No. 12-1309 – State of West Virginia v. James Scott Yocum

                                                                             FILED
                                                                          May 12, 2014
                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA


Benjamin, Justice, dissenting:



       The majority is mistaken when it concludes that the horrific bodily injuries

threatened by the petitioner to the loved ones of Sergeant A.H. are not terroristic acts

under W. Va. Code 61-6-24. A threat on the official who executes the laws in his status

as an official is a threat to a level of the executive branch of government. I therefore

dissent.



       It was not error to prosecute the petitioner under W. Va. 61-6-24. It is a purpose of

the statute to criminalize retaliation by the making of a threat of serious bodily injury

designed to intimidate or coerce. Sergeant A. was acting in an official manner exercising

the police power of the government at all times during the petitioner’s interaction with

him. Indeed, Sergeant A. was performing the official duties delegated to him when he

arrested petitioner for domestic violence. It was to this officer, acting in his official

capacity, that petitioner made despicable threats meant to intimidate or coerce him. The

majority finds that an individual police officer does not constitute a level of government

under the statute. I disagree. This was not a citizen’s arrest, nor was Sergeant A. at any

time acting in anything other than an official capacity. Indeed, it is undisputed that the

arrest of the petitioner by Sergeant A. was a valid exercise of the police power of the state

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through its executive function. To whom or what would the majority believe a valid

terroristic threat in such a setting should instead be made? The governor? The police

department? The executive branch can only function by and through its employees acting

in their official capacities. It is simply absurd therefore to contend that Sergeant A. was

anything but a personification of the executive level of government at all times during his

interaction with petitioner.



       That petitioner’s threats were to specific family members of Sergeant A. rather

than to the general public is likewise of little consequence. What more impact could

petitioner have made in attempting to intimidate or coerce Sergeant A. than making

threats deeply personal to Sergeant A? In personalizing the violence which he intended to

visit upon Sergeant A.’s loved ones, petitioner clearly sought to maximize the terror felt

by Sergeant A. and thereby maximize his intimidation of him in the execution of his

official duties.



               Finally, while I recognize that reasonable persons can disagree on the

construction of W. Va. Code § 61-6-24, I find that the majority opinion’s hostility toward

Sergeant A. for reporting the petitioner’s threat is nothing short of bizarre. The facts show

that Sergeant A. did his duty. He arrested the petitioner for domestic violence and

reported the petitioner’s threat to the prosecutor. Nevertheless, the majority refers to

Sergeant A. as “overly-zealous” and intimates that a seasoned officer like Sergeant A.

should not be so thin skinned in giving credence to “empty” threats. Why should

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Sergeant A. consider the threat empty when he was arresting the petitioner for domestic

violence? Obviously, Sergeant A. had good reason to believe that the petitioner is a

violent person. Also, considering Sergeant A.’s knowledge that the petitioner is a violent

person, why should Sergeant A. presume that his family was in no danger? The majority

implies that putting up with violent threats against his or her family members is part of a

police officer’s daily routine, and police officers simply should shrug off such threats and

go about their business. Perhaps such threats against other public actors doing their

official duties should likewise be considered to be empty threats; actors such as teachers,

firefighters, legislators and, perhaps, even judges.



       So, at the end of the day, where are we with petitioner’s threat to viciously attack

Sergeant A.’s loved ones simply because Sergeant A. did the job we ask of him? The

petitioner is left to laugh. He pulled off a good one and got away with it. Sergeant A. is

left to worry and perhaps hug his family a bit tighter. And us? We’re left by the majority

to believe that this is what the legislature intended. Petitioner’s threats should have

consequences and I believe the legislature thought so too. I therefore dissent.




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