No. 19-0143
SUPREME COURT OF APPEALS OF WEST VIRGINIA
June 16, 2020
ARMSTEAD, C.J., concurring in part and
FILED June 16, 2020 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK
I concur with the majority‘s decision insofar as it upholds Mr. Smith‘s convictions for three counts of wanton endangerment and one count of
The definition of kidnapping in our state has clearly included either transportation or restraint with the intent to carry out certain harmful acts. The Legislature has modified the
The horrendous facts of this case clearly fit within the clear statutory definition of kidnapping.
D.R.-1 went to her father‘s home, which was located near her mother‘s home. Her father gave her his cell phone, and she hid in a сloset and used that cell phone to call 911.
Whilе the Petitioner was outside chasing D.R.-1, A.R. woke up her son, D.R.-2, and told him to call 911. In addition to waking up her son, A.R. also locked her front door, but the Petitioner kicked in the door and reentered the house. Once he was back inside the home, the Petitioner told D.R.-2, who suffered from cerebral palsy, to get dressed because they were going to D.R.-2‘s father‘s house. The Petitioner pointed his gun at D.R.-2 and dragged A.R. thrоugh the house by her arm and hair. Once the Petitioner, A.R. and D.R.-2 made it to the front porch, the Petitioner pointed the gun between A.R. and D.R.-2 and threatened to kill them thirty or forty times.
Thereafter, the Petitioner, A.R., аnd D.R.-2 walked to D.R.-2‘s father‘s house, and at that time, D.R.-2 convinced the Petitioner to let him go so that he could gain entry into his father‘s house and get his father. When the police arrived minutes later, the Petitionеr and A.R. were on the back porch, and the Petitioner had the gun pointed toward A.R.‘s head. As one officer approached, the Petitioner used A.R. as a shield between himself and the officer. Another officer who was familiar with the Petitioner arrived later, and he began to speak to the Petitioner. That officer, Sergeant Rose, was unable to shoot the Petitioner because he was too far way and was holding A.R. too closely. However, the Petitioner eventually surrendered his gun to Sergeant Rose and was permitted to speak with A.R. for a few minutes before he was takеn away by police.
What happened to A.R. and D.R.-2 that night was a nightmare that clearly meets the statutory definition of kidnapping, which provides, in pertinent part:
(a) Any person who unlawfully takes custоdy 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:
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“(2) To transport another person with the intent to inflict bodily injury or to terrorize the victim or another person; or”
As I noted in our dissent in State v. Woodrum, No. 18-1043 (W. Va. May 29, 2020) I believe that a clear reading of the statute calls for a very different conclusion than that reached by the majority.2 A plain reading of the statute demonstrates that, under subsection (a)(2) (emphasis added), a person may be found guilty of kidnapping in two possible ways:
- Unlawfully taking custody of, concealing, confining or restraining аnother person against his or her will be means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation or enticement with the intent to transport another person with the intent to inflict bodily injury; or,
- Unlawfully taking custody of, concealing, confining or restraining another person against his or her will be means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation or enticement with the intent to terrorize the victim or another person.
Here, the indictment tracked the second definition in subsection (a)(2) by alleging that:
HARRY LEE SMITH, JR., committed the offense of “Kidnapping” by unlawfully and feloniously holding [A.R. and D.R.-2] at gun point against her will, with the intent to terrorize her, against the peace and dignity of the State.
The two kidnapping counts of the indictment (Counts 1 and 2) are not only consistent with the language of the 2017 statute, but also сonsistent with the long-recognized, common-sense definition of kidnapping as has been reflected in our State‘s statutory and common law for decades.
From the formation of this State until 1933, we did not have a general kidnapping statute. We utilized two Virginia statutes which dealt with the abduction of a female and the kidnаpping of a child. It was not until the kidnapping of Charles Lindbergh‘s child in 1932 that many states, including West Virginia, enacted broader kidnapping statutes with more severe penalties patterned in some degree after the federal kidnapping act,
18 U.S.C. § 1201 . Generally, these statutes expanded the scope of kidnapping to include almost any forced movement or detention within the State.
State v. Miller, 175 W. Va. 616, 620, 336 S.E.2d 910, 914 (1985) (emphasis added).
As I pointed out in our dissent in Woodrum, in 2012, the Legislature amended our kidnаpping statute by revising this section. See
A person is guilty of kidnapping if he unlawfully removes another from his plаce 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.
MODEL PENAL CODE § 212.1 (AM. LAW INST. 2018) (emphasis added). The notes from the Model Penal Code clearly indicate that kidnapping may involve removal or confinement but need not include both:
Section 212.1 confines the mоst serious offenses to instances of substantial removal or confinement for a series of specified purposes, such as to hold for ransom or reward or to interfere with the performаnce of a governmental function. The removal or confinement must be accomplished by force, threat, or deception, or in the case of underage children or incompetents, without the consent of а parent or other appropriate person.
MODEL PENAL CODE § 212, Pt. II, Refs & Annos (AM. LAW INST. 2018) (emphasis added). Reviewing
“(2) To transport another person with the intent to inflict bodily injury or to terrorize the victim or another person.”
The addition of the phrase “to transport аnother person” at the beginning of the phrase clearly applies only to the subsequent phrase “with intent to inflict bodily injury.”
Had the Legislature intended for “[t]o transport” to apply to both subsequent рhrases within the subsection, it would have simply provided “with the intent to inflict bodily injury or terrorize the victim or another person,” leaving out the word “to.” The addition of the word “to” immediately prior to “terrorizе” clearly establishes the phrase “to terrorize the victim or another person,” as an independent phrase, not subject to the modifier “[t]o transport.”
The majority‘s interpretation of thе statute renders the word “to” in the phrase “to terrorize” entirely superfluous and meaningless. Unlawfully restraining another person with intent to terrorize the victim clearly
The indictment was not defective, and thе circuit court correctly concluded that transportation is not an essential element of the crime of kidnapping, as charged. Accordingly, I concur in the majority‘s holding insofar as it affirms Pеtitioner‘s convictions for one count of breaking and entering and three counts of wanton endangerment.
However, I respectfully dissent as to the majority‘s decision to vacate the Petitioner‘s convictions for kidnapping.
I am authorized to state that Justice Jenkins joins in this separate opinion concurring, in part, and dissenting, in part.
For these reasons, I respectfully dissent.