          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2014 Term
                                                                 FILED
                                                               May 12, 2014
                                                               released at 3:00 p.m.
                                     No. 12-1309               RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




                           STATE OF WEST VIRGINIA,
                            Plaintiff Below, Respondent

                                         v.

                             JAMES SCOTT YOCUM,
                             Defendant Below, Petitioner



                  Appeal from the Circuit Court of Marshall County
                     Honorable David W. Hummel, Jr., Judge
                             Civil Action No. 12-F-47

                                     REVERSED


                             Submitted: January 14, 2014
                                Filed: May 12, 2014


Brent A. Clyburn, Esq.                        Patrick Morrisey, Esq.
The Law Office of Brent A. Clyburn            Attorney General
Wheeling, West Virginia                       Scott E. Johnson, Esq.
Counsel for Petitioner                        Senior Assistant Attorney General
                                              Charleston, West Virginia
                                              Counsel for Respondent


JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.
                              SYLLABUS BY THE COURT



              1. “In considering the constitutionality of a legislative enactment, courts must

exercise due restraint, in recognition of the separation of powers in government among the

judicial, legislative and executive branches. Every reasonable construction must be resorted

to by the courts in order to sustain constitutionality, and any reasonable doubt must be

resolved in favor of the constitutionality of the legislative enactment in question. Courts are

not concerned with questions relating to legislative policy. The general powers of the

legislature, within constitutional limits, are almost plenary.           In considering the

constitutionality of an act of the legislature, the negation of legislative power must appear

beyond reasonable doubt.” Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149

W.Va. 740, 143 S.E.2d 351 (1965).



              2. A threat to sexually assault the child of an individual police officer by a

person who is under arrest, handcuffed, and in the patrol car, does not constitute a terrorist

act within the meaning of West Virginia Code § 61-6-24(a)(3)(B)(iii) (2010) because the

threatened action was not directed at intimidating or coercing the conduct of a branch or level

of government.
LOUGHRY, Justice:



                James Scott Yocum appeals from the October 1, 2012, sentencing order of the

Circuit Court of Marshall County denying his motions to dismiss or, alternatively, acquit in

connection with a felony conviction for making a threat to commit a terrorist act.1 The

petitioner seeks to set aside his conviction2 on grounds that the criminal offense set forth in

West Virginia Code § 61-6-24(b) (2010) is unconstitutionally vague and that the State’s

evidence was insufficient to prove he committed the subject offense. While we do not find

the challenged statute to be void for vagueness, we conclude that the State failed to introduce

the necessary evidence to prove that Mr. Yocum committed the felony offense at issue.

Accordingly, we reverse.



                           I. Factual and Procedural Background

                 Shortly after midnight on February 9, 2012, the Moundsville police responded

to a domestic violence call. One of the responding officers, Sergeant Shawn A.,3 arrested

Mr. Yocum for domestic violence, and proceeded to transport him to the Northern Regional

       1
           See W.Va. Code § 61-6-24 (2010).
       2
        Mr. Yocum was sentenced to serve not less than one year nor more than three years
in the penitentiary with seventy-four days credit awarded for time served.
       3
        Given that threats were made by the petitioner against members of Sergeant A.’s
family, we will refer to him by initial only. See State ex rel. Paul B. v. Hill, 201 W.Va. 248,
250 n.1, 496 S.E.2d 198, 200 n.1 (1997).

                                               1
Jail after booking. Because Mr. Yocum was complaining of chest pains, the jail refused to

accept him. As a result, Sergeant A. drove Mr. Yocum to Reynolds Hospital, where he was

determined not to require further medical attention and released.



                 While at the hospital awaiting to be examined, Mr. Yocum had been loud and

used profanity.4 After leaving the hospital, Mr. Yocum continued to yell, as he had at the

hospital, that he was not going to jail.5 He leaned on the partition in the patrol car and

shouted at Sergeant A. that he knew where the police officer lived and that “[h]e was going

to fu*k my [Sergeant A.’s] daughter.” Following this statement, Mr. Yocum stated “[y]eah,

after I get out of jail, I’ll be fu*king your wife, and I’ll fu*k your daughters.”



                 Based on these statements Mr. Yocum made to Sergeant A. while handcuffed

and in the back of the patrol car,6 he was indicted for threatening to commit a terrorist act

pursuant to West Virginia Code § 61-6-24. Following a one-day trial, on September 10,

2012, the petitioner was convicted of one count of threatening to commit a terrorist act.

