SER Scott R. Smith, Prosecuting Attorney v. Hon. David J. Sims, Judge, 235 W. Va. 124

Background

12-year-old J.Y. brought a loaded .25-caliber semi-automatic pistol and extra magazines to his middle school; the gun was found in his backpack after the principal was alerted that J.Y. had shown ammunition the prior evening. J.Y. told police he brought the gun to “scare” a girl who had been bullying him and also made statements suggesting emotional distress.
Forensic evaluation found J.Y. incompetent to stand trial (Full Scale IQ ~70; functioning near third-grade level) and not substantially likely to attain competency in the foreseeable future.
The juvenile petition charged J.Y. with possession of a deadly weapon on school premises in violation of W. Va. Code § 61-7-11a(b)(1).
The circuit court dismissed the petition under W. Va. Code § 27-6A-3(g), reasoning the offense did not “involve an act of violence against a person” because J.Y. never brandished the gun or expressly threatened anyone.
The State sought a writ of prohibition from the Supreme Court of Appeals of West Virginia to vacate the dismissal and require continuation of proceedings under § 27-6A-3(h) (which applies where the charged offense involves an act of violence).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether possession of a gun at school with intent to intimidate "involves an act of violence against a person" under W. Va. Code § 27-6A-3	State: J.Y.’s conduct and admitted intent created a concrete risk of physical and severe emotional/psychological harm to students, so the offense involves an act of violence	J.Y.: No visible victim, no use or threatened use of force, and no element of violence in the offense; thus § 27-6A-3(g) dismissal proper	Court held: possession of a deadly weapon on school premises with express intent to intimidate does involve an act of violence against a person; dismissal vacated
Whether the circuit court exceeded its jurisdiction by dismissing the petition for incompetency reasons	State: Dismissal improperly ignored risk-based statutory purpose and George K. precedent; court abused power	J.Y.: Circuit court followed literal approach and dismissed under statutory subsection for non-violent offenses	Court held: circuit court abused its power by misapplying the statute; prohibition granted
Proper interpretive approach to "act of violence against a person" under § 27-6A-3	State: adopt risk-of-harm/legislative-protection purpose approach from George K.	J.Y.: favors narrower, use/threat-focused definition	Court held: follows George K.; inquiry is prospective — whether the charged conduct indicates risk of future physical, emotional, or psychological harm
Remedy and post-determination obligations when offense involves an act of violence	State: court should retain jurisdiction under § 27-6A-3(h) and ensure treatment and reviews	J.Y.: dismissal was final and appropriate	Court held: under § 27-6A-3(h) court retains jurisdiction, must commit to least-restrictive facility, order dangerousness evaluations, and review annually; but process is protective, not punitive

Key Cases Cited

State v. George K., 233 W.Va. 698, 760 S.E.2d 512 (W. Va. 2014) (defines "act of violence against a person" to include conduct that indicates risk of physical, emotional, or psychological harm and instructs prospective, public-protection analysis)
State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (W. Va. 1992) (state may seek writ of prohibition in criminal cases under limited circumstances)
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (W. Va. 1995) (appellate standard: de novo review for legal rulings and statutory interpretation)
State v. Smith, 198 W.Va. 702, 482 S.E.2d 687 (W. Va. 1996) (statute § 27-6A-3 interpreted to treat mental illness and protect society rather than to punish)
Caperton v. A.T. Massey Coal Co., Inc., 225 W.Va. 128, 690 S.E.2d 322 (W. Va. 2009) (judicial decisions generally apply retroactively to parties in pending cases)