No. 14-0904 - State of West Virginia ex rel. Ralph A. Lorenzetti, Jr., Prosecuting Attorney
of Jefferson County v. Honorable David H. Sanders, Judge of the Twenty-Third Judicial
Circuit; and Elizabeth Shanton
                                                                              FILED
                                                                             May 20, 2015

                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

LOUGHRY, Justice, concurring:

              The circuit court’s clear legal error in dismissing fifty-three counts of the fifty­

four-count indictment returned against the respondent, Elizabeth Shanton, deprived the State

of its right to prosecute its case against Ms. Shanton and warranted the issuance of the writ

of prohibition. I write separately to emphasize the correctness of the majority’s decision, as

reflected in its new syllabus point one, which provides that each use of a State-issued

purchasing card (“P-card”) in a manner contrary to West Virginia Code § 12-3-10a, or the

rules promulgated thereunder, constitutes a separate and distinct violation of West Virginia

Code § 12-3-10b.



              On numerous prior occasions, this Court has made clear that, absent a viable

double jeopardy challenge, the propriety of multiple or singular charge(s) is for a jury’s

determination based on evidence of multiple, separately-formed or singular intent(s). This

critical element was thoroughly addressed by Chief Justice Workman in her majority opinion

in State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012). Mr. McGilton stabbed his wife

numerous times during an argument in their home, resulting in his conviction of multiple



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counts of malicious assault. Relying upon prior decisions of this Court,1 the majority

explained that “multiple convictions are appropriate where a defendant performs separate

acts that would support different violations of the same statute.” Id. at 565, 729 S.E.2d at

887. In affirming Mr. McGilton’s conviction, we concluded that

              it is not a reasonable reading of this [malicious assault] statute
              to conclude that a perpetrator can only be charged with one
              malicious assault simply because he or she managed to stab a
              victim multiple times very quickly—regardless of whether or
              not the elements of the crime were committed separately,
              distinctly, and contemporaneously with each stabbing.

Id. at 566, 729 S.E.2d at 888. Accordingly, we held that

                     [a] defendant may be convicted of multiple offenses of
              malicious assault under West Virginia Code § 61-2-9(a) (2004)
              against the same victim even when the offenses were a part of
              the same course of conduct. Such convictions do not violate the
              double jeopardy provisions contained in either the United States
              Constitution or the West Virginia Constitution as long as the
              facts demonstrate separate and distinct violations of the statute.

229 W.Va. at 556, 729 S.E.2d at 878, syl. pt. 9 (emphasis added).



              A year later, in State v. Goins, 231 W.Va. 617, 748 S.E.2d 813 (2013)

(Loughry, J., concurring), Chief Justice Workman and I agreed with the majority’s

conclusion that the defendant’s multiple convictions of brandishing could not be upheld on

the basis of the number of victims present when the defendant discharged his weapon. Id.


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       State v. Green, 207 W.Va. 530, 534 S.E.2d 395 (2000); State v. Myers, 229 W.Va.
238, 728 S.E.2d 122 (2012).

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at 625, 748 S.E.2d at 821. We were highly critical, however, of dicta that disregarded the

principles articulated in McGilton and, instead, eschewed the notion that multiple brandishing

violations could occur on the basis of multiple shots. Id. Drawing upon the analysis

contained in McGilton, I explained that

              the firing of a single shot may constitute an unlawful “use” of a
              firearm which results in a breach of the peace. There is quite
              simply no reason why additional shots–all of which are complete
              and discrete singular acts which likewise cause separate and
              distinct breaches of the peace–should not constitute additional
              violations of the statute where a jury finds a separately formed
              intent.

Goins, 231 W.Va. at 627, 748 S.E.2d at 823 (Loughry, J., concurring). I also cautioned that

“[i]t is a dangerously overreaching conclusion . . . to insist that because the evidence adduced

below in this particular case did not sustain multiple convictions, that the statute would not

support such convictions were satisfactory evidence adduced; certainly, McGilton instructs

otherwise.” Id.



