                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent
                                                                               January 8, 2018
                                                                               EDYTHE NASH GAISER, CLERK
vs) No. 17-0092 (Lewis County 16-M-AP-3)                                       SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Jimmy Ray Bonnett Jr.,
Defendant Below, Petitioner


                                MEMORANDUM DECISION
        Petitioner Jimmy Ray Bonnett Jr., by counsel Jeremy B. Cooper, appeals the Circuit
Court of Lewis County’s January 4, 2017, order denying his appeal of a magistrate court jury
verdict. The State of West Virginia, by counsel Gordon L. Mowen II, filed a response in support
of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred in finding that he was not prejudiced by the State’s amendment of the criminal
complaint during trial.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        By criminal complaint filed in magistrate court on March 8, 2015, petitioner was charged
with domestic battery. The criminal complaint set forth that petitioner violated the domestic
battery statute, and the portion of the criminal complaint form in which the statutory language of
the offense was to be listed was completed as follows: “[a]ny person who unlawfully and
intentionally makes physical contact of an insulting and provoking nature with his or her family
or household member or unlawfully and intentionally causes physical harm to his or her family
member[,]” which tracks the language of the 2011 version of the statute. The facts alleged in
support of this charge were that petitioner “unlawfully and intentionally ma[d]e contact of an
insulting or provoking nature by slapp[ing] and push[ing] the victim[.]”

       On March 29, 2016, a jury trial commenced in magistrate court. After opening
statements, petitioner moved to dismiss the domestic battery charge on the ground that the
criminal complaint included language from a prior version of the domestic battery statute.1 In

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           The 2011 version of the domestic battery statute provided that

                                                                                    (continued . . . )
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other words, it included language not in effect at the time petitioner committed the offense. The
State, in response to the motion, moved to amend the complaint to update the statutory language.
The magistrate court granted the State’s motion. The State then crossed-out the 2011 language
and amended the criminal complaint to include the updated statutory language as follows: “[a]ny
person who unlawfully and intentionally makes physical contact force capable of causing
physical pain or injury with his or her family or household member or unlawfully and
intentionally causes physical pain to his or her family or household members.” Additionally, the
facts in support of the charge were amended to include that petitioner “did unlawfully and
intentionally make physical contact force capable of causing physical pain or injury by slapping
and pushing the victim[,]” and the terms “a family or household member” were added.
Previously-asserted facts that comported with the prior version of the statute were crossed out
and replaced with the handwritten updates provided above.

        Trial resumed, and petitioner was found guilty of domestic assault, a lesser-included
offense of domestic battery. Petitioner moved for a new trial, which was denied by the magistrate
court. Petitioner then filed a “Petition for Appeal” with the circuit court asserting various alleged
errors. Of specific relevance to the instant appeal is the circuit court’s ruling that no error
resulted from the State’s amendment of the criminal complaint pursuant to Rule 6 of the West
Virginia Rules of Criminal Procedure for Magistrate Courts. By order entered on January 4,
2017, the circuit court denied petitioner’s petition for appeal and affirmed the magistrate court’s
judgment. It is from this order that petitioner appeals.

       We have previously articulated the following standard of review:



       [a]ny person who unlawfully and intentionally makes physical contact of an
       insulting or provoking nature with his or her family or household member or
       unlawfully and intentionally causes physical harm to his or her family or
       household member, is guilty of a misdemeanor and, upon conviction thereof, shall
       be confined in a county or regional jail for not more than twelve months, or fined
       not more than five hundred dollars, or both.

W.Va. Code § 61-2-28(a) (2011). That version remained in effect until June 12, 2014. Following
the 2014 amendments and at the time petitioner was alleged to have committed domestic battery,
the domestic battery statute provided that

       [a]ny person who unlawfully and intentionally makes physical contact force
       capable of causing physical pain or injury to his or her family or household
       member or unlawfully and intentionally causes physical harm to his or her family
       or household member, is guilty of a misdemeanor and, upon conviction thereof,
       shall be confined in jail for not more than twelve months, or fined not more than
       $500, or both fined and confined.

Id. at § 61-2-28(a) (2014).



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               In reviewing challenges to the findings and conclusions of the circuit
       court, we apply a two-pronged deferential standard of review. We review the final
       order and the ultimate disposition under an abuse of discretion standard, and we
       review the circuit court’s underlying factual findings under a clearly erroneous
       standard. Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. W.Va. Ethics Comm’n, 201 W.Va. 108, 429 S.E.2d 167 (1997).

