IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
_______________
FILED
No. 19-0143 June 16, 2020
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
HARRY LEE SMITH, Jr.,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Mercer County
The Honorable William J. Sadler, Judge
No. 18-F-172
AFFIRMED IN PART AND VACATED IN PART
____________________________________________________________
Submitted: April 21, 2020
Filed: June 16, 2020
Derrick W. Lefler, Esq. Patrick Morrissey, Esq.
Princeton, West Virginia Attorney General
Counsel for Petitioner Scott E. Johnson, Esq.
Gordon L. Mowen, II, Esq.
Assistant Attorneys General
Counsel for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
CHIEF JUSTICE ARMSTEAD and JUSTICE JENKINS concur in part and dissent in
part and reserve their rights to file separate opinions.
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 2, State v.
Palmer, 210 W. Va. 372, 557 S.E.2d 779 (2001).
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.” Syllabus Point. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
3. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951).
i
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
1
Petitioner allegedly broke into the home of his former girlfriend, A.R., armed with
a gun. He then allegedly chased A.R.’s daughter, D.R.-1 from the house and into the yard
as she ran to get help from the neighboring house where her father lived. It was alleged
that Petitioner then reentered the home where he dragged A.R. by her arm and hair through
the house, before forcing A.R. and her son, D.R.-2, out of the home toward the house next
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
door. According to testimony offered at trial, Petitioner then held A.R. in front of him as
a shield during negotiations with law enforcement. It was alleged that, ultimately,
Petitioner relinquished his gun after officers agreed to let him speak with A.R. for a few
minutes before arresting him. “Consistent with our practice in cases involving sensitive
matters, we use the victim’s initials.” State v. Edward Charles L., 183 W. Va. 641, 645,
398 S.E.2d 123, 127 (1990).
2
The relevant part of that statute states:
(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:
. . . (2) To transport another person with the intent to inflict
bodily injury or to terrorize the victim or another person . . . (3)
. . . is guilty of a felony and upon conviction, shall be punished
by confinement by the Division of Corrections for life, and
2
“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)],
notwithstanding the provisions of article twelve [§§ 62-12-1 et
seq.], chapter sixty-two of this code, is not eligible for parole.
3
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.
The circuit court entered an order on September 18, 2018, memorializing its ruling
3
denying Petitioner’s motion to dismiss the kidnapping counts.
4
With regard to the kidnapping charges, the circuit court instructed the jury that
“kidnapping occurs when a person unlawfully takes custody of, conceals, confines, or
restrains another person against his or her will, by means of force, threat of force or duress,
with the intent to terrorize the victim.”
5
Petitioner filed a memorandum of law in support of that motion on January 4,
2019.
4
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:
6
Syl. Pt. 2, State v. Palmer, 210 W. Va. 372, 557 S.E.2d 779 (2001).
7
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
8
Petitioner raises an additional seven assignments of error on appeal, certain of
which are plainly related to the kidnapping charge and are therefore mooted by our
resolution. The vacation of Petitioner’s kidnapping convictions moots the substance of
Petitioner’s second, third, seventh, and eighth assignments of error. It also moots the
substance of his fourth assignment of error (“The Trial Court Erred in Deying Appellant’s
Motion in Limine Regarding Evidence of the Post Event Impact of [D.R.-1]”). In his brief,
Petitioner states that D.R.-1’s challenged testimony was irrelevant to the charge of wanton
endangerment (the only crime with which Petitioner was charged related to D.R.-1), but
that it “materially affected the jury’s consideration of mercy for [Petitioner] upon the
kidnapping charges on which [Petitioner] was convicted.” With Petitioner’s kidnapping
convictions vacated, any effect that D.R.-1’s testimony may have had upon the jury’s
consideration of mercy is irrelevant, mooting this assignment of error.
5
(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
Further, at oral argument, petitioner seemingly abandoned his request for a new trial
on the wanton endangerment and breaking and entering charges, notwithstanding his
appeal of certain evidentiary issues pertaining to those charges. Regardless of that apparent
concession, we find no error and therefore affirm those convictions. In his fifth and sixth
assignments of error, Petitioner contends that the circuit court violated West Virignia Rule
of Evidence 404(b) and the procedure set forth in Syllabus Point 2 of State v. McGinnis,
193 W. Va. 147, 455 S.E.2d 516 (1994), when it permitted the State to introduce testimony
regarding Petitioner’s relationship with A.R. in the months preceding December 4, 2017.
