 5 of Pinson. The State explains that Mr. Back argues for the application of the

guilt beyond a reasonable doubt as to all of the elements of the offense charged.”
Because both of these assignments ask this Court to review the sufficiency of the
evidence to support Mr. Back’s conviction, we will consolidate them into one discussion.

5
standard announced in Syllabus point 5 of Pinson without regard for the threshold finding

of “willful, intentional fraud” that is required by Syllabus point 2 of Pinson.

At the outset, we observe that “[o]ur standard of review of a motion to

dismiss an indictment is generally de novo.” State v. Davis, 205 W. Va. 569, 578, 519

S.E.2d 852, 861 (1999).5 Applying this standard, we proceed to address the propriety of

the circuit court’s ruling denying Mr. Back’s motion to dismiss the indictment.

With respect to a circuit court’s consideration of a motion to dismiss an

indictment, this Court has held that, “[o]nce the defendant establishes a prima facie case

of willful, intentional fraud in obtaining an indictment[,] he is entitled to a hearing with

compulsory process.” Syl. pt. 3, in part, Pinson, 181 W. Va. 662, 383 S.E.2d 844 (citing

Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977)). This Court has clarified,

however, that “[e]xcept for willful, intentional fraud[,] the law of this State does not

5
The Davis Court went on to acknowledge that,

in addition to the de novo standard of review, where an
evidentiary hearing is conducted upon a motion to dismiss[,]
this Court’s “clearly erroneous” standard of review is
ordinarily invoked concerning a circuit court’s findings of
fact. See generally, Town of Fayetteville v. Law, 201 W. Va.
205, 495 S.E.2d 843 (1997); McCormick v. Allstate Insurance
Company, 197 W. Va. 415, 475 S.E.2d 507 (1996).

State v. Davis, 205 W. Va. 569, 578, 519 S.E.2d 852, 861 (1999). It does not appear that
the circuit court conducted an evidentiary hearing before ruling on Mr. Back’s motion.
Moreover, the grounds relied upon by the circuit court in denying Mr. Back’s motion did
not require findings of fact, and the circuit court made none. Accordingly, we do not
apply the clearly erroneous portion of the standard of review.
6

permit the court to go behind an indictment to inquire into the evidence considered by the

grand jury, either to determine its legality or its sufficiency.” Syl., Barker v. Fox, 160

W. Va. 749, 238 S.E.2d 235 (1977). Accord Syl. pt. 2, Pinson, 181 W. Va. 662, 383

S.E.2d 844.

Although Mr. Back has expressly stated that he “does not allege willful,

intentional fraud on the part of the Respondent [the State of West Virginia],” he

nevertheless contends that the circuit court had discretion to review the transcript of the

grand jury proceedings pursuant to Syllabus point 5 of Pinson. This holding provides:

When perjured or misleading testimony presented to a
grand jury is discovered before trial and there is no evidence
of prosecutorial misconduct, the State may withdraw the
indictment without prejudice, or request the court to hold an
in camera hearing to inspect the grand jury transcripts and
determine if other sufficient evidence exists to support the
indictment.

Id. Mr. Back fails to recognize, however, that Pinson did not eliminate the requirement

for a prima facia showing of willful, intentional fraud before a circuit court may “go

behind an indictment to inquire into the evidence considered by the grand jury[.]” Syl.,

Barker v. Fox, 160 W. Va. 749, 238 S.E.2d 235. Indeed, prior to reaching its discussion

that resulted in the holding announced in Syllabus point 5, the Pinson Court explained

that

the record before us is incomplete; various proceedings,
including the dismissal hearing, are not in the record.
Furthermore, the state does not object to the dismissal but
merely the dismissal with prejudice. Therefore, for the sake
of this discussion, we will assume the circuit court was

correct in its finding of a prima facie case of willful,
intentional fraud.

181 W. Va. at 666, 383 S.E.2d at 848 (some emphasis added). Obviously, then, it was

incumbent upon Mr. Back to make a prima facie showing of willful, intentional fraud.

Without such a showing, the circuit court simply could not inquire into the evidence

presented to the grand jury. Because Mr. Back failed to make a prima facie showing of

willful, intentional fraud, the circuit court did not err in denying his motion to dismiss the

indictment.

