State of West Virginia, Plaintiff Below, Respondent v. Jeffrey Allen Hibbard, Defendant Below, Petitioner
No. 24-118 (Hardy County CC-16-2023-F-7)
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
June 24, 2026
FILED June 24, 2026 C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
Petitioner Jeffrey Allen Hibbard appeals the Circuit Court of Hardy County’s January 31, 2024, sentencing order, arguing that his conviction for kidnapping should be vacated because the governing statute is unconstitutionally vague and ambiguous; the evidence admitted at trial was insufficient to sustain a kidnapping conviction; his sentence was unconstitutionally disproportionate; and the court abused its discretion in ordering consecutive sentences on certain counts.1 Upon our review, finding no substantial question of law and no prejudicial error, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate. See
A Hardy County grand jury indicted the petitioner for kidnapping, strangulation, assault during the commission of a felony, malicious assault, two counts of first-degree sexual assault, and attempted murder. The petitioner’s jury trial began on August 30, 2023. The evidence at trial showed that the petitioner and his girlfriend, the victim, J.F., lived together in Moorefield, West Virginia, along with their three-year-old daughter. J.F. testified that the petitioner came home in the early hours of August 11, 2022, accused her of cheating, and began beating her while demanding the name of her paramour. The petitioner ripped her clothes off, choked her with towels, inserted his fingers into her vagina and anus, dragged her back inside the house after she ran away while naked, threw her to the floor, and urinated on her. After the petitioner stopped beating her, he sent J.F. upstairs to check on their daughter, ordering her not to let the child see her face. Later that morning, after the petitioner fell asleep on the couch, J.F. and her daughter escaped the house. J.F. admitted that she and the petitioner smoked methamphetamine and marijuana on August 11, 2022.
The petitioner testified that on August 11, 2022, he worked third shift at the local chicken plant from 11 p.m. to 7 a.m. Around 1:30 a.m., the petitioner walked home on his work break and woke J.F. so they could smoke methamphetamine together, as was their normal routine. The petitioner stated that he began to accuse J.F. of cheating on him, which escalated into an argument, and he “started hitting her. . . . and [he] was beating her up, and--and she was on the floor holding her hands on her face and [he] just kept smacking her, asking for the name. And this all lasted about an hour[.]” After he stopped hitting J.F., he got a bag of frozen food from the freezer to help with the bruising on her face; he and J.F. then smoked methamphetamine together until he passed out on the couch. When he woke up, J.F. was gone. The petitioner expressly denied dragging, strangling, or threatening to kill J.F.; he also denied urinating on her or sexually assaulting her. However, he acknowledged telling his mother during a recorded jail phone call that he had held J.F. against her will, but he insisted, to his mother and the jury, that he did not kidnap her.
At the close of the State’s evidence the petitioner moved for a judgment of acquittal on the charges of kidnapping, strangulation, and malicious assault. Relevant to this appeal, the petitioner argued that there was insufficient evidence for a conviction on kidnapping because J.F. was not bound by chains and appeared “free to leave the house.” The circuit court denied the petitioner’s motion.
The jury convicted the petitioner of kidnapping, with a recommendation of mercy; assault during the commission of a felony; malicious assault; and two counts of second-degree sexual assault (a lesser included offense of first-degree sexual assault). The jury found the petitioner not guilty of strangulation and attempted murder.
The circuit court imposed the statutorily prescribed term of incarceration for each of the petitioner’s convictions: life, with parole eligibility after ten years, for kidnapping;3 not less than two nor more than ten years for assault during the commission of a felony;4 not less than two nor more than ten years for malicious assault;5 and not less than ten nor more than twenty-five years for each conviction for second-degree sexual assault.6 The petitioner argued for concurrent
In the petitioner’s first assignment of error, he contends that the kidnapping statute is facially void for vagueness because it does not define “takes custody of,” “conceals,” “confines,” or “restrains” and because it contains no temporal requirement;7 accordingly, he maintains that his kidnapping conviction is invalid. Without definitions of the identified terms, he asserts, the terms “may be left to broad and vague interpretation of a finder of fact.” With respect to the statute’s claimed lack of any temporal requirement, the petitioner argues that “in theory,” a trier of fact could conclude that a kidnapping “may have occurred over a brief moment in time, or possible seconds.”
To begin, we observe that the petitioner failed to raise his vagueness challenge below. By failing to raise this argument below, the petitioner failed to preserve this issue for our review: “This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.” Syl. Pt. 2, Sands v. Sec. Tr. Co., 143 W. Va. 522, 102 S.E.2d 733 (1958). We have also stated, however, that “[a] constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case.” State v. Ward, 245 W. Va. 157, 162, 858 S.E.2d 207, 212 (2021) (citing Syl. Pt. 2, Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005)); see also State v. Wilfong, 247 W. Va. 515, 518, 881 S.E.2d 426, 429 (2022) (noting that void-for-vagueness challenges are rooted in the guarantees of due process afforded by the state and federal constitutions). Exercising our discretion to consider the petitioner’s constitutional argument, we nevertheless find that he is entitled to no relief.
“Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty or definiteness by construing the statute in light of the conduct to which it is applied.” Syl. Pt. 3, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974). The petitioner, though, makes no reference to his conduct—which includes his (admitted) holding J.F. against her will for longer than mere seconds. Rather, he identifies only theoretical applications of the statute and speculates as to what a trier of fact “may” do. But “a defendant cannot prevail in his void-due-to-vagueness constitutional challenge by raising hypothetical scenarios that illustrate a statute could prove difficult to apply.” Wilfong, 247 W. Va. at 520, 881 S.E.2d at 431. “Close cases can be imagined under virtually any statute. The problem
In his second assignment of error, the petitioner argues that the circuit court erred in ordering that most of his sentences run consecutively to one other. In the alternative, the petitioner argues that his sentences were unconstitutionally disproportionate. In support, he points to his “minimal criminal history” and expression of remorse.
“The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant’s sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). However, “[w]hile our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence.” Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). And “[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
Circuit courts are vested with discretion in determining whether to impose concurrent or consecutive sentences. See State v. Allen, 208 W. Va. 114, 155, 539 S.E.2d 87, 98 (1999) (“‘When a defendant has been convicted of two separate crimes, before sentence is pronounced for either, the trial court may, in its discretion, provide that the sentences run concurrently, and unless it does so provide, the sentences will run consecutively.’ Syllabus point 3, Keith v. Leverette, 163 W. Va. 98, 254 S.E.2d 700 (1979).“); see also
In his remaining assignment of error, the petitioner argues that the State did not present sufficient evidence at trial to sustain a kidnapping conviction. The petitioner asserts that the
“This Court applies a de novo standard of review to a circuit court’s denial of a motion for judgment of acquittal.” Syl. Pt. 5, State v. Thompson, ___ W. Va. ___, 927 S.E.2d 885 (2026). We have held:
The 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 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.
Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 1.
(a) Any person who unlawfully takes custody of, conceals, confines, transports, 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 to:
- (1) Hold another person for ransom, reward, or concession;
- (2) Inflict bodily injury;
- (3) Terrorize the victim or another person; or
- (4) Use another person as a shield or hostage, is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment by the Division of Corrections and Rehabilitation for life, and, notwithstanding the provisions of
§ 62-12-1 et seq. of this code, is not eligible for parole.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 24, 2026
CONCURRED IN BY:
Chief Justice C. Haley Bunn
Justice William R. Wooton
Justice Charles S. Trump IV
Justice H. L. Kirkpatrick
Justice James W. Flanigan