       4
       At the doctor’s insistence, Mr. Yocum was handcuffed during the examination.
Although the State suggests that the petitioner was combative towards Sergeant A. while at
the hospital, the officer testified to the contrary.
       5
           The petitioner’s boisterous rants were filled with profanity.
       6
        In explanation of these statements, Mr. Yocum testified at trial that Sergeant A.
taunted him by saying you are “going to prison for a long time,” and following that with: “I
got the keys to your house. I’ll be fu*king your old lady.” At trial, the officer denied making
those statements.

                                                2
Through this appeal, Mr. Yocum seeks relief from the denial of his post-trial motions to

dismiss or, alternatively, to acquit.



                                   II. Standard of Review

               When the constitutionality of a statute is challenged, the scope of our review

is necessarily plenary. See Syl. Pt. 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137

(2008) (“The constitutionality of a statute is a question of law which this Court reviews de

novo.”). With regard to the petitioner’s assignment of error predicated on insufficiency of

evidence, the standard we articulated in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163

(1995), continues to be our guidepost:

                      A criminal defendant challenging the sufficiency of the
               evidence to support a conviction takes on a heavy burden. An
               appellate court must review all the evidence, whether direct or
               circumstantial, in the light most favorable to the prosecution and
               must credit all inferences and credibility assessments that the
               jury might have drawn in favor of the prosecution. The
               evidence need not be inconsistent with every conclusion save
               that of guilt so long as the jury can find guilt beyond a
               reasonable doubt. Credibility determinations are for a jury and
               not an appellate court. Finally, a jury verdict should be set aside
               only when the record contains no evidence, regardless of how it
               is weighed, from which the jury could find guilt beyond a
               reasonable doubt.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part.




                                                3
               With these two standards in mind, we proceed to determine whether the circuit

court committed error in denying post-conviction relief to the petitioner.



                                         III. Discussion

                                A. Constitutionality of Statute

               In challenging the criminal offense set forth in West Virginia Code § 61-6-

24(b)7 on grounds of vagueness, the petitioner looks to the language that defines a “terrorist

act.” By statute, a “terrorist act” is “an act that is:

               (A) Likely to result in serious bodily injury or damage to
               property or the environment; and
               (B) Intended to:
               (i) Intimidate or coerce the civilian population:
               (ii) Influence the policy of a branch or level of government by
               intimidation or coercion;
               (iii) Affect the conduct of a branch or level of government by
               intimidation or coercion; or
               (iv) Retaliate against a branch or level of government for a
               policy or conduct of the government.”

W.Va. Code § 61-6-24(a)(3). The specific language upon which Mr. Yocum rests his

vagueness claim is the requirement that the act at issue is “[l]ikely to result in serious bodily

injury.” Id.




       7
       The offense at issue occurs when “[a]ny person . . . knowingly and willfully threatens
to commit a terrorist act with or without the intent to commit the act. . . .” W.Va. Code § 61-
6-24(b).

                                                 4
               “[B]ecause a statute is presumed to be constitutional,” our examination of a

constitutional challenge to a legislative enactment necessarily involves judicial restraint.

State v. James, 227 W.Va. 407, 413, 710 S.E.2d 98, 104 (2011). The reasons for such

restraint were fully articulated in syllabus point one of State ex rel. Appalachian Power Co.

v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965):

                      In considering the constitutionality of a legislative
              enactment, courts must exercise due restraint, in recognition of
              the principle of separation of powers in government among the
              judicial, legislative and executive branches. Every reasonable
              construction must be resorted to by the courts in order to sustain
              constitutionality, and any reasonable doubt must be resolved in
              favor of the constitutionality of the legislative enactment in
              question. Courts are not concerned with questions relating to
              legislative policy. The general powers of the legislature, within
              constitutional limits, are almost plenary. In considering the
              constitutionality of an act of the legislature, the negation of
              legislative power must appear beyond reasonable doubt.

Given our clear preference for upholding legislative enactments, this Court “will interpret

legislation in any reasonable way which will sustain its constitutionality.” State v. Legg, 207

W.Va. 686, 694, 536 S.E.2d 110, 118 (2000); accord Syl. Pt. 3, Slack v. Jacob, 8 W.Va. 612

(1875) (“Wherever an act of the Legislature can be so construed and applied as to avoid a

conflict with the Constitution, and give it the force of law, such construction will be adopted

by the courts.”).