B. Sufficiency of the Evidence

Mr. Back additionally argues that the circuit court erred in finding that the

evidence presented against him was sufficient to support his conviction for violating

W. Va. Code § 61-6-24.6 The State responds that a review of the record reveals that it

presented sufficient evidence as to each of the elements of the statute prohibiting threats

of terrorist acts.

It is well established that

[t]he function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine
whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a
reasonable doubt. Thus, the relevant inquiry is whether, after

6
Mr. Back raised this issue in two separate assignments of error. See supra
note 4 for an explanation of why we consolidate the issues into one discussion.

viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime proved beyond a reasonable
doubt.

Syl. pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). See also Syl. pt. 2,

State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996) (“When a criminal defendant

undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be

viewed from the prosecutor’s coign of vantage, and the viewer must accept all reasonable

inferences from it that are consistent with the verdict. This rule requires the trial court

judge to resolve all evidentiary conflicts and credibility questions in the prosecution’s

favor; moreover, as among competing inferences of which two or more are plausible, the

judge must choose the inference that best fits the prosecution’s theory of guilt.”).

Furthermore,

[a] criminal defendant challenging the sufficiency of
the evidence to support a conviction takes on a heavy burden.
An appellate court must review all the evidence, whether
direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility
assessments that the jury might have drawn in favor of the
prosecution. The evidence need not be inconsistent with
every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury
verdict should be set aside only when the record contains no
evidence, regardless of how it is weighed, from which the
jury could find guilt beyond a reasonable doubt. To the
extent that our prior cases are inconsistent, they are expressly
overruled.

Syl. pt. 3, Guthrie, 194 W. Va. 657, 461 S.E.2d 163. Insofar as our analysis of this issue

requires us to consider relevant statutory language, our review is plenary. See Syl. pt. 1,

Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“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.”). With these

standards in mind, we proceed to our analysis of W. Va. Code § 61-6-24 and our

consideration of whether the evidence against Mr. Back was sufficient to support his

conviction thereof.

Mr. Back contends that the evidence presented at trial was insufficient to

establish that he violated W. Va. Code § 61-6-24(b) because no evidence was presented

from which a jury could find guilt beyond a reasonable doubt that his threat was likely to

result in serious bodily injury or damage to property or the environment. Mr. Back bases

this assertion on the fact that he “had no weapons or apparent ability to carry out any

threat he may have made.” Mr. Back additionally asserts that there was insufficient

evidence that the “act threatened was intended to intimidate or coerce the civilian

population” because such conduct must be aimed at the civilian population as a whole.

Citing State v. Yocum, 233 W. Va. 439, 447, 759 S.E.2d 182, 190 (2014). Finally, and

without citing any authority, he argues that his statements could not be considered a

threat to commit terrorist acts because they were never communicated to the person or

persons being threatened with the acts.

Although there are multiple ways of violating W. Va. Code § 61-6-24(b),

Mr. Back was specifically convicted of threatening a terrorist act that was “[l]ikely to

result in serious bodily injury or damage to property or the environment,” and intended to

“[i]ntimidate or coerce the civilian population.” W. Va. Code §§ 61-6-24(a)(3)(A) &

(B)(i). West Virginia Code § 61-6-24(b) provides:

Any person who knowingly and willfully threatens to
commit a terrorist act, with or without the intent to commit
the act, is guilty of a felony and, upon conviction thereof,
shall be fined not less than $5,000 nor more than $25,000 or
confined in a state correctional facility for not less than one
year nor more than three years, or both.

The term “terrorist act” is defined as follows:

“Terrorist act” means an act that is:
(A) Likely to result in serious bodily injury or damage
to property or the environment; and
(B) Intended to:
(i) Intimidate or coerce the civilian population;
(ii) Influence the policy of a branch or level of
government by intimidation or coercion;
(iii) Affect the conduct of a branch or level of
government by intimidation or coercion; or
(iv) Retaliate against a branch or level of
government for a policy or conduct of the government.

W. Va. Code § 61-6-24(a)(3) (emphasis added).

In examining the foregoing statutory provisions, we are mindful that “[t]he

primary object in construing a statute is to ascertain and give effect to the intent of the

Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219

S.E.2d 361 (1975). In determining the intent of the Legislature, we “look first to the

statute’s language. If the text, given its plain meaning, answers the interpretive question,

the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v.

