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
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.
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
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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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
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.
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
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
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:
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.