No. 12-0256 - State of West Virginia v. Ronald Goins
                                                                        FILED
                                                                  September 12, 2013
                                                                      released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
LOUGHRY, Justice, concurring:                                           OF WEST VIRGINIA




              I agree with the majority’s conclusion that the petitioner’s multiple convictions

of brandishing may not be upheld on the basis of the number of victims present when he

discharged his weapon. Moreover, I agree that the operable “unit of prosecution” under West

Virginia Code § 61-7-11 (1994) is a “breach of the peace” occasioned when a defendant

“carr[ies], brandish[es], or use[s]” a firearm or other deadly weapon. And while I do not

believe that the evidence adduced at the petitioner’s trial was sufficient to justify multiple

convictions of brandishing, I disagree strongly with the majority’s conclusion, albeit dicta,

that multiple violations of the brandishing statute cannot occur when a defendant fires

multiple shots from a firearm. The majority dismissively characterizes this position as

“absurd,” without so much as a hint of analysis or supporting case law.



              The majority undertakes a proper analysis of our prior cases which gives

direction as to determining the “unit of prosecution” for Double Jeopardy purposes and

concludes, properly, that the number of victims is irrelevant to the number of offenses which

may be charged under the brandishing statute—a conclusion this Court had already reached




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in State v. Kendall, 219 W. Va. 686, 639 S.E.2d 778 (2006).1 In so doing, it gives short shrift

to the State’s more compelling argument that the petitioner’s conviction should be upheld

on the basis of the number of shots fired and thereby overlooks a remarkably similar case

recently authored by Justice Workman which presents a thorough and well-reasoned analysis

of precisely this issue.



               In State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012), the defendant

stabbed his wife numerous times during an argument in their home, resulting in his

conviction of multiple counts of malicious assault. On appeal, McGilton asserted that

conviction of three counts of malicious assault for three stab wounds inflicted during the

same course of conduct violated Double Jeopardy. In addressing this issue, the Court quickly

isolated and highlighted the necessary analysis for determining if multiple, discrete acts that

occur during a short period of time may sustain multiple convictions:

               He [McGilton] would have this Court make an ironclad ruling
               that as a matter of law anytime a person is stabbed multiple
               times, by the same person, within a short period of time, that the
               perpetrator of the crime can only be guilty of one malicious
               assault. Moreover, the petitioner asks this Court to make such

1
 This Court recently reached a similar conclusion in State v. Stone, 229 W.Va. 271, 728
S.E.2d 155 (2012), holding that a defendant who leaves the scene of an accident where there
are multiple victims can be charged for only one violation of W. Va. Code § 17C-4-1. In
Stone, the Court focused on the particular language of the statute which requires one to
render aid to “any person injured in [an] accident,” concluding that “any” connoted a
Legislative intent to prosecute only one violation of the statute regardless of multiple
victims. Id. at 278, 728 S.E.2d at 162. The Court further found such construction in accord
with a majority of other jurisdictions. Id. Stone, however, did not address the issue of
whether successive, discrete violations of the statute would support multiple convictions.

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              a conclusion 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 (emphasis added). We noted that our prior decisions

demonstrate 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

(emphasis added). We found unavailing the notion that a perpetrator could systematically

maim or disfigure a victim with successive actions “each time forming the requisite intent,”

yet elude more than one charge of malicious assault. Id. at 566, 729 S.E.2d at 888. Other

courts have similarly found that rewarding a defendant who chooses to commit additional

acts, rather than “limit[ing] his or her criminal activity” merely “encourages additional

criminal activity.” Id. Rejecting a similar argument in the context of multiple sexual

assaults, the Court of Appeals of Virginia found that a defendant should not be permitted a

“free rape” where each rape was “readily divisible[,]” and the defendant simply “cho[se] to

repeat his crime on the same victim within a short period of time.” Carter v. Commonwealth,

428 S.E.2d 34, 42 (Va. Ct. App. 1993). To that same end, we concluded in McGilton 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.