State Tax Dep’t, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995). On the other hand,

“[a] statute that is ambiguous must be construed before it can be applied.” Syl. pt. 1,

Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

This Court first had occasion to consider W. Va. Code § 61-6-24 in State v.

Yocum, 233 W. Va. 439, 759 S.E.2d 182, wherein we observed that, “[a]s was the case

with many other states, our anti-terrorism statute, West Virginia Code § 61-6-24, was

enacted in direct response to the events of September 11, 2001.” Yocum, 233 W. Va. at

445, 759 S.E.2d at 188 (footnote omitted). We further recognized the dual intention of

W. Va. Code § 61-6-24, i.e., “to thwart and/or punish future instances of qualifying acts

of terrorism.” Yocum, 233 W. Va. at 445, 759 S.E.2d at 188. Thus, it is from this

perspective that we consider Mr. Back’s arguments relating to the sufficiency of the

evidence.

Mr. Back’s first argument is that no evidence was presented that his threat

was likely to result in serious bodily injury or damage to property or the environment.

He bases this contention on the fact that he “had no weapons or apparent ability to carry

out any threat he may have made.” Mr. Back’s argument misinterprets W. Va. Code §

61-6-24(b).

In plain language, W. Va. Code § 61-6-24(b) prohibits knowingly and

willfully making a threat to commit a terrorist act, regardless of whether there is any

intent to actually commit the same. The accompanying definition of the term “terrorist

act,” set out in W. Va. Code § 61-6-24(a)(3), describes the characteristics of the act that

must be threatened in order to violate W. Va. Code § 61-6-24(b). In other words, the

threat itself need not meet the definition of a “terrorist act,” but the act threatened must

meet that definition, whether or not there was an associated intent to actually carry out

the threatened deed. Accordingly, we now expressly hold that, pursuant to W. Va. Code

§ 61-6-24(b), it is unlawful to knowingly and willfully threaten to commit a terrorist act,

with or without the intent to commit the act. Thus, in order to violate W. Va. Code § 61-

6-24(b), the threat itself need not meet the definition of a “terrorist act” as set out in

W. Va. Code § 61-6-24(a)(3), but the specific act that is threatened must meet that

definition.

Applying this holding to the case at bar, it is evident that, contrary to Mr.

Back’s assertion, the State was not required to present evidence that Mr. Back’s threat

was “[l]ikely to result in serious bodily injury or damage to property or the environment.”

W. Va. Code § 61-6-24(a)(3)(A). Rather, the specific act he threatened to undertake, i.e.,

to become an active shooter7 in order to gain attention, must meet the definition of a

terrorist act. We look to the evidence presented at trial to see if, when viewed in the light

7
According to the United States Department of Homeland Security, “[a]n
Active Shooter is an individual actively engaged in killing or attempting to kill people in
a confined and populated area; in most cases, active shooters use firearms(s) and there is
no pattern or method to their selection of victims.” Active Shooter How To Respond
(October 2008). https://www.dhs.gov/xlibrary/assets/active_shooter_booklet.pdf (last
visited October 31, 2018).

most favorable to the prosecution, the evidence was sufficient to establish that Mr. Back

threatened such an act.

The State presented the testimony of the chief deputy who investigated the

complaint made by Mrs. Back against her son. The chief deputy testified, without

objection, to the results of his investigation:

I discovered that Mr. Back had made threatening
statements, that he was homicidal and suicidal, and that he
wanted to be the first active shooter from the State of West
Virginia; he wanted to become famous for being an active
shooter from this state; and that he intended to commit acts
that would make him the first person to do that from this area.

Mrs. Back also testified at trial. She stated that her son, Mr. Back, had

threatened to go to Maryland for the purpose of killing his children, his siblings, his ex-

wife, and her sister. In addition, she testified that whenever he saw a story on the news

about people being killed, he would say he was going to do the same thing. Specifically,

she stated “[e]very time something came on, he would say that’s what I’m going to

do. . . . He was going to kill people. He said that was the only way to get attention.” In

one portion of her testimony, she explained that “[w]hen he would see people going

around killing people, some of the things that happened when he saw kids killed and

things like that, he said he wanted to do that one of these days because he wasn’t known

in West Virginia, and he would get attention that way.” Mrs. Back also testified that her

son liked to watch movies about terrorists, war movies, and anything with shooting in it;

he would say he was going to do the same thing he saw in those movies.

