                                                                                FILED
No. 19-0143, State of West Virginia v. Harry Lee Smith, Jr.,                 June 16, 2020
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
ARMSTEAD, C.J., concurring in part and                                      SUPREME COURT OF APPEALS
dissenting in part, joined by JENKINS, Justice:                                  OF WEST VIRGINIA




              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 breaking and

entering. However, I dissent as to the majority’s decision to vacate the convictions for

two counts of kidnapping.

              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 kidnapping statute at various times, but I do not read the statute to require

transportation of the victim in order for the crime of kidnapping to be committed when the

victim is restrained with the intent to terrorize such victim. Because I firmly believe the

Legislature intended kidnapping to include the unlawful restraint of a person with the intent

to terrorize that person or another – as took place here – I dissent, in part, from the

majority’s opinion. 1

              The horrendous facts of this case clearly fit within the clear statutory

definition of kidnapping.




       Although I dissent as to the decision to vacate the kidnapping convictions on the
       1

grounds cited by the majority, I acknowledge that the circuit court erred by assigning the
determination of whether there were mitigating factors to the jury. See State v. Scruggs,
242 W. Va. 499, 836 S.E.2d 466 (2019).
                                              1
              On December 4, 2017, the Petitioner broke into the home of his former

girlfriend, A.R., while she was sleeping. At the time of the break-in, A.R.’s two children,

D.R.-1 and D.R.-2, were living with her. D.R.-1 was studying for her nursing exams in her

bedroom when she looked up and saw the Petitioner with a gun pointed toward her head.

The Petitioner ordered D.R.-1 to get out of her bed and collect all of the cell phones in the

home, and she complied. After collecting the cell phones, D.R.-1 went to the living room,

and the Petitioner “dared her to move.” The Petitioner then went to A.R.’s room and D.R.-

1 took the opportunity to run out of the house. Although the Petitioner followed D.R.-1

saying that he was going to “f’ing kill” her, he eventually gave up his chase.

              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 closet and used that cell phone to call

911. D.R.-1 told 911 that her mother’s boyfriend had broken into her house, held a gun to

her head, and that she was not sure if her mother and brother were alive or dead.

              While 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. through 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.


                                              2
              Thereafter, the Petitioner, A.R., and 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

Petitioner 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 taken 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 custody 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:
              ***
              “(2) To transport another person with the intent to inflict bodily
              injury or to terrorize the victim or another person; or”
W. Va. Code § 61-2-14a (2017).

              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




                                              3
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:

                 (1) 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 transport another

person with the intent to inflict bodily injury; or,

                 (2) 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 I and 2) are not only

consistent with the language of the 2017 statute, but also consistent with the long-


       2
        The Woodrum case examined the 2014 version of our kidnapping statute. Our
kidnapping statute was amended in 2017, but the 2017 amendments did not change the
subsection at issue in this case.
                                               4
recognized, common-sense definition of kidnapping as has been reflected in our State’s

statutory and common law for decades.

              West Virginia’s kidnapping statute was first enacted in 1933 in reaction to

the kidnapping of Charles Lindbergh’s baby. Under that statute, which has been updated

and modified at various times, transport was not necessary to find a person guilty of the

crime of kidnapping. This Court recognized this fact when it held:

                     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
              kidnapping 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 kidnapping statute by revising this section. See W. Va. Code § 61-2-14a (2012). This

express language indicates that the Legislature used the Model Penal Code as a guide. 3

Section 212.1 of the Model Penal Code provides:

              A person is guilty of kidnapping if he unlawfully removes
              another from his place of residence or business, or a substantial
              distance from the vicinity where he is found, or if he

       3
        “A majority of states derive at least one of their kidnapping statutes from the Model
Penal Code section 212.1.” Melanie A. Prince, Two Crimes for the Price of One: The
Problem with Kidnapping Statutes in Tennessee and Beyond, 76 Tenn. L. Rev. 789, 806
(2009).
                                             5
             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 most 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 performance 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 a parent or other
             appropriate person.


MODEL PENAL CODE § 212, Pt. II, Refs & Annos (AM. LAW INST. 2018) (emphasis

added).   Reviewing West Virginia Code § 61-2-14a(a)(2)(2017), it is clear that the

Legislature simply adopted the language of the Model Penal Code and added “to transport

another person” to the beginning and “person” to the end:

                                            6
“(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 another 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

phrases 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 “terrorize” 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 the 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 constitutes kidnapping under W. Va. Code § 61-

2-14(a)(2). Transport of the victim is not a necessary element of this crime and this fact is

consistent with the traditional definition of kidnapping, the Model Penal Code, and the

plain language of the statute.

              The indictment was not defective, and the 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 Petitioner’s convictions

for one count of breaking and entering and three counts of wanton endangerment.



                                              7
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.




                                                8