              The petitioner maintains that because he and the State disagree regarding the

meaning of the phrase “likely to result in serious bodily injury,” this renders the statute

                                              5
unconstitutionally vague.8 As the State correctly observes, the mere fact of disagreement

among the parties does not compel the conclusion that a statutory provision is vague. See In

re Resseger’s Estate, 152 W.Va. 216, 220, 161 S.E.2d 257, 260 (1968) (“That the parties

disagree as to the meaning or the applicability of each provision does not of itself render

either provision ambiguous or of doubtful, uncertain or obscure meaning.”); accord Planned

Parenthood v. State of Arizona, 718 F.2d 938, 948 (9th Cir. 1983) (“Substantial numbers of

lawsuits arise out of disagreements over the precise meaning of a statute. The potential for

such differences of opinion cannot be enough to render a statute void for vagueness.”);

Southwestern Bell Telephone Co. v. City of El Paso, 168 F.Supp.2d 640, 645 (W.D. Tex.

2001) (“While the parties argue over the interpretation of the word ‘public’ in the statute, this

disagreement does not render it void for vagueness.”); State v. Mattiolo, 556 A.2d 584, 587

(Conn. 1989) (“Honest disagreement about the interpretation of a statutory provision does

not, however, make the statute ambiguous or vague.”).



              As additional support for a finding of constitutional deficiency, the petitioner

asserts his due process rights were violated by failing to provide him with notice as to the

elements of the offense. Mr. Yocum looks to the long-established principle that “a criminal

statute must be set out with sufficient definiteness to give a person of ordinary intelligence


       8
        According to Mr. Yocum, the State views the language in speculative terms whereas
the petitioner believes that the statute refers to a reasonable expectation or probability that
an event will occur.

                                               6
fair notice that his contemplated conduct is prohibited by statute.” State v. Flinn, 158 W.Va.

111, 117, 208 S.E.2d 538, 542. As we observed in State ex rel. Appleby v. Recht, 213 W.Va.

503, 583 S.E.2d 800 (2002), “[t]he void for vagueness doctrine is an aspect of the due

process requirement that statutes set forth impermissible conduct with sufficient clarity that

a person of ordinary intelligence knows what conduct is prohibited and the penalty if he

transgresses these limitations.” Id. at 518, 583 S.E.2d at 815.



                 In an attempt to cast the criminal statute as running afoul of constitutional

protections, the petitioner suggests that enhanced scrutiny applies for determining the issue

of vagueness because speech is involved in making a threat to commit a terrorist act. In

Flinn, this Court explained the distinction between examining general criminal statutes and

those that govern potential First Amendment9 and similarly sensitive constitutional rights for

vagueness purposes. 158 W.Va. at 118-19, 208 S.E.2d at 543. In the case of general

criminal statutes, the review entails an examination of both the face of the statute and by

considering the statute in the light of the conduct to which it is applied. Id. at 119, 208

S.E.2d at 543. In contrast, those statutes that govern First Amendment rights such as speech

are “strictly tested for certainty by interpreting their meaning from the face of the statutes.”

158 W.Va. at 118, 208 S.E.2d at 543.




       9
           U.S. Const. amend. I.

                                               7
               We reject the petitioner’s argument that West Virginia Code § 61-6-24 must

be subjected to the stricter “void for vagueness” analysis that pertains to criminal statutes

which address or affect freedom of speech. Certain categories of speech are considered to

fall outside the protections afforded by the First Amendment. See generally U.S. v. Alvarez,

132 Sup. Ct. 2537, 2544 (2012) (identifying permissible content-based restrictions on speech

as including advocacy intended to incite imminent lawless action; obscenity; defamation;

“fighting words;” child pornography; and true threats). Among those recognized types of

speech that can be subject to restriction and thus fall outside the broad protections of the First

Amendment, is speech integral to criminal conduct. In Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949), the United States Supreme Court held that the constitutional freedom

of speech and press does not immunize speech or writing used as an integral part of conduct

in violation of a criminal statute. Id. at 498. Because the speech to which Mr. Yocum seeks

to attach First Amendment protections was integrally connected to the criminal conduct at

issue, the statute is viewed as a general criminal statute for purposes of conducting a

vagueness analysis. See Flinn, 158 W.Va. at 119, 208 S.E.2d at 543.