              Following Goins, Chief Justice Workman and I once again took the opportunity

to emphasize that the propriety of multiple or single charges, absent a viable double jeopardy

challenge, is measured by evidence of multiple separately-formed or singular intent(s), as

determined by a jury. In State v. Jerrome, 233 W.Va. 372, 758 S.E.2d 576 (2014) (Loughry,

J., concurring), we joined in the majority’s affirmance of the defendant’s grand larceny

conviction. As I explained,


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               [c]onsistent with the clear import of McGilton, the Court’s new
               syllabus point reflects that whether separate takings from
               separate owners constitute a single or multiple larcenies . . .
               must be determined from the totality of the circumstances and
               is dependent upon the number of separately formed intents as
               proven by the evidence.

                      The facts of the instant case not only illustrate the
               universe of possibilities regarding multiple or single larcenies,
               but are instructive as to the nature and quality of evidence that
               should be adduced at trial to support a conviction. Here, the
               petitioner stole items from four victims. The items were
               contained in three different purses, which were located at two
               different locations in one bar into which the petitioner and her
               boyfriend entered that evening before leaving with the stolen
               items. . . . Although the jury could have well concluded from
               this evidence that the petitioner committed one, two, or three
               different larcenies of varying degrees, it found that one larceny
               occurred, as was within its province.

Id. at 385, 758 S.E.2d at 589 (Loughry, J., concurring).



               In the case sub judice, the circuit court erroneously concluded that Ms.

Shanton’s alleged fraudulent use of the P-card was a “continuing offense;” therefore, she

could not be charged with multiple violations of the statute. This erroneous conclusion led

to the circuit court’s dismissal of fifty-three of the fifty-four counts of the indictment returned

against Ms. Shanton. However, as discussed above, this Court has made it abundantly clear

that the issue of “whether a criminal defendant may be separately convicted and punished for

multiple violations of a single statutory provision turns upon the legislatively-intended unit




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of prosecution.” State v. Green, 207 W.Va. 530, 537, 534 S.E.2d 395, 402 (2000); accord

McGilton, 229 W.Va. at 562, 729 S.E.2d at 884.



              In McGilton, we rejected the defendant’s effort to persuade this Court to rule,

as a matter of law, that when multiple stabbings are part of the same course of conduct, they

constitute a single offense “regardless of the specific circumstances of the crime and

irrespective of whether a perpetrator actually formed the requisite intent each and every time

he or she committed a separate malicious assault of a victim.” Id. at 561, 729 S.E.2d at 883.

Similarly, the majority appropriately rejects Ms. Shanton’s attempt to have this Court rule

that there can only be one violation of West Virginia Code § 12-3-10b, regardless of the

number of separate and distinct purchases made through multiple fraudulent uses of a P-card

over a course of years and in different locations.



              As the majority correctly holds herein, under the plain language of West

Virginia Code § 12-3-10b, each purchase of goods or services made using a state purchasing

card in a manner that is contrary to the provisions of West Virginia Code § 12-3-10a, or the

rules promulgated thereunder, is a distinct offense. Consequently, if the State’s evidence

demonstrates separate and distinct violations of West Virginia Code § 12-3-10b by Ms.

Shanton, and if the State is able to prove beyond a reasonable doubt that she had a specific

intent “for each and every count of the indictment[,]” then multiple convictions can be


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attained. McGilton, 229 W.Va. at 567, 729 S.E.2d at 889 (emphasis in original). Whether

the multiple convictions can be sustained will be “a question of fact which may only be

proven by examining the totality of the circumstances.” Id. at 566, 729 S.E.2d at 888.



              For these reasons, I concur in the majority’s decision to issue the writ

prohibiting the enforcement of the circuit court’s order dismissing fifty-three counts of the

fifty-four-count indictment returned against Ms. Shanton.



              I am authorized to state that Chief Justice Workman joins in this concurrence.




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