State of West Virginia v. Harry Lee Smith, Jr., 844 S.E.2d 711

On December 4, 2017, Harry Lee Smith, Jr. broke into his former girlfriend A.R.’s home, held adult daughter D.R.-1 at gunpoint, forced residents to surrender phones, and threatened to kill them.
Smith reentered after A.R. locked the door, forced D.R.-2 (who has cerebral palsy) to get dressed, dragged A.R., repeatedly pointed a gun and threatened to kill A.R. and D.R.-2, then walked toward D.R.-2’s father’s house; D.R.-2 escaped and police soon arrived.
At police arrival Smith used A.R. as a human shield but ultimately surrendered; he was indicted and convicted on two kidnapping counts (alleging restraint with intent to terrorize), three counts of wanton endangerment, and one count of breaking and entering.
The court’s majority vacated the kidnapping convictions; Chief Justice Armstead concurred in affirming the other convictions but dissented from vacating the kidnapping convictions.
The dispositive legal question is the construction of W. Va. Code § 61-2-14a(a)(2): whether the phrase "to transport another person" is an essential element for kidnapping when the alternative culpable purpose is "to terrorize."
Armstead’s separate opinion argues the statute—consistent with the Model Penal Code and West Virginia precedent—criminalizes unlawful restraint with intent to terrorize even without transportation; he also notes the circuit court erred by assigning mitigating-factor determination to the jury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether unlawful restraint without transportation, with intent to terrorize, satisfies kidnapping under § 61-2-14a(a)(2)	State: Kidnapping may be charged for restraint with intent to terrorize; indictment tracked statute	Smith: "To transport" is an essential element; mere restraint is insufficient	Majority vacated kidnapping convictions for lack of required element; Armstead dissents, would affirm, holding restraint w/o transport suffices
Whether the circuit court erred by assigning mitigating-factor determination to the jury	State: (trial procedure challenged)	Defense: Circuit court improperly assigned mitigation decision to jury	Court (Armstead) acknowledges error and cites State v. Scruggs for the correct approach

Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985) (discusses historical expansion of kidnapping statutes and that transport was not always required)
Scruggs, 242 W. Va. 499, 836 S.E.2d 466 (2019) (procedural rule that circuit court should not delegate mitigation-factor determination to the jury)