        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             September Term 2017

                                _______________                   FILED
                                                              October 19, 2017
                                  No. 17-0449                      released at 3:00 p.m.
                                                                 RORY L. PERRY, II CLERK

                                _______________                SUPREME COURT OF APPEALS

                                                                    OF WEST VIRGINIA




              STATE EX REL. STATE OF WEST VIRGINIA,

                             Petitioner

                                 v.

                THE HONORABLE RONALD E. WILSON,

          JUDGE OF THE CIRCUIT COURT OF BROOKE COUNTY;

                       AND FLOYD FERENCE,

                            Respondents

                          _______________

                 ORIGINAL PROCEEDING IN PROHIBITION
                            _______________

                               WRIT GRANTED
                               _______________

                          Submitted: October 11, 2017

                            Filed: October 19 , 2017


Joseph E. Barki, III, Esq.                         Robert G. McCoid, Esq.
Brooke County Prosecuting Attorney                 McCamic, Sacco
Office of the Brooke County Prosecuting Attorney   & McCoid, PLLC
Wellsburg, West Virginia                           Wheeling, West Virginia
Counsel for the Petitioner                         Counsel for Respondent
                                                   Floyd Ference



JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




       “Except for willful, intentional fraud the law of this State does not permit the court to

go behind an indictment to inquire into the evidence considered by the grand jury, either to

determine its legality or its sufficiency.” Syllabus, Barker v. Fox, 160 W.Va. 749, 238 S.E.2d

235 (1977).
Justice Ketchum:


       In this original proceeding in prohibition, the State of West Virginia, through the

Brooke County Prosecuting Attorney, challenges the Circuit Court of Brooke County’s sua

sponte dismissal, with prejudice, of an indictment. The indictment charged the respondent,

Floyd Ference (“defendant”), under W.Va. Code, 61-6-24(b) [2009], with the felony offense

of threatening to commit a terrorist act.



       This Court concludes that the circuit court exceeded its jurisdiction in dismissing the

indictment and that relief in prohibition is warranted. We, therefore, prohibit enforcement

of the April 17, 2017, order which dismissed the indictment. The indictment is reinstated,

and this matter is remanded to the circuit court for further proceedings.1



                         I. Factual and Procedural Background

       On September 3, 2016, Lieutenant L. G. Skinner, Jr., of the Wellsburg Police

Department, filed a criminal complaint against the defendant in the Brooke County

Magistrate Court. The complaint stated that on September 1, 2016, the defendant, a

custodian at Wellsburg Middle School, was dissatisfied with his list of assigned duties and


       1
         In addition to challenging the dismissal of the indictment, the State asks in its
petition for a writ of prohibition that the Judge be disqualified from presiding over any
remand proceedings in the defendant’s case. However, this Court has already ruled that,
insofar as the State’s petition seeks the disqualification of the Judge, relief is refused.

                                              1

work schedule and told two other custodians that, if more work were placed on him, he would

“get a gun and start taking people out.” The complaint further stated that the defendant asked

one of the other custodians “what kind of handgun was the best.”2 The magistrate found

probable cause to issue a warrant for the defendant’s arrest, charging him with the felony

offense of threatening to commit a terrorist act under W.Va. Code, 61-6-24.



       A preliminary hearing was later conducted in magistrate court during which witnesses

testified and arguments by the State and the defense were heard. As recounted by the State,

both custodians provided substantially similar testimony at the preliminary hearing,

maintaining that the defendant stated: “If they give me any more work to do and I can’t do

it, I am going to get a gun and I’m going to come in here and shoot people and their friends

and their family.” Probable cause was found, and the defendant was bound over to the

circuit court.



       In November 2016, the Brooke County grand jury returned a single Count indictment,

no. 16-F-72, charging that on or about September 1, 2016, the defendant


       did commit the felony offense of “Threats to Commit a Terrorist Act” when he
       did unlawfully, knowingly and willfully threaten to commit a terrorist act, with


       2
       According to the complaint, the defendant had been told by his supervisor in
August 2016 that his work was unsatisfactory and that he was not to leave early from
work. The defendant also worked as a custodian at Franklin Primary School.

