FILED
June 9, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 21-0806 – State of West Virginia v. Henry Jo Ward SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Justice Hutchison, concurring, in part, and dissenting, in part, joined by Justice Wooton:
I concur with the majority opinion’s conclusion that the State overcharged
petitioner Henry Jo Ward and, in so doing, committed several double jeopardy violations.
By piling on the charges, the State created a Russian nesting doll of charges that all relied
upon the same evidence and the same act. Brandishing a firearm is a lesser included
offense of wanton endangerment with a firearm, and wanton engagement with a firearm is
a lesser offense of malicious assault on a law enforcement officer. The State could only
obtain a conviction for one of these offenses, not all three simultaneously for the same act
with the same proof. On this point, I concur.
I dissent, however, to the majority opinion’s assessment regarding
petitioner’s conviction for malicious wounding of a law-enforcement officer. Foremost in
my concerns is the evidence of whether Deputy Coty Pierson was “acting in his or her
official capacity” as a law enforcement officer when petitioner attempted to harm him. The
statute establishing the crime of malicious assault on a law enforcement officer requires,
twice, proof a victim is acting in his or her capacity as a law enforcement officer when they
are assaulted. Overall, the statute (West Virginia Code § 61-2-10b(b) (2017))1 requires
proof a defendant committed the following five acts:
1
The statute provides, in full:
1
1. Shooting, stabbing, cutting, wounding, or by any means
causing bodily injury;
2. to a “law-enforcement officer acting in his or her
official capacity;”
3. with malice;
4. with intent to maim, disfigure, disable, or kill; and
5. knowing or having reason to know “that the victim is
acting in his or her official capacity[.]”
Notice that the statute does not say proof the victim is a law-enforcement officer is enough;
it says the victim has to be a law-enforcement officer AND “acting in his or her official
capacity” at the time the shooting, stabbing, cutting, wounding, or other bodily injury is
committed. And it says that twice: the officer has to be acting in an official capacity, and
the defendant has to know or have reason to know the officer is acting in an official
capacity. Most importantly, the State must affirmatively prove these two facts; they cannot
be presumed or ignored.
The evidence to prove petitioner committed malicious assault on a law
enforcement officer in violation of West Virginia Code § 61-2-10b(b) was woefully lacking
(b) Malicious assault. -- Any person who maliciously shoots,
stabs, cuts or wounds or by any means causes bodily injury
with intent to maim, disfigure, disable or kill a government
representative, health care worker, utility worker, emergency
service personnel, correctional employee or law-enforcement
officer acting in his or her official capacity, and the person
committing the malicious assault knows or has reason to know
that the victim is acting in his or her official capacity is guilty
of a felony and, upon conviction thereof, shall be confined in a
correctional facility for not less than three nor more than fifteen
years.
2
in this case. The evidence at trial showed that Jeffrey Barnhouse’s trail camera got stolen,
and Barnhouse called his cousin, Deputy Pierson. The deputy and Barnhouse suspected
petitioner and marched off to accost petitioner at petitioner’s trailer. Deputy Pierson was
not in uniform, he did not have a badge or a gun or handcuffs, and he did not have a radio.
He was off duty, maybe for as long as six weeks. When petitioner saw Deputy Pierson, he
turned to walk back into his trailer, whereupon the deputy tackled him and pinned him to
the ground.2 After petitioner promised to “chill out,” the deputy allowed petitioner to stand
up and go to his truck for a cigarette. In those moments, petitioner pulled out a pistol.
Deputy Pierson tackled petitioner again, the gun discharged, and petitioner was
subsequently charged with malicious assault on a law-enforcement officer.
Three of the elements the prosecution was required to establish beyond a
reasonable doubt were that Deputy Pierson (1) was a law-enforcement officer; (2) that he
was “acting in his . . . official capacity;” and (3) that petitioner knew Deputy Pierson was
“acting in his . . . official capacity.” Petitioner’s counsel attempted to ask questions at trial
about Deputy Pierson’s work status at the time of the crime, but the circuit court intervened
and refused to allow any questions. Essentially, the circuit court presumed that Deputy
Pierson was an active law-enforcement officer at the time of the crime and prevented
petitioner’s counsel from challenging that presumption.
2
In most contexts, a man in civilian clothes tackling another person, pinning
them to the ground, and refusing to allow the person into their home, would qualify as
some form of assault, battery, and/or kidnapping.