               In deciding whether the challenged language “likely to result in serious bodily

injury” is vague, we consider whether a potential offender has been given notice of the type

of conduct he should avoid committing. See Syl. Pt. 1, in part, State ex rel. Myers v. Wood,

154 W.Va. 431, 175 S.E.2d 637 (1970) (“The basic requirements [to satisfy due process] are


                                                8
that such a statute must be couched in such language so as to notify a potential offender of

a criminal provision as to what he should avoid doing in order to ascertain if he has violated

the offense provided and it may be couched in general terms.”). We find the language at

issue to be patently clear in its meaning and in need of no further interpretation by this Court

to place a potential offender on notice as to what conduct is proscribed: any conduct, that

if effectuated, has the anticipated potentiality to cause serious bodily harm.10 “‘The language

here challenged conveys sufficiently definite warning as to the proscribed conduct when

measured by common understanding and practices. The Constitution requires no more.’”

Flinn, 158 W.Va. at 118, 208 S.E.2d at 542 (quoting United States v. Petrillo, 332 U.S. 1,

7-8 [1947]). Accordingly, we find the challenged language of West Virginia Code § 61-6-24

to be free from constitutional defect.



                                B. Sufficiency of Evidence

              The State argues that it adduced sufficient evidence for the jury to conclude

that it proved all the elements of West Virginia Code § 61-6-24 to convict the petitioner for

the offense of threatening to commit a terrorist act. In deciding whether the State proved its

case, we look to the indictment to identify the specific allegations of criminal conduct at



       10
         While the challenged language involves “serious bodily injury,” the statute also
includes damage to property and the environment. Each of the statutorily-defined “terrorist
acts” must have been threatened for the purpose of accomplishing one of four specified
intentions. See W.Va. Code § 61-6-24(a)(3).

                                               9
issue. As set forth in the indictment, following his arrest for domestic battery and petit

larceny, Mr. Yocum, during transport to the Northern Regional Jail, “repeatedly threatened

Detective A. . . . that he knew where he lived and he was going to sexually assault his

daughter.” After relating that Detective A. has two step-daughters, ages 9 and 12 years old,

the indictment provides that the petitioner “made the said threats in an attempt to intimidate

or coerce Detective A. regarding his duty as a Moundsville Police Officer, against the peace

and dignity of the State of West Virginia and W. V[a]. Code § 61-6-24[a](3)(iii) .”11



              Focusing on the pertinent language of West Virginia Code § 61-6-24, the State

was required to prove that Mr. Yocum knowingly and willingly threatened to commit an act

that was likely to result in serious bodily injury and intended to affect the conduct of a branch

or level of government by intimidation or coercion. See W. V. Code § 61-6-24(a)(3)(iii),

(b). As an initial matter, we find it wholly unnecessary to engage in the protracted discussion

the parties pursued with regard to whether a sexual act forced upon a young girl would be

likely to cause her harm,12 as we take judicial notice of the fact that sexual acts forced upon

a young girl would likely result in serious injury. We proceed to examine whether the

petitioner’s threat was intended, by means of intimidation or coercion, to affect the conduct

       11
        Subsection (a) was omitted from the criminal citation in the indictment. It is clear
from the language used in the indictment that the charge was brought pursuant to West
Virginia Code § 61-6-24(a)(3)(iii).
       12
        The petitioner did not know the age of Sergeant A.’s stepdaughters or even if he had
any children at the time he uttered the statements at the center of this case.

                                               10
of a branch or level of government. To meet this element of the statute, the State suggests

that “the jury could have found that the purpose of the threat was to intimidate Officer A. into

disregarding his duty of ensuring that the Petitioner was incarcerated at the Northern

Regional Jail.”



              As was the case with many other states, our anti-terrorism statute, West

Virginia Code § 61-6-24, was enacted in direct response to the events of September 11,

2001.13 Given the undeniably momentous, nation-shaping, and security-altering predicate

for the subject legislation, we find it prudent to consider the dual aim of our anti-terrorism

statute: to thwart and/or punish future instances of qualifying acts of terrorism. And, while

we are forced to decide this case without the benefit of legislative history,14 we are not

required to resolve issues of significant consequence in a legal vacuum or without guidance.

As this is the first case that has reached us under our anti-terrorism statute, we find it useful

to consider how New York has addressed analogous concerns raised in regards to its anti-


       13
       West Virginia Code § 61-6-24 was enacted in the sixth extraordinary session of 2001
and went into effect on November 30, 2001. See 2001 W.Va. Acts, 6th Ex. Sess., c. 23.
       14
        In the legislative findings of its anti-terrorism act, New York lists the following
examples of terrorism: (1) the September 11, 2001, attacks on the World Trade Center and
the Pentagon; (2) the bombings of American embassies in Kenya and Tanzania in 1998; (3)
the destruction of the Oklahoma City federal office buildings in 1995; (4) the mid-air
bombing of Pan Am Flight number 103 in Lockerbie, Scotland, in 1988; (5) the 1997
shooting from atop the Empire State Building; (6) the 1994 murder of Ari Halberstam on the
Brooklyn Bridge; and (7) the bombing at the World Trade Center in 1993. See N.Y. Penal
Law § 490.00 (Consol. Supp. 2014).