                                              2

      or without the intent to commit the act, to wit: Floyd Ference, an employee of
      the Brooke County School System, while at Wellsburg Middle School, did
      threaten to get a gun and start shooting people at the school, in violation of
      Chapter 61, Article 6, Section 24(b) of the West Virginia Code and against the
      peace and dignity of the State.



      The charging language of the indictment substantially followed the provisions of

W.Va. Code, 61-6-24(b) [2009], which states:


              (b) Any person who knowingly and willfully threatens to commit a
      terrorist act, with or without the intent to commit the act, is guilty of a felony
      and, upon conviction thereof, shall be fined not less than $5,000 nor more than
      $25,000 or confined in a state correctional facility for not less than one year
      nor more than three years, or both.3



      Although no motion to dismiss the indictment was filed by defense counsel, the circuit

court entered an order, sua sponte, on April 17, 2017, dismissing the indictment with

prejudice. The order was entered shortly before the defendant’s trial which was scheduled

to begin on April 24, 2017. The circuit court concluded:




       3
         The 2009 version of W.Va. Code, 61-6-24(b), applicable here, constitutes an
expansion by the West Virginia Legislature of the original statute. Under the original
statute, W.Va. Code, 61-6-24(b) [2001], the offense of threatening to commit a terrorist
act could be established “without the intent to commit the act.” Under the 2009 version,
the offense can be established “with or without the intent to commit the act.” (emphasis
added). Neither version of the statute alters the element of a criminal defendant’s intent
to make the threat itself.

                                              3

       [T]he alleged terrorist activity stated in the indictment was aimed at shooting
       individuals at the school instead of conduct aimed at the civilian population as
       a whole and not conduct that was directed at a branch or level of government
       as a whole. Therefore the court concludes that [a] threat to individual persons
       at the school does not constitute a terrorist act within the meaning of West
       Virginia Code § 61-6-24 because the threatened action was not directed at
       intimidating or coercing the conduct of a branch or level of government.


       The State filed a petition for a writ of prohibition in this Court seeking to prohibit

enforcement of the April 17, 2017, order. The defendant filed a response, and on August 30,

2017, this Court issued a rule to show cause why the relief requested by the State should not

be granted.



                          II. Standard for Relief in Prohibition

       This Court has original jurisdiction in prohibition proceedings pursuant to art. VIII,

§ 3, of The Constitution of West Virginia. In considering whether to grant relief in

prohibition, this Court stated in the syllabus point of State ex rel. Vineyard v. O’Brien, 100

W.Va. 163, 130 S.E.2d 111 (1925): “The writ of prohibition will issue only in clear cases

where the inferior tribunal is proceeding without, or in excess of, jurisdiction.” Accord State

ex rel. Rubenstein v. Bloom, 235 W.Va. 70, 72, 771 S.E.2d 717, 719 (2015).



       Here, the State contends that the circuit court exceeded its jurisdiction in dismissing

the indictment. We therefore look to the following guidelines set forth in syllabus point 4 of

State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):

                                              4

               In determining whether to entertain and issue the writ of prohibition for
       cases not involving an absence of jurisdiction but only where it is claimed that
       the lower tribunal exceeded its legitimate powers, this Court will examine five
       factors: (1) whether the party seeking the writ has no other adequate means,
       such as direct appeal, to obtain the desired relief; (2) whether the petitioner will
       be damaged or prejudiced in a way that is not correctable on appeal; (3)
       whether the lower tribunal’s order is clearly erroneous as a matter of law; (4)
       whether the lower tribunal’s order is an oft repeated error or manifests
       persistent disregard for either procedural or substantive law; and (6) whether
       the lower tribunal’s order raises new and important problems or issues of law
       of first impression. These factors are general guidelines that serve as a useful
       starting point for determining whether a discretionary writ of prohibition
       should issue. Although all five factors need not be satisfied, it is clear that the
       third factor, the existence of clear error as a matter of law, should be given
       substantial weight.