Considering this evidence in the light most favorable to the prosecution, we

find there was sufficient evidence from which a rational trier of fact could have found

that the act threatened by Mr. Back was “[l]ikely to result in serious bodily injury or

damage to property or the environment.” W. Va. Code § 61-6-24(a)(3)(A). According to

the testimony above, Mr. Back desired to kill certain members of his family as well as his

ex-wife and her sister. He further expressed his desire to become an active shooter,8 and

to kill people in the manner that he had observed in news stories and violent movies

about terrorists. Without question, such killings would be “[l]ikely to result in serious

bodily injury” as required by W. Va. Code § 61-6-24(a)(3)(A). Mr. Back’s assertion that

there was no evidence presented that he possessed any weapons or an ability to actually

carry out the threat is without merit. The ability to carry out a threat simply is not an

element of the crime of threatening to commit a terrorist act. The plain language of

W. Va. Code § 61-6-24(b) criminalizes threatening a terrorist act, as therein described,

“with or without the intent to commit the act.” It is axiomatic that, because there is no

need to establish an actual intent to commit the threatened act under the express terms of

W. Va. Code § 61-6-24(b), there likewise is no requirement that a defendant possess the

means by which to carry out the threatened activity.

8
See supra note 7 for a definition of the term “active shooter.”

To establish a violation of W. Va. Code § 61-6-24(b), the State also was

required to show that the act threatened by Mr. Back was “[i]ntended to intimidate or

coerce the civilian population.” W. Va. Code § 61-6-24(a)(3)(B)(i). Relying on dicta

from Yocum, Mr. Back contends that the State was required, and failed, to present

evidence demonstrating that he intended to intimidate or coerce the civilian population as

a whole.

The comment from the Yocum Court upon which Mr. Back relies merely

clarified that, in enacting W. Va. Code § 61-6-24, “the Legislature was contemplating

threats of terrorist activity aimed not at individuals . . . , but instead at the institutional

level.” Yocum, 233 W. Va. at 447, 759 S.E.2d at 190 (emphasis added).9 Subsequently,

9
In this regard, the Yocum Court explained:

[W]e consider what the Legislature intended when it created
an offense for threatening action against a branch or level of
government by means of intimidation or coercion. See
W. Va. Code § 61-6-24(a)(3)(B)(iii). Consistent with our
statutory obligation to give effect to each word of a statute
and to construe it in accord with the import of its language,
we cannot gloss over the fact that the terms “level” and
“branch” suggest that the Legislature was contemplating
threats of terrorist activity aimed not at individuals such as
Sergeant A. in this case, but instead at the institutional level.
It is noteworthy that not one of the four delineations of the
intent necessary to come within the definition of a “terrorist
act” is framed in terms of causing harm to an individual. See
W. Va. Code § 61-6-24(a)(3)(B)(i) - (iv). The first definition
of the requisite intent necessary to commit a statutorily-
defined “terrorist act” involves conduct aimed at the civilian
population as a whole and the remaining three all require
16
this Court, in State v. Knotts, expressed a hesitation to specifically define the term

“civilian population,” and discussed two jurisdictions that had declined to give a specific

definition to the term. 233 W. Va. 665, 670-71, 760 S.E.2d 479, 484-85 (2014) (citing

People v. Morales, 20 N.Y.3d 240, 982 N.E.2d 580 (2012), and State v. Laber, No.

12CA24, 2013 WL 3283218 (Ohio Ct. App. June 11, 2013)). The Knotts Court observed

that,

“[i]f we were to apply a broad definition to ‘intent to
intimidate or coerce a civilian population,’ the People could
invoke the specter of ‘terrorism’ every time a Blood assaults a
Crip or an organized crime family orchestrates the murder of
a rival syndicate’s soldier. But the concept of terrorism has a
unique meaning and its implications risk being trivialized if
the terminology is applied loosely in situations that do not
match our collective understanding of what constitutes a
terrorist act. History and experience have shown that it is
impossible for us to anticipate every conceivable manner in
which evil schemes can threaten our society. Because the
legislature was aware of the difficulty in defining or
categorizing specific acts of terrorism, it incorporated a
general definition of the crime . . . .”