While Petitioner couches his argument in terms of Rule 404(b), we see no abuse of
discretion in the circuit court’s conclusion that the testimony was “res gestae,” that is,
intrinsic to the crimes charged in the indictment and so outside the restrictions imposed by
Rule 404(b). See State v. McKinley, 234 W. Va. 143, 155, 764 S.E.2d 303, 315 (2014)
(“Our cases have consistently held that evidence which is ‘intrinsic’ to the indicted charge
is not governed by Rule 404(b).”) (internal quotation omitted). In the facts and
circumstances of this case, testimony regarding Petitioner and A.R.’s relationship in the
few months preceding December 2017 placed Petitioner’s alleged crimes in the context of
the couple’s stormy relationship and Petitioner’s similarly difficult relationship with A.R.’s
children. See id. at 156, 764 S.E.2d at 316 (finding that evidence of two domestic violence
incidents that occurred one and two months before victim’s death was intrinsic evidence
“necessary to place Ms. Patton’s death in context with her relationship with Mr. McKinley,
and to complete the story of the violence Mr. McKinley inflicted on her”). Therefore, Rule
404(b) would not apply to the disputed testimony and Petitioner is not entitled to relief on
this assignment of error.
Morever, even if the circuit court had abused its discretion in admitting the disputed
testimony, we would find that error to be harmless. Removing the testimony regarding
Petitioner’s volatile relationship with A.R. (i.e., the car chases, the alleged acts of
vandalism, and the threatening phone call) from the case, we find that the State still
presented more than sufficient evidence to permit the jury to convict Petitioner on the three
charges of wanton endangerment and one charge of breaking and entering and that the
disputed testimony had no prejudicial effect upon the jury.
6
(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,”
9
The crime of wanton endangerment involving a firearm carries a maximum term
of incarceration of up to five years. W. Va. Code § 61-7-12 (1994) (“Any person who
wantonly performs any act with a firearm which creates a substantial risk of death or
serious bodily injury to another shall be guilty of a felony, and, upon conviction thereof,
shall be confined in the penitentiary for a definite term of years of not less than one year
nor more than five years, or, in the discretion of the court, confined in the county jail for
not more than one year, or fined not less than $250 nor more than $2,500, or both.”).
10
The crime of kidnapping, § 61-2-14a, carries up to a life sentence. W. Va. Code
§ 61-2-14a(a)(3).
7
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
11
See Syl. Pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d
676 (1999) (“A cardinal rule of statutory construction is that significance and effect must,
if possible, be given to every section, clause, word or part of the statute.”).
8
“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 interpretation.’” 13 “A statutory
provision which is clear and unambiguous and plainly expresses the legislative intent will
not be interpreted by the courts but will be given full force and effect.” 14
We recently determined in State v. Woodrum that an earlier, and nearly
identical, version of § 61-2-14a(a)(2) is plain and unambiguous, meaning that a reader does
not have resort to the rules of interpretation to ascertain the Legislature’s intent for that
statute. 15 We see no reason why that determination does not also apply to the more recent
version of § 61-2-14a(a)(2) at issue in this case. 16 Because § 61-2-14a(a)(2) is plain and
12
Syllabus Point 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219
S.E.2d 361 (1975).
13
Syl. Pt. 2, Tribeca Lending Corp. v. McCormick, 231 W. Va. 455, 460, 745 S.E.2d
493, 498 (2013)) (quoting Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108
(1968)). For example, the Court may not resort to consideration of statutes relating to the
same subject matter to ascertain the intent of the Legislature if the plain language of the
statute under review already makes that intent clear. See State v. Epperly, 135 W. Va. 877,
881, 65 S.E.2d 488, 491 (1951) (“Statutes relating to the same subject matter may not be
resorted to in order to determine the intent of the legislature in enacting a statute if the
statute is clear and unambiguous.”) (internal quotation omitted).
14
Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
15
No. 18-1043 (W. Va. May 29, 2020) (hereinafter Woodrum).
16
Before 2017, subsection (a) stated simply: “Any person who unlawfully restrains
another person with the intent: . . . .” The parties do not argue that the 2017 amendment to
§ 61-2-14a(a) affects the application of the statute to Petitioner’s case.
9
unambiguous, we apply it to Counts 1 and 2 of the indictment to determine whether they
include the essential elements of the kidnapping offense described in that subsection. As
in Woodrum, the plain language of the statute leaves us no choice but to find that they do
not.