229 W. Va. at 566, 729 S.E.2d at 888. We therefore held that

              [a] defendant may be convicted of multiple offenses of

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              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.

Syl. Pt. 9, id. (emphasis added).



              Our brandishing statute provides that “[i]t shall be unlawful for any person

armed with a firearm or other deadly weapon, whether licensed to carry the same or not, to

carry, brandish or use such weapon in a way or manner to cause, or threaten, a breach of the

peace.” W. Va. Code § 61-7-11 (emphasis added).           Like our malicious assault statute

addressed in McGilton, there is no language in our brandishing statute that would preclude

a second charge of brandishing when a second brandishing actually occurs within a short

period of time, complete with the requisite separately formed intent. See, e.g., Kendall, 219

W.Va. at 696, 639 S.E.2d at 788. (“There did not appear to be any evidence of multiple acts

of brandishing or specific instances of threats against separate individuals.” (emphasis

added)). Both the conduct—“to carry, brandish or use” a firearm or deadly weapon—and

the result of the conduct—a breach of the peace—are phrased in singular terms, evidencing

“a legislative intent to punish each violation of the statute separately.” McGilton, 229 W. Va.

at 566, 729 S.E.2d at 888. Certainly, 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


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cause separate and distinct breaches of the peace—should not constitute additional violations

of the statute where a jury finds a separately formed intent.



              Without question, the notion that multiple shots from a firearm may constitute

complete and distinct offenses is widely recognized, to the extent that the requisite intent was

formed each time. As articulated in Stephens v. Commonwealth, 543 S.E.2d 609, 612 (Va.

Ct. App. 2001), “[e]ach act of firing the weapon constituted a separate, distinct act,

notwithstanding how closely the second shot followed the first. Each shot required a

conscious decision [] to pull the trigger.” See also State v. Rambert, 459 S.E.2d 510, 513 (N.

C. 1995) (“[D]efendant’s actions were three distinct and, therefore, separate events. Each

shot . . . required that defendant employ his thought processes each time he fired the

weapon.”); State v. Miranda, 10 P.3d 1213, 1217 (Ariz. Ct. App. 2000) (holding that three

successive shots supported three separate convictions); Gray v. United States, 585 A.2d 164,

165 (D.C. 1991) (holding that as to three separate shots into a dwelling, each shot constituted

a separate offense); People v. Harris, 695 N.E.2d 447, 457 (Ill. 1998) (finding as to two

consecutive shots into a vehicle each shot constituted a “discrete physical act”); State v.

Morrow, 888 S.W.2d 387, 392–93 (Mo. Ct. App. 1994) (“The conduct proscribed is

complete on one shot. A subsequent shot, whether moments or a substantial amount of time

later, creates the same danger which the statute was intended to prevent.”).2

2
 See also Blockberger v. United States, 284 U. S. 299 (1932). Although, as explained in
McGilton, the Blockberger analysis is inapplicable to multiple convictions under the same
statute, the Blockberger Court nevertheless reiterated the above-described concept:

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               That said, I agree, however, under the evidence presented in the underlying

case, that such a conviction cannot stand. Quite simply, the State did not offer proof beyond

a reasonable doubt that the petitioner breached the peace with five separate shots, each time

forming the requisite intent required under the brandishing statute. Moreover, neither the

indictment nor jury instructions, which were all phrased in terms of individual victims,

permits this Court to conclude otherwise. It is a dangerously overreaching conclusion,

however, 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. Regardless, it is

precisely this conclusion that the majority summarily reaches, without undertaking the same

“unit of prosecution” analysis to which it dedicates the remainder of its opinion to form the

basis of its partial reversal.



               Notwithstanding the foregoing and for the reasons stated herein, I respectfully

concur in the majority’s holding and decision to reverse four counts of brandishing and

remand for resentencing. I am authorized to state that Justice Workman joins in this

concurrence.




“‘[W]hen the impulse is single, but one indictment lies, no matter how long the action may
continue. If successive impulses are separately given, even though all unite in swelling a
common stream of action, separate indictments lie.’” Id. at 302.

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