Accord State ex rel. U.S. Bank Nat’l Ass’n v. McGraw, 234 W.Va. 687, 691-92, 769 S.E.2d

476, 480-81 (2015); State ex rel. Fillinger v. Rhodes, 230 W.Va. 560, 564, 741 S.E.2d 118,

122 (2013).



                                        III. Discussion

       Pursuant to W.Va. Code, 58-5-30 [1998], the State, on the application of the Attorney

General or the prosecuting attorney, is afforded a direct appeal to this Court from an order

dismissing an indictment. A direct appeal, however, pertains to instances where the

indictment was dismissed for specific deficiencies, such as the failure to put the defendant

on fair notice of the offense charged and the elements thereof, or the failure to enable the

defendant to later assert a plea of acquittal or conviction. See State ex rel. Lorenzetti v.


                                                5

Sanders, 235 W.Va. 353, 367, 774 S.E.2d 19, 33 (2015). Here, the indictment charging the

defendant with threatening to commit a terrorist act complied with those requirements.4

Nevertheless, the circuit court dismissed the indictment, with prejudice, for other reasons,

i.e., the nature of the defendant’s alleged threat as described to the grand jury. Consequently,

the State’s petition for a writ of prohibition is the appropriate method to challenge the circuit

court’s ruling. See State ex rel. State of W.Va. v. Gustke, 205 W.Va. 72, 76, 516 S.E.2d 283,

287 (1999) (The writ of prohibition “is an appropriate method for the State to challenge the

dismissal of an indictment.”).



       During a pretrial hearing conducted in January 2017, the circuit court noted that the

defendant’s statement apparently fit the elements of W.Va. Code, 61-6-24(b) [2009], which

the circuit court stated are straightforward. Those elements are set forth in subsection (a)(3)

of the statute as follows:

             (a)(3) “Terrorist act” means 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;



       4
         The indictment tracked the language of W.Va. Code, 61-6-24(b) [2009]. Syllabus
point 3 of State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983), holds: “An indictment for
a statutory offense is sufficient if, in charging the offense, it substantially follows the
language of the statute, fully informs the accused of the particular offense with which he
is charged and enables the court to determine the statute on which the charge is based.”
Accord syllabus point 3, Ballard v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643 (2013).

                                               6

              (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.



       The defendant raised no constitutional issue before the circuit court or any alleged

impropriety in the grand jury proceedings. There was no motion to dismiss the indictment.

The circuit court dismissed the indictment, sua sponte, solely on the basis of the indictment

in relation to the grand jury transcript. The transcript reveals that only one witness testified,

Lieutenant L. G. Skinner, Jr., who filed the criminal complaint which set forth the alleged

threat made by the defendant. The circuit court concluded, without taking evidence, that the

offense could not have occurred because the alleged terrorist activity stated in the indictment

“was aimed at shooting individuals at the school instead of conduct aimed at the civilian

population as a whole and not conduct that was directed at a branch or level of government

as a whole.”



       Manifestly, the State did not present its entire case against the defendant before the

grand jury. The State insists that the grand jury testimony the circuit court reviewed was only

presented to the extent necessary to satisfy the probable cause standard. See State ex rel.

Pinson v. Maynard, 181 W.Va. 662, 665, 383 S.E.2d 844, 847 (1989) (The function of the

grand jury “is not to determine the truth of the charges against the defendant, but to determine

                                               7

whether there is sufficient probable cause to require the defendant to stand trial.”). In fact,

the record reveals a number of potential witnesses available to either the State or the defense

who later could have shed light on the defendant’s work history and the alleged threat. Those

witnesses include the Wellsburg Middle School principal; officials at Franklin Primary

School where the defendant also worked as a custodian; Lieutenant Skinner; other

investigating or arresting officers; and the two custodians at Wellsburg Middle School.