Petitioner and the State make arguments that are nearly identical to those
offered by the parties in Woodrum. And, we resolve those arguments as we did in in that
very recent case. First, we agree with Petitioner that the parallel language in
§ 61-2-14a(a)(1), (2), and (3) is meaningful. As we explained in Woodrum, the Legislature
used parallel language in those subsections,
which, of course, calls for a parallel construction. Subsections
(a)(1) (“To hold . . .”) and (a)(3) (“To use . . .”) create one form
of kidnapping, each. The Legislature drafted (a)(2) similarly,
beginning that subsection with “To transport . . . .” That
parallel language communicates the Legislature’s intent
clearly: subsections (a)(1), (2), and (3) are to be read similarly.
Indisputably, subsections (a)(1) and (a)(3) describe a single
form of the offense of kidnapping. Logically, then, subsection
(a)(2) does as well.[17]
There is no analysis in the State’s brief that leads us to a different conclusion. So, the
Legislature’s choice to employ parallel construction in (a)(1), (2), (3) demonstrates its
intention that § 61-2-14a(a)(2) create a single kidnapping offense.
The State’s remaining arguments find no traction, just as the identical
arguments found none in Woodrum. The State contends that “or” between “to inflict bodily
17
Woodrum at 11–12 (internal quotations and notes omitted).
10
injury” and “to terrorize the victim or another person” creates two, distinct kidnapping
offenses in § 61-2-14a(a)(2). We disagree. Generally, “or” is disjunctive, 18 but in the
context of § 61-2-14a(a)(2), the word signals a choice between two intents: the intent to
inflict bodily harm and the intent to terrorize the victim or another. Again, as we explained
in Woodrum, “or” in § 61-2-14a(a)(2)
connects two adjectival, infinitive phrases: “to inflict bodily
injury” and “to terrorize the victim or another person . . . .”
Those are adjectives that must describe a noun.
In § 61-2-14a(a)(2), that noun is “the intent” immediately
preceding the two, alternative adjectives (“to inflict” and “to
terrorize”). So, in subsection (a)(2), “or” does not signify two,
alternative crimes, as the State and circuit court conclude. It
signifies that one may commit the single offense of kidnapping
found in § 61-2-14a(a)(2) by acting with one of two
alternative—but coequal—intents: “the intent [noun] to inflict
bodily injury [adjective describing immediately preceding
noun] or to terrorize the victim or another person [adjective
describing immediately preceding noun].”[19]
As in Woodrum, we find in this case that “to inflict bodily injury” and “to
terrorize the victim or another person” are coequal, alternative intents necessary to commit
the single kidnapping offense described in West Virginia Code § 61-2-14a(a)(2). Counts
1 and 2 of Petitioner’s indictment essentially “splice[] that subsection into two, separate
18
See Albrecht v. State, 173 W. Va. 268, 271, 314 S.E.2d 859, 862 (1984) (“We
have traditionally held that where the disjunctive ‘or’ is used, it ordinarily connotes an
alternative between the two clauses it connects.”).
19
Woodrum at 13 (emphasis in original) (internal notes omitted). For the same
reason, we reject the State’s argument that Petitioner’s view of the of the statute renders
the “to” preceding “terrorize” superfluous.
11
kidnapping crimes,” 20 which is an error that resulted in the omission of an essential element
of the crime of kidnapping, § 61-2-14a(a)(2), from those counts of the indictment. That
omission renders those counts of the indictment insufficient under Article III, § 14 of the
West Virginia Constitution 21 and West Virginia Rule of Criminal Procedure 7(c)(1). 22
“[T]he right of the Legislature to create and define crimes and to regulate
their prosecution is extremely broad[.]” 23 The Legislature exercised that right when it
essentially rewrote § 61-2-14a in 2012 24 to modernize what was an outdated and unwieldy
20
Id. at 15.
21
W. Va. Const. art. III, § 14 (“In all such trials, the accused shall be fully and
plainly informed of the character and cause of the accusation, and be confronted with the
witnesses against him, and shall have the assistance of counsel, and a reasonable time to
prepare for his defence; and there shall be awarded to him compulsory process for
obtaining witnesses in his favor”)
22
W. Va. R. Civ. P. 7(c)(1) (“The indictment or the information shall be a plain,
concise and definite written statement of the essential facts constituting the offense
charged.”).
23
Syl. Pt. 4, in part, State ex rel. Cogar v. Kidd, 160 W. Va. 371, 234 S.E.2d 899
(1977).