                                               11
terrorism law. See Jenkins v. City of Elkins, 230 W.Va. 335, 349, 738 S.E.2d 1, 15 (2012)

(recognizing need for extrajurisdictional guidance in addressing matters of first impression).



               In People v. Morales, 982 N.E.2d 580 (N.Y. 2012), the New York Court of

Appeals examined whether multiple acts of violence directed at rival gangs could properly

come within that state’s anti-terrorism legislation. At issue was whether the subject criminal

action was committed with the requisite “intent to intimidate or coerce a civilian population.”

Id. at 584 (discussing New York Penal Law 490); cf. W.Va. Code § 61-6-24(a)(3)(B)(i).15

The New York Appeals Court began its analysis in Morales by stating that the statutorily-

undefined phrase must be accorded “its ‘most natural and obvious meaning’ based on

common sense and reasonableness in the context of the purpose and history of the terrorism

statutes. . . .” 982 N.E.2d at 584 (internal citations omitted). In explanation of its decision

to refrain from adopting a precise definition of “civilian population,” the appellate court

observed that the evidence adduced at trial revealed a discrete criminal transaction against

identified gang enemies, rather than an attempt to intimidate or coerce the entire Mexican-

American community in this Bronx neighborhood. Id. at 585. Of critical import to the Court

in Morales was the fact that

              there is no indication that the legislature enacted article 490 of


       15
        That section defines a terrorist act as including “an act that is: Likely to result in
serious bodily injury or damage to property or the environment; and (B) Intended to: (i)
Intimidate or coerce the civilian population.” W.Va. Code § 61-6-24(a)(3)(B)(i).

                                              12
              the Penal Law with the intention of elevating gang-on-gang
              street violence to the status of terrorism as that concept is
              commonly understood. Specifically, that statutory language
              cannot be interpreted so broadly so as to cover individuals or
              groups who are not normally viewed as “terrorists” . . . .

Id. (emphasis supplied).



              The Court in Morales recognized that the New York Legislature consulted the

federal definition of “international terrorism” in framing its anti-terrorism statutes:

              The federal antiterrorism statutes were designed to criminalize
              acts such as “the detonation of bombs in a metropolitan area” or
              “the deliberate assassination of persons to strike fear into others
              to deter them from exercising their rights”–conduct that is not
              akin to the serious offenses charged in this case.

982 N.E.2d at 585 (footnote omitted). In rejecting the application of the anti-terrorism law

to the gang violence at issue in Morales, the appellate court reasoned that “the concept of

terrorism has a unique meaning and its implications risk being trivialized if the terminology

is applied loosely in situations that do not match our collective understanding of what

constitutes a terrorist act.” Id. at 586 (emphasis supplied). As the New York Legislature

recognized with the adoption of its anti-terrorism law, acts of terrorism typically involve

politically-motivated and mass-targeted harm caused by incendiary or other means capable

of causing significant mortal injuries. See supra note 14.




                                              13
               Turning to the case before us, we are asked to decide whether the actions of

Mr. Yocum, in threatening to sexually assault the daughter of his arresting officer, come

within the definition of proscribed terrorist acts set forth in West Virginia Code § 61-6-

24(a)(3). In seeking to prosecute the petitioner under our anti-terrorism statute, the State

framed its case as a threat intentionally made “to intimidate Officer A. into disregarding his

duty of ensuring that the Petitioner was incarcerated at the Northern Regional Jail.” Even

assuming that Mr. Yocum’s statements were articulated for the express purpose of preventing

his incarceration,16 to constitute a “terrorist act” those statements are still required to satisfy

the Legislature’s intent in proscribing threats directed at and intended to affect the conduct

of a branch or level of government by means of intimidation or coercion. See W.Va. Code

§ 61-6-24(a)(3)(B)(iii).