       Moreover, prior to the circuit court’s sua sponte dismissal, the defendant filed a

number of pretrial motions, including a motion for the disclosure of exculpatory evidence and

a motion for notice of the State’s intent to use evidence under Rule 404(b) of the West

Virginia Rules of Evidence. The motions sought information to which the defendant claimed

entitlement. The information sought potentially could have been made available to the circuit

court regarding its consideration of the indictment and the nature of the State’s case against

the defendant. That opportunity was lost, however, when the circuit court preemptively

dismissed the indictment.5




       5
         In addition, Rule 7 of the West Virginia Rules of Criminal Procedure entitled
“The indictment and the information” provides in subsection (f) that a circuit court “may
direct the filing of a bill of particulars.” In State v. Counts, 90 W.Va. 338, 342, 110 S.E.
812, 814 (1922), this Court noted: “A bill of particulars is for the purpose of furnishing
details omitted from the accusation or indictment, to which the defendant is entitled
before trial.” Here, that option was not pursued prior to the dismissal of the indictment.

                                              8

       Nevertheless, the defendant asserts that, in dismissing the indictment, the circuit court

fulfilled its role as gatekeeper, “charged with ensuring that any indictment returned by the

grand jury is based upon a valid quantum of proof.” However, this Court held in the syllabus

of Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977): “Except for willful, intentional

fraud the law of this State does not permit the court to go behind an indictment to inquire into

the evidence considered by the grand jury, either to determine its legality or its sufficiency.”

(emphasis added) Accord syl. pt. 2, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383

S.E.2d 844 (1989). See Howard B. Lee, The Criminal Trial in the Virginias, § 19 (2nd ed.

Michie 1940) (citing West Virginia cases for the principle that, when an indictment is

returned by a grand jury, “the presumption is that it was found upon sufficient and proper

evidence” and that, if there was any legal evidence before the grand jury, “the court will not

inquire into its sufficiency; nor will it quash the indictment in such a case because some

illegal evidence was also received.”).



       In State v. Yocum, 233 W.Va. 439, 759 S.E.2d 182 (2014), this Court rejected a

constitutional challenge to the terrorism-threat statute but reversed the defendant’s conviction

on the basis of insufficiency of the evidence at trial. Yocum involved a domestic violence

incident after which the defendant threatened to sexually assault the daughter of the arresting

police officer. Based on the comment, the defendant was tried and convicted of threatening

to commit a terrorist act. In Yocum, this Court found no merit in the defendant’s claim that


                                               9

the statute was void-for-vagueness and unconstitutional. However, because the defendant’s

threat was directed at a single individual, the arresting officer, this Court concluded that the

State failed to prove, pursuant to W.Va. Code, 61-6-24, that the defendant’s threat was

directed at intimidating or coercing a branch or level of government. This Court noted, in

Yocum, that the defendant made the comment while “under arrest, handcuffed, and in the

patrol car.” 233 W.Va. at 447, 759 S.E.2d at 190. Yocum, which concerned a conviction

following a jury trial and not a challenge to the indictment, is dissimilar to the current matter.6




       A sufficiency of the evidence challenge regarding a jury trial was rejected by this

Court in State v. Randles, 2015 WL 5125780 (Memorandum Decision, W.Va. Aug. 31,

2015). In Randles, this Court affirmed the defendant’s conviction of threatening to commit

a terrorist act where the defendant stated that she would bomb the Town of Sutton, West

Virginia, if the juvenile proceedings against her granddaughter were not dismissed. We

stated in Randles:




       6
           Syllabus point 2 of State v. Yocum holds:

              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.

                                                10

       [T]he jury could have reasonably concluded that petitioner’s statement was
       intended to affect the judicial branch of government by intimidation or
       coercion because petitioner specifically stated that she would bomb the town
       of Sutton if her granddaughter’s case was not dismissed. * * * The statute
       under which petitioner was convicted does not require petitioner to specifically
       intend to commit the act or that someone perceive the threat as real.