24
Compare W. Va. Code § 61-2-14a(a) (1999) (“(a) Any person who, by force,
threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away,
or transport into or out of this state or within this state, or otherwise kidnap any other
person, or hold hostage any other person for the purpose or with the intent of taking,
receiving, demanding or extorting from such person, or from any other person or persons,
any ransom, money or other thing, or any concession or advantage of any sort, or for the
purpose or with the intent of shielding or protecting himself, herself or others from bodily
harm or of evading capture or arrest after he or she or they have committed a crime shall
be 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, shall not be eligible for parole . . . .”) with § 61-2-14a (2012) (“(a) Any
person who unlawfully restrains another person with the intent: (1) To hold another person
for ransom, reward, or concession; (2) To transport another person with the intent to inflict
12
bodily injury or to terrorize the victim or another person; or (3) To use another person as a
shield or hostage, shall be 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, shall not be eligible for parole.”).
We note that the current version § 61-2-14a includes a phrase similar to one found
in Section 212.1, Kidnapping, of the Model Penal Code: “to inflict bodily injury on or to
terrorize the victim or another.” However, the differences between Model Penal Code
Section 212.1, Kidnapping, and § 61-2-14a surpass any similarities. Section 212.1 of the
Model Penal Code says, in pertinent part:
A person is guilty of kidnapping if he unlawfully
removes another from his place of residence or business, or a
substantial distance from the vicinity where he is found, or if
he unlawfully confines another for a substantial period in a
place of isolation, with any of the following purposes:
(a) to hold for ransom or reward, or as a shield or
hostage; or
(b) to facilitate commission of any felony or flight
thereafter; or
(c) to inflict bodily injury on or to terrorize the victim
or another; or
(d) to interfere with the performance of any
governmental or political function.
Even if we needed to divine the Legislature’s intent behind
§ 61-2-14a(a)(2)—and we do not because the language of § 61-2-14a(a)(2) is plain and
unambiguous—we would not look to § 212.1 of the Model Penal Code for help. When it
amended § 61-2-14a in 2012, the Legislature obviously knew of § 212.1 of the Model Penal
Code because it borrowed portions of a phrase from the model statute. But, the Legislature
chose not to adopt the remainder of § 212.1 or to conform amended § 61-2-14a to the model
code, otherwise. “Legislation that is different from that common in other states, but on the
same subject [e.g., the Model Penal Code], typically manifests a legislative purpose to
accomplish legal results different from those in other states.” 2B N. SINGER & S. SINGER,
SUTHERLAND STATUTES & STATUTORY CONSTRUCTION § 51:6 (7th ed. 2007). The fact
that the current § 61-2-14a is substantially different from § 212.1 of the Model Penal Code
13
general kidnapping statute. 25 Those amendments created the current version of
§ 61-2-14a—the statute that we must apply in this case and that we must presume says
what Legislature meant it to say. 26 Perhaps this Court could have upheld Petitioner’s
kidnapping convictions and sentences under the old general kidnapping statute, as we did
in similar in factual circumstances in State v. Lewis. 27 But, in its current form,
§ 61-2-14a(a)(2) does not define kidnapping as charged in Counts 1 and 2 of the indictment
against Petitioner. Instead, it criminalizes the unlawful restraint of another by force with
manifests the Legislature’s intent that § 61-2-14a should accomplish a different legal result
from that accomplished by the model statute.
Finally, one author observed in 2009 that “[a] majority of states derive at least one
of their kidnapping statutes from the Model Penal Code section 212.1,” Kidnapping.
Melanie A. Prince, Two Crimes for the Price of One: The Problem with Kidnapping
Statutes in Tennessee and Beyond, 76 TENN. L. REV. 789, 806 (2009). Of course, West
Virginia did not modernize its kidnapping statute until three years after that statement was
published, so it cannot stand for the proposition that West Virginia’s current kidnapping
statute is also derived from the Model Penal Code.
25
See Syl. Pt. 2, in part, State v. Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985)
(“In interpreting and applying a generally worded kidnapping statute, such as W.Va.Code,
61–2–14a, in a situation where another offense was committed, some reasonable
limitations on the broad scope of kidnapping must be developed.”).
26
Martin v. Randolph Co. Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 414
(1995).
27
238 W. Va. 627, 638, 797 S.E.2d 604, 615 (2017) (holding that under pre-
amendment version of § 61-2-14a, evidence was sufficient to affirm defendant’s
kidnapping conviction and sentence where he detained his former wife in her apartment
against her will, stabbed her, and then denied her medical treatment). See also State v.
Davis, No. 11-1775, 2013 WL 1501435, at *3 (W. Va. Apr. 12, 2013) (holding that under
the pre-amendment version of § 61-2-14a, evidence was sufficient to affirm defendant’s
kidnapping conviction where he attacked victim in her home and then detained her by
force).
14
the intent to transport another person with the intent to inflict bodily injury or to terrorize
the victim or another person. That is the crime defined by the Legislature in
§ 61-2-14a(a)(2) and that is the statute by which we must judge Counts 1 and 2 of the
indictment in this case.
