No. 13-0775 – State of West Virginia v. Zachary Allen Knotts, Jr.
                                                                            FILED
                                                                         July 18, 2014
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

Benjamin, Justice, concurring:                                           OF WEST VIRGINIA





             I agree and concur with the majority decision in this case. I write separately

to emphasize the inconsistency between this opinion and the majority’s decision in the

recent case of State v. Yocum, --- W. Va. ---, --- S.E.2d ---, 2014 WL 2017843, No. 12­

1309 (May 12, 2014), to which I dissented.



             In Yocum, the petitioner was convicted of threatening a terrorist act under

W. Va. Code § 61-6-24 (2009) because, in retaliation for being arrested for domestic

violence, he threatened to sexually assault members of the arresting officer’s family. On

appeal, the dispositive issue was sufficiency of the evidence to convict the petitioner. A

majority of this Court found insufficient evidence to convict the petitioner on the basis

that a single police officer does not constitute a level or branch of government under W.

Va. Code §61-6-24(a)(3)(B)(iii). The majority also surmised that Mr. Yocum’s threat did

not have a political purpose and the threat was empty and impulsive – something with

which I emphatically disagreed.



             Significantly, there was more evidence supporting a violation of W. Va.

Code § 61-6-24 in Yocum than there is in the instant case. As I pointed out in my dissent


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in Yocum, the arresting officer, Sergeant A., was acting in an official manner and

performing official police duties of the executive branch of government at the time he

arrested Mr. Yocum. Sergeant A. had no power in his individual capacity and did not act

in that capacity. At all times, he was the personification of the power of the executive

branch. Further, there was every reason to believe that Mr. Yocum was a violent person

considering the fact that Sergeant A. arrested him for domestic violence. Under these

facts, after viewing the evidence in the light most favorable to the prosecution, a rational

trier of fact could have and did find the essential elements of threatening a terroristic act

beyond a reasonable doubt.



              In the instant case, a credit union closed Mr. Knotts’ account because of

Mr. Knotts’ odd behavior when visiting the credit union. Specifically, Mr. Knotts, who

suffers from a brain injury, harassed credit union customers regarding the topic of

circumcision. After the credit union closed his account, Mr. Knotts told credit union

management that he was going to blow up the cars of credit union employees and record

the explosions on a DVD in order to let the whole world know how he felt about the

credit union. The majority finds that Mr. Knotts’ threat falls within W. Va. Code § 61-6­

24(a)(3)(A)(i), in that Mr. Knotts threatened an act that is likely to result in serious bodily

injury or damage to property or the environment and was intended to intimidate or coerce

the civilian population.




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              Significantly, in the instant case, the majority does not conduct the same

stringent analysis in determining the sufficiency of the evidence that it conducted in

Yocum. If it did, the majority easily could find that Mr. Knotts’ threatened act was

personal and not political in that it was intended simply to let the world know Mr. Knotts’

personal feelings about the credit union. The majority also could conclude that Mr.

Knotts’ threat was impulsive and empty. In fact, there was a lot more reason to believe

Mr. Yocum’s threat than Mr. Knotts’ threat. Whereas Mr. Yocum was under arrest for

domestic violence at the time he made his violent threat to Sergeant A., Mr. Knotts

suffers from a brain injury and apparently has no history of violence such as blowing up

cars. Finally, the majority could determine that Mr. Knotts’ threat was not made to

intimidate or coerce the civilian population but rather was simply made to intimidate and

coerce the credit union. In the instant case, however, the majority follows our precedent

on judging the sufficiency of the evidence in the record and affirms Mr. Knotts’

conviction – something it did not do in Yocum.



              In sum, I agree that under our deferential standard of review there is

sufficient evidence to support Mr. Knotts’ conviction in the instant case. I write

separately to point out the inconsistency of the majority in the treatments given to Mr.

Yocum’s and Mr. Knotts’ convictions. I am concerned that, to this point, the majority’s

jurisprudence regarding W. Va. Code § 61-6-24 may be characterized as conflicting and

contradictory in that it leaves criminal defendants, lawyers, and judges guessing how this

Court might rule in any given case on a sufficiency of the evidence challenge to a

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conviction under W. Va. Code § 61-6-24. To that extent, I believe Yocum should at most

be narrowly construed.




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