               In the same manner that the Court in Morales found it necessary to consider

both the precipitating events for its anti-terrorism statutes and the federal source for its law,

we are mindful that our Legislature was similarly motivated and likely to have consulted

federal definitions of terrorism in framing West Virginia Code § 61-6-24. And while this

Court readily acknowledges the existence of multiple definitions of terrorism,17 we doubt that

       16
        See Syl. Pt. 3, Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (according State benefit of
inferences and credibility determinations in review of evidence for sufficiency purposes).
       17
       See Nicholas J. Perry, The Numerous Federal Legal Definitions of Terrorism: The
Problem of Too Many Grails, 30 J. Legis. 249 (2004) (discussing twenty-two definitions of
                                                                           (continued...)

                                                14
anyone would disagree with the sage observation in Morales that “the concept of terrorism

has a unique meaning.” 982 N.E.2d. at 586. Despite the variance in statutory enactments

which address terrorism, there is a consensus that both violence and a political purpose or

motivation are universal components included in this type of legislation. See Nicholas J.

Perry, The Numerous Federal Legal Definitions of Terrorism: The Problem of Too Many

Grails, 30 J. Legis. 249, 251 (2004) (recognizing that “vast majority of definitions of

terrorism contain some reference to the two most common components . . . violence and a

political purpose or motivation”) (footnote omitted).



                 Against this background, we consider what the Legislature intended when it

created an offense for threatening action against a branch or level of government by means

of intimidation or coercion. See W.Va. Code § 61-6-24(a)(3)(B)(iii). Consistent with our

statutory obligation to give effect to each word of a statute and to construe it in accord with

the import of its language,18 we cannot gloss over the fact that the terms “level” and “branch”

suggest that the Legislature was contemplating threats of terrorist activity aimed not at

individuals such as Sergeant A. in this case, but instead at the institutional level. It is

noteworthy that not one of the four delineations of the intent necessary to come within the


       17
         (...continued)
terrorism in federal law).
       18
            See Syl. Pt. 6, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171
(1984).

                                              15
definition of a “terrorist act” is framed in terms of causing harm to an individual. See W.Va.

Code § 61-6-24(a)(3)(B)(i)-(iv). The first definition of the requisite intent necessary to

commit a statutorily-defined “terrorist act” involves conduct aimed at the civilian population

as a whole and the remaining three all require conduct that is directed at a branch or level of

government as a whole. See id.



              In this case, the threat that was prosecuted by the State was clearly not aimed

at a branch or level of government but solely at an individual police officer. Consequently,

we have little difficulty in concluding that a threat to sexually assault the child of an

individual police officer by a person who is under arrest, handcuffed, and in the patrol car,

does not constitute a terrorist act within the meaning of West Virginia Code § 61-6-

24(a)(3)(B)(iii) because the threatened action was not directed at intimidating or coercing the

conduct of a branch or level of government. To hold otherwise would not only require us to

turn a blind eye to the overarching objective of our state’s anti-terrorism law but would run

the risk of trivializing the offense at issue. See Morales, 982 N.E.2d at 586.



              Rather than sanctioning overzealous prosecution, we take this opportunity to

encourage both law enforcement and the prosecutors of this state to charge individuals with

offenses that properly encompass the alleged wrongdoing at issue. In this case, the State

could have charged Mr. Yocum with a violation of West Virginia Code § 61-5-27 (2010),


                                              16
which criminalizes the actions of individuals who seek to intimidate or retaliate against

public officers and employees by threats of physical force or harassment in an attempt to

impede or obstruct that individual from performing his or her official duties.19 Instead, the

State sought to overreach and punish Mr. Yocum for the type of impulsive empty “threat”

that any seasoned police officer such as Sergeant A.20 regularly encounters in the course of

his duties–a threat that falls well outside the definitional parameters of terrorist activity.21

See W.Va. Code § 61-6-24(a)(3)(B)(i)-(iv).



                                       IV. Conclusion

               Based on the foregoing, the decision of the Circuit Court of Marshall County

is reversed.

                                                                                     Reversed.




       19
         Depending on the specific acts involved, a conviction under West Virginia Code §
61-5-27 could result in either a misdemeanor conviction and a jail term of up to one year plus
a fine of up to $1,000, or a felony conviction with a prison sentence of one to ten years plus
a fine of up to $2,000. See W.Va. Code § 61-5-27(d), (e).
       20
         Sergeant A. had been on the force for fifteen years at the time of the incident that
is the subject of this case.
       21
         Sergeant A.’s testimony that he would have charged Mr. Yocum for violating the
anti-terrorism statute even if he did not have a stepdaughter suggests an overly-zealous
approach to the use of our statute.

                                              17