“‘This Court does not sit as a superlegislature, commissioned to pass upon
the political, social, economic or scientific merits of statutes pertaining to proper subjects
of legislation.’” 28 This precept of judicial restraint has obligated us to make some tough
decisions in criminal cases. For example, in State v. Dubuque, the defendant was convicted
of five separate violations of the recently-amended West Virginia Code § 61-8C-3 (2014)
stemming from his possession of material visually depicting a minor engaged in sexually
explicit conduct. Those five convictions resulted in five, separate sentences that imposed
a total period of incarceration of twenty-five to seventy-five years. 29
On appeal, a unanimous Court found that the plain language of amended
§ 61-8C-3 demanded the “aggregation of the images and videos possessed by a person in
28
Syl. Pt. 3, in part, State v. Dubuque, 239 W. Va. 660, 805 S.E.2d 421 (2017)
(quoting Syllabus Point 2, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323
(2009)). See also State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars,
144 W. Va. 137, 145, 107 S.E.2d 353, 358 (1959) (“It is not the province of the courts to
make or supervise legislation, and a statute may not, under the guise of interpretation, be
modified, revised, amended, distorted, remodeled, or rewritten, or given a construction of
which its words are not susceptible, or which is repugnant to its terms which may not be
disregarded.”).
29
Dubuque, 239 W. Va. at 662–64, 805 S.E.2d at 422–45.
15
order to determine the proper punishment[.]” 30 Applying that statutory language, we had
to conclude that the circuit court erred when it sentenced the defendant for “multiple
violations of [the statute] based on his possession of five individual VHS tapes,” when,
under “the [statute’s] plain language . . ., [the defendant’s] possession of five VHS tapes
subject[ed] him to one violation of W.Va. Code § 61-8C-3(d).” 31 Application of the plain
and unambiguous language of that statute dictated reversal of the sentencing order and
remand for further proceedings. The plain language of the statute barred any other
outcome. Similarly, the plain language of § 61-2-14a(a)(2) mandates the disposition in this
case: reversal of Petitioner’s kidnapping convictions and sentences.
We feel deeply for the victims in this case. We know that the events of
December 7, 2014 will leave lasting scars. Our heartfelt sympathy for them, however, does
not relieve us of “‘the task of interpreting the Constitution and the laws of this State as they
exist.’” 32 “Although a court might profoundly disagree with a particular statute or may
even prefer another outcome, the judiciary is prohibited from substituting its judgment for
that of the legislative branch, an action tantamount to improperly assuming the role of
30
Id. at 666, 805 S.E.2d at 427.
31
Id. at 669, 805 S.E.2d at 430.
32
W. Va. Bd. of Educ. v. Bd. of Educ. of the Cty. of Nicholas, 239 W. Va. 705, 721,
806 S.E.2d 136, 152 (2017) (quoting Meadows on Behalf of Prof’l Emps. of W. Va. Educ.
Ass’n v. Hey, 184 W.Va. 75, 77, 399 S.E.2d 657, 659 (1990)).
16
legislators.” 33 We must not violate that prohibition in order to reach a particular result in
a particular case.
In Dubuque, we invited the Legislature “to provide explicit direction defining
the precise unit of prosecution in W.Va. Code § 61-8C-3 and . . . if it deem[ed] proper,
permit separate violations of the statute based on each individual media storage device.” 34
We invite the Legislature to consider whether West Virginia Code § 61-2-14a(a)(2) says
what the Legislature would have it say, and if it does not, to amend it. Until the Legislature
does that, we must continue to apply the statute’s plain language, rather than “attempt to
make it conform to some presumed intention of the Legislature not expressed in the
statutory language.” 35
IV. CONCLUSION
For the reasons stated above, we affirm the circuit court’s order of January
24, 2019 as to Petitioner’s convictions and sentences on Counts 3, 4, 5, and 6 of the
indictment. We vacate that part of the circuit court’s January 24, 2019 order as to
Petitioner’s convictions and sentences on Counts 1 (Kidnapping) and 2 (Kidnapping).
Affirmed, in part, Vacated, in part.
33
State ex rel. Biafore v. Tomblin, 236 W. Va. 528, 537, 782 S.E.2d 223, 232 (2016).
34
Dubuque, 239 W. Va. at 668, 805 S.E.2d at 429. The Legislature has yet to do
so.
35
Cart v. Gen. Elec. Co., 203 W. Va. 59, 63 n.8, 506 S.E.2d 96, 100 n.8 (1998).
17