         Petitioner argues on appeal that the criminal complaint should have been dismissed and
that he was prejudiced by the amendment. Petitioner cites West Virginia Code § 62-1-1 for the
proposition that “a basic requirement of a criminal complaint is that it sets forth the offense
charged,” and argues that the criminal complaint here was defective for failing to set forth an
offense, and asserts that this defect warranted dismissal. While acknowledging that criminal
complaints and indictments are “not comparable in every circumstance,” petitioner relies upon
State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006), to support his contention that the
criminal complaint should have been dismissed for failing to charge an actual offense. Id. at 698,
639 S.E.2d at 790, Syl. Pt. 5, in part (“Without objection, the indictment should be upheld unless
it is so defective that it does not, by any reasonable construction, charge an offense under West
Virginia law or for which the defendant was convicted.”)

         To begin, we note that West Virginia Code § 62-1-1 provides only that “[t]he complaint
is a written statement of the essential facts constituting the offense charged. It shall be made
upon oath before a justice of the peace.” We have noted that criminal complaints are “the first of
many steps in a criminal prosecution. [Their] essential function is informative, not adjudicative.
It is enough that a fair-minded magistrate could conclude that the facts and circumstances alleged
justify further criminal proceedings and that the charges are not merely capricious.” State ex rel.
Walls v. Noland, 189 W.Va. 603, 606, 433 S.E.2d 541, 544 (1993) (internal quotations and
citation omitted). A criminal indictment, on the other hand, is

       sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R.
       Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a
       defendant on fair notice of the charge against which he or she must defend; and
       (3) enables a defendant to assert an acquittal or conviction in order to prevent
       being placed twice in jeopardy.

Syl. Pt. 6, in part, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999). As petitioner
acknowledges, these pronouncements make clear that the sufficiency of a criminal complaint is
judged differently from a criminal indictment. Thus, we decline to find, pursuant to Johnson, that
the criminal complaint was so defective that dismissal was the proper remedy.

        Petitioner also argues that, although Rule 6 of the West Virginia Rules of Criminal
Procedure for Magistrate Courts allows for the amendment of a criminal complaint, the
amendment prejudiced his substantial rights. Petitioner relies on this Court’s articulation of what
constitutes “substantial rights” where the plain error doctrine is applied to conclude that his
substantial rights have been prejudiced. In the plain error context, we have held that

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               [i]n determining whether the assigned plain error affected the ‘substantial
       rights’ of a defendant, the defendant need not establish that in a trial without the
       error a reasonable jury would have acquitted; rather, the defendant need only
       demonstrate the jury verdict in his or her case was actually affected by the
       assigned but unobjected to error.

Syl. Pt. 3, State v. Marple, 197 W.Va. 47, 475 S.E.2d 47 (1996). Petitioner contends that
amending a purportedly void complaint no doubt changed the outcome of his trial because,
without the amendment, he could not have been convicted. Therefore, petitioner argues that his
substantial rights were violated and that the courts erred in concluding that dismissal was not
necessary.

        Petitioner’s argument is based on the premise that the criminal complaint was so
defective that dismissal was the only remedy. As set forth above, we do not agree. Additionally,
Rule 6 of the Rules of Criminal Procedure for the Magistrate Courts of West Virginia provides as
follows:

       (a)     Amendment. Upon motion, the magistrate shall permit the complaint,
       warrant, summons or any other document to be amended at any time before
       verdict if no additional or different offense is charged and if substantial rights of
       the defendant are not prejudiced.

       (b)    Harmless Error. Error in the citation of the statute or rule or regulation
       which the defendant is alleged to have violated, or the omission of the citation
       shall not be ground for dismissal or for reversal of a conviction if the error or
       omission did not mislead the defendant to his or her prejudice.

Petitioner acknowledges that the amendment was made prior to the jury’s verdict and that the
complaint was not amended to charge an additional or different offense. Petitioner acknowledged
at the hearing on his petition for appeal in the circuit court that, “I think it would be disingenuous
to stand here and say we didn’t know he was charged with [d]omestic [b]attery.” Petitioner does
not claim that he was unable to mount a defense as a result of the late amendment. Thus, we do
not find that petitioner’s substantial rights were violated.

       For the foregoing reasons, the circuit court’s January 4, 2017, order denying petitioner’s
appeal of a magistrate court jury verdict is hereby affirmed.




                                                                                           Affirmed.

ISSUED: January 8, 2018




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CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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