3
Problematically, the majority opinion approves of the circuit court’s
presumption, and it cites authority for the proposition that an off-duty municipal police
officer is “under a duty to act in their lawful and official capacity twenty-four hours a day.”
Syl. pt. 5, in part, State v. Phillips, 205 W. Va. 673, 520 S.E.2d 670 (1999). The majority
opinion then presumes that Deputy Pierson was acting in his official capacity investigating
a theft, and it gives its blessing to the circuit court’s presumption of the same.
In the context of a criminal trial, it is a fundamental, constitutional rule of
due process that a jury cannot be instructed to presume the existence of a critical fact. The
State is required to carry the burden of proving, beyond a reasonable doubt, every material
element of the crime with which a defendant is charged. As we once said,
In a criminal prosecution, the State is required to prove
beyond a reasonable doubt every material element of the crime
with which the defendant is charged, and it is error for the
court to instruct the jury in such a manner as to require it to
accept a presumption as proof beyond a reasonable doubt of
any material element of the crime with which the defendant is
charged or as requiring the defendant either to introduce
evidence to rebut the presumption or to carry the burden of
proving the contrary.
Syl. Pt. 4, State v. Pendry, 159 W. Va. 738, 227 S.E.2d 210 (1976) (emphasis added),
overruled on other grounds by Jones v. Warden, W. Va. Penitentiary, 161 W. Va. 168, 241
S.E.2d 914 (1978). Stated simply, the Due Process Clause of the Fourteenth Amendment
requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which [the accused] is charged,” and “[t]his bedrock, axiomatic and elementary
constitutional principle prohibits the State from using evidentiary presumptions in a jury
4
charge that have the effect of relieving the State of its burden of persuasion beyond a
reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U.S.
307, 313 (1985) (cleaned up). Hence, a jury cannot presume that a law-enforcement officer
was acting in an official capacity, or that a defendant knew or should have known the
officer was acting in an official capacity. Those facts must be established affirmatively by
the State using admissible evidence. Instead, both the circuit court and the majority opinion
improperly ignored the State’s burden of proof and allowed a critical element of proof to
be established by a presumption.
Moreover, as a factual matter, the record itself does not necessarily show the
deputy was acting as a law enforcement officer, but rather as one man helping his cousin
to retrieve personal property the cousin thought was stolen. In Syllabus Point 6 of Phillips,
we said that a municipal police officer is considered to be a police officer “unless it is clear
from the nature of the officer’s activities that he or she is acting in an exclusively private
capacity or engaging in his or her private business.” Id. at 676, 520 S.E.2d at 673. The
circuit court prohibited petitioner’s counsel from asking questions so that the jury could
fairly assess whether Deputy Pierson was acting in a private capacity or was following his
own business chasing his cousin’s trail camera. At a minimum, the jury should have been
given the guidance contained above in Syllabus Point 6 of Phillips so they could weigh
whether the officer was on official business.
I also question the majority opinion’s conclusion that a few scratches or
metal shavings on Deputy Pierson’s hand fit the same categories as a shooting, stabbing,
5
cutting, wounding, or other bodily injury. While a few scratches might fit the letter of the
statute as a bodily injury, it certainly doesn’t meet the spirit as the conduct did not maim,
disfigure, disable, or kill the officer. A malicious wounding statute is designed to punish
offenders who cause a serious wound, not a scratch or splinter that can be passed-off as a
“close call” or an “almost wound.” The majority opinion makes much hay of the fact that
Deputy Pierson went to a medical center and had x-rays taken of his hand. But the medical
professionals gave him no treatment, bandages, or other care aside from a recommendation
he brush them off and wash his hand. While normally I prefer to defer to the judgment and
wisdom of a jury, on this record I believe that an error has occurred. In part, I dissent
because of the paucity of evidence of an injury. I am also concerned because the State
overcharged petitioner with the Russian-doll flood of intertwined charges, charges that
reinforced the jury’s perception that petitioner was a “bad actor,” and which likely impelled
the jury toward a conviction regardless of how inconsequential the deputy’s injuries really
were.
In sum, I agree petitioner is entitled to be resentenced because of the
numerous violations of double jeopardy principles. However, I dissent because I do not
believe the State fairly established that petitioner committed the offense of malicious
wounding of a law-enforcement officer.
I am authorized to state that Justice Wooton joins in this separate opinion.
6