State v. Knotts, 233 W. Va. at 670, 760 S.E.2d at 484 (quoting People v. Morales, 20

N.Y.3d at 249, 982 N.E.2d at 586). Ultimately, the Knotts Court, addressing a

sufficiency of the evidence challenge, similarly found it was

unnecessary to precisely define what constitutes a “civilian
population” within the confines of West Virginia Code § 61-
6-24. Instead, this matter is before the Court based upon the

conduct that is directed at a branch or level of government as
a whole. See id.

State v. Yocum, 233 W. Va. 439, 447, 759 S.E.2d 182, 190 (2014)
(emphasis added) (footnote omitted).

17
sufficiency of the evidence. In resolving this challenge, under
the statute, the State had the burden of proving [in relevant
part] that the Petitioner . . . “[i]ntended to . . . [i]ntimidate or
coerce the civilian population . . . ” Id.

The evidence showed that the Petitioner threatened to
use explosive devices on cars belonging to employees of the
credit union[.] . . . [E]ven though the threat was made to a
credit union employee, by the express words used by the
Petitioner it was “intended to intimidate or coerce the civilian
population” as the Petitioner threatened “to let the world
know how he felt about the credit union,” by not only using
explosive devices, but also by “let[ting] everybody see what
he was going to do, because he was going to put DVD’s
across our property to let everybody watch.” . . . When the
Petitioner threatened to use explosive devices in a parking lot
located within a municipality, he intended his actions to
“[i]ntimidate or coerce” more than just the employees of the
credit union. . . . The Petitioner was unequivocal in his desire
to seek retribution for what he viewed was the credit union’s
violation of his First Amendment right to freely speak about
circumcision. This type of threat to use explosives in a city in
this manner is precisely the type of conduct that anti-terrorism
statutes were designed to target. See Yocum, 233 W. Va. at
446, 759 S.E.2d at 189 (quoting Morales, 958 N.Y.S.2d 660,
982 N.E.2d at 585 (footnote omitted)) (“The federal
antiterrorism statutes were designed to criminalize acts such
as ‘the detonation of bombs in a metropolitan area’ or ‘the
deliberate assassination of persons to strike fear into others to
deter them from exercising their rights’ . . .”). Accordingly,
we affirm the circuit court’s determination that sufficient
evidence existed to support a conviction.

233 W. Va. at 671-72, 760 S.E.2d at 485-86.

The evidence presented in the instant case is similarly sufficient to support

the jury’s conclusion that Mr. Back threatened an act that was intended to intimidate or

coerce the civilian population. He threatened to execute an “active shooter” scenario,

such as those he saw on the news and in terrorist themed movies. The term “active

shooter” tends to invoke images of a mass shooting.10 Indeed, Mr. Back expressed his

threat in the plural form by stating his desire to “kill people.” Moreover, his expressed

purpose for killing people was to gain notoriety. In other words, Mr. Back threatened to

stage a shooting likely to kill a sufficient number of people to warrant media attention

and thereby intimidate and coerce the general civilian population into giving him the

attention he desired. We would be hard pressed to conclude that such a threat does not

fall within the type of conduct the Legislature desired to avert when it enacted W. Va.

Code § 61-6-24(b). See State v. Yocum, 233 W. Va. at 445, 759 S.E.2d at 188

(recognizing “the dual aim of our anti-terrorism statute: to thwart and/or punish future

instances of qualifying acts of terrorism”).

Finally, we summarily reject Mr. Back’s unsupported argument that his

threats should not be considered threats to commit a terrorist act because they were never

communicated to the persons being threatened. There is nothing in W. Va. Code § 61-6-

24(b) requiring that a terrorist threat be expressed to the subject of the threat.

Based upon the forgoing analysis, we conclude that the evidence was

sufficient to support Mr. Back’s conviction for violating W. Va. Code § 61-6-24(b).

10
See supra note 7 for a definition of the term “active shooter.”

Accordingly, we find that the circuit court did not err in denying Mr. Back’s post-trial

motions seeking a judgment of acquittal or, in the alternative, a new trial.

IV.

CONCLUSION

For the reasons explained in the body of this opinion, we affirm the April

20, 2017, order of the Circuit Court of Pocahontas County sentencing Mr. Back to a term

of incarceration of one to three years for his conviction of one felony count of threatening

to commit a terrorist act in violation of W. Va. Code § 61-6-24(b).

Affirmed.