       Here, the defendant is charged with threatening that, if more work were placed on him,

he would “get a gun and start taking people out.” Any variation of the alleged statement, e.g.,

that he threatened to get a gun “and start shooting people at the school,” is a matter of proof

which would have followed had the case proceeded in due course.7 The circuit court’s

determination that the defendant’s threat “to individual persons at the school” was not

directed at a branch or level of government is simply not accurate. Wellsburg Middle School,

Franklin Primary School, and the defendant’s employer, the Brooke County Board of

Education, are government entities. Moreover, unlike Yocum, the defendant’s threat was not

directed at a specific individual. Instead, the defendant made the alleged threat to unspecified

others in response to his duties being changed and also in an attempt to influence future

changes. The government entity which made the changes and which would make any future

changes was the Brooke County school system.8

       7
       Another variation of the defendant’s alleged threat is to the effect that: “If they
give me any more work to do and I can’t do it, I am going to get a gun and I’m going to
come in here and shoot people and their friends and their family.”
       8
           W.Va. Code, 62-2-8 [1923], provides:

              Where an intent to injure, defraud, or cheat is required to constitute
       an offense, it shall be sufficient, in an indictment or accusation therefor, to

                                              11

       This Court observed in State ex rel. Miller v. Smith, 168 W.Va. 745, 751, 285 S.E.2d

500, 504 (1981), that “historically the grand jury serves a dual function: it is intended to

operate both as a sword, investigating cases to bring to trial persons accused on just grounds,

and as a shield, protecting citizens against unfounded malicious or frivolous prosecutions.”

Accord State ex rel. Starr v. Halbritter, 183 W.Va. 350, 353-54, 395 S.E.2d 773, 776-77

(1990). In the current matter, the circuit court improperly interceded and supplanted the

function of the grand jury by dismissing the indictment, sua sponte, with prejudice.

Consequently, the State was deprived of its right to prosecute the case and seek a valid

conviction.9


       allege generally an intent to injure, defraud, or cheat, without naming the
       person intended to be injured, defrauded, or cheated, and it shall be
       sufficient, and not deemed a variance, if there appear to be any intent to
       injure, defraud, or cheat the United States, or any state, or any county,
       corporation, officer or person.

(emphasis added)
       9
        We note one instance, not applicable here, where a circuit court is authorized to
sua sponte dismiss an indictment. Rule 48(b) of the West Virginia Rules of Criminal
Procedure states in part:

              If there is unnecessary delay of more than one year in presenting the
       charge to a grand jury or in filing an information against a defendant who
       has been held to answer to the circuit court, that court shall, on its own
       motion, dismiss the indictment, information or complaint, without
       prejudice.

       In the present case, no delay occurred. The defendant’s alleged threat occurred in
September 2016, and the indictment was returned in November 2016. Moreover, Rule
48(b) requires a dismissal without prejudice, unlike the dismissal of the indictment “with
prejudice” in this matter.

                                              12

                                       IV. Conclusion

       The State may seek relief in prohibition in this Court where the circuit court’s action

has deprived the State of its right to prosecute a criminal case or deprived the State of a valid

conviction. Syl. pt. 1, State ex rel. Games-Neely v. Yoder, 237 W.Va. 301, 787 S.E.2d 572

(2016); syl. pt. 1, State ex rel. Sorsaia v. Stowers, 236 W.Va. 747, 783 S.E.2d 867 (2016);

syl. pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992). The State has shown

deprivation in that context, and relief in prohibition is warranted.



       We, therefore, prohibit enforcement of the April 17, 2017, order pursuant to which the

circuit court dismissed the indictment against the defendant. The indictment is reinstated,

and this matter is remanded to the circuit court for further proceedings.




                                                                                   Writ granted.




                                               13

