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No. 35520 - State of West Virginia v. Dennis R. Gibson
Ketchum, J., dissenting:
Every member of this Court agrees that domestic violence is a scourge on
society, one that should be forthrightly addressed by the law. However, I respectfully
disagree with the majority opinion's conclusion that W.Va. Code, 61-2-28(d)  is clear
and unambiguous. I believe that the statute is poorly drafted, vague and should be
thoroughly rewritten by the Legislature.
As it is currently written, W.Va. Code, 61-2-28(d) can be given two reasonable
interpretations. W.Va. Code, 61-2-28(d) states:
Any person who has been convicted of a third or subsequent
violation . . . of this section . . . is guilty of a felony if the
offense occurs within ten years of a prior conviction of any of
these offenses . . .
The circuit judge read this statute to mean that only prior convictions occurring within 10
years may be considered in deciding whether a person is guilty of a third offense. The
majority opinion, however, reads this statute to say that if the current third offense occurs
within 10 years of any one of the prior convictions, then the current offense can be a third-
I believe that the majority opinion is wrong because of the long-standing,
constitutional rule that criminal statutes are always to be construed against the State, not in
favor. Our rule in reading criminal statutes is well established: Penal statutes must be
strictly construed against the State and in favor of the defendant. Syllabus Point 3, State ex
rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970). See also, Syllabus Point 1,
Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978) (Ambiguous penal statutes must
be strictly construed against the State and in favor of the defendant.); Syllabus Point 2, State
v. Riley, 158 W.Va. 823, 215 S.E.2d 460 (1975) (Penal statutes are strictly construed against
the state and favorably for the defendant.); Syllabus Point 1, State v. Larkin, 107 W.Va. 580,
149 S.E. 667 (1929) (It is a general rule that a penal statute will not be extended by
construction, but must be limited to cases clearly within its language and spirit.).
The circuit court correctly found that W.Va. Code, 61-2-28(d) is vague,
ambiguous, and subject to different reasonable interpretations. I therefore respectfully
dissent from the majority's opinion.
I am authorized to state that Justice McHugh joins in this dissent.