Darrell V. McGraw, Jr.
Dreama D. Sinkkanen
Attorney General Public Defender Corporation
Jeffrey G. Blaydes Clarksburg, West Virginia
Deputy Attorney General Attorney for the Appellant
Attorneys for the Appellee
JUSTICE ALBRIGHT delivered the opinion of the Court.
JUSTICE MAYNARD dissents.
1. Prior domestic violence convictions in other states may be used to enhance
the penalty for subsequent domestic violence convictions under West Virginia Code § 61-2-
28 (1994) (Repl.Vol.2000).
2. An out-of-state conviction may be used as a predicate offense for penalty
enhancement purposes under subsection (c) of West Virginia Code § 61-2-28 (1994)
(Repl.Vol.2000) provided that the statute under which the defendant was convicted has the
same elements as those required for an offense under West Virginia Code § 61-2-28. When
the foreign statute contains different or additional elements, it must be further shown that the
factual predicate upon which the prior conviction was obtained would have supported a
conviction under West Virginia Code § 61-2-28(a) or (b) in order to invoke the enhanced
penalty contained in subsection (c).
3. Whether the out-of-state conviction satisfies the requirements of this State's
enhancement statute is a question of law. Syl. Pt. 3, in part, State v. Williams, 200 W.Va.
466, 490 S.E.2d 285 (1997).
4. In proving the fact of an out-of-state conviction for punishment
enhancement purposes under West Virginia Code § 61-2-28(c) (1994) (Repl.Vol.2000), the
State may introduce a properly authenticated copy of the judgment of conviction that clearly
indicates a defendant's identity and the fact of conviction. The conviction order may also
include pertinent information regarding the offense and the foreign law under which the
conviction was obtained. Additional means of proof include a properly authenticated copy
of the warrant, indictment or other charging document, other comparable documents of
record, or transcripts which establish the relevant facts pertinent to the offense and the
5. Because the offense of wanton endangerment with a firearm is defined, not in terms of whether the firearm is discharged, but merely with reference to the commission of any act, the discharge of a firearm is not an element of West Virginia Code § 61-7-12 (1994) (Repl.Vol.2000).
Appellant William Glen Hulbert appeals from his convictions for third offense
domestic assault and wanton endangerment with a firearm. In challenging his conviction for
domestic assault under West Virginia Code § 61-2-28(c) (1994) (Repl.Vol.2000), Appellant
argues that a third offense conviction under this statute is only permitted when the predicate
offenses were committed in this state. Because his two prior convictions were from
Kalamazoo County, Michigan, Defendant contends that the third offense conviction cannot
be upheld. Appellant challenges his conviction under West Virginia Code § 61-7-12 (1994)
(Repl.Vol.2000) for wanton endangerment with a firearm, arguing that a required element
of that offense is a discharge of the firearm. Appellant further asserts error based on the trial
court's refusal to strike for cause a particular juror, whose voir dire testimony suggested an
increased propensity to find Appellant guilty if she was apprised of prior domestic assault
convictions. Based on our review of the record, we find no merit to Appellant's assignments
of error concerning the wanton endangerment conviction and voir dire, but we do find error
with regard to the domestic violence conviction. Accordingly, we affirm, in part; reverse,
in part; and remand for entry of a new sentencing order consistent with the holdings of this
At trial, which occurred on October 18 and 19, 1999, the State offered two
witnesses: Ms. Gowers and the arresting officer, Harrison County Sheriff's deputy Don
Quinn. Appellant did not take the stand in his own defense. Based on two prior convictions
for domestic violence in the State of Michigan, the State prosecuted Appellant for a third
offense of domestic violence--an offense which contains a built-in sentence enhancement.
See W.Va. Code § 61-2-28(c). Appellant was convicted on both counts, third offense
domestic violence and wanton endangerment. Following the sentencing hearing on
November 29, 1999, the trial court entered an order on December 9, 1999, sentencing
Appellant to one to five years for third offense domestic battery and five years for wanton
endangerment with a firearm, with the sentences to be served consecutively.
In addition, Appellant asserts that if the Legislature had intended that out-of-state domestic
violence convictions could serve as the predicate offenses for a third offense conviction,
West Virginia Code § 61-2-28(c) would have been written in terms similar to West Virginia
Code § 17C-5-2(l)(3) (1996) (Repl.Vol.2000), which expressly provides for the use of out-
of-state convictions as the predicate offenses for third offense DUI convictions.
In response to Appellant's contentions, the State argues that the language of
West Virginia Code § 61-2-28(c) suggests legislative approval for using out-of-state
convictions as predicate offenses. Citing the inclusion of the terms as defined in reference
to the offenses of domestic assault and battery, the State suggests that this statutory language
indicates an inclusive, rather than an exclusive, approach to the use of out-of-state
convictions. According to the State, the key to whether an out-of-state offense can qualify
as a predicate offense is determined by whether the foreign conviction was for an offense that
substantially parallels the elements of offenses under West Virginia Code § 61-2-28.
Furthermore, the State notes that nothing in the statutory scheme suggests that our
Legislature intended that the enhanced penalties set forth in West Virginia Code § 61-2-28(c)
would apply only when the predicate domestic violence offenses occurred within this state's
boundaries.See footnote 5
The State suggests that the exact opposite is true and cites to the enactment of
the Domestic Violence Act, West Virginia Code §§ 48-2A-1 to -14 (1998) (Repl.Vol.1999),
and its clear adoption of legislative policy aimed at both preventing and punishing domestic
violence.See footnote 6
See W.Va. Code § 48-2A-1. The State contends that the objectives of the
Domestic Violence Act should be examined as an aid to our determination of whether out-of-
state convictions can be used to enhance punishment for a domestic violence offense under
West Virginia Code § 61-2-28.See footnote 7
In stating the purpose of the Domestic Violence Act, the Legislature has
declared the following:
(1) No one should be a victim of domestic or family violence. All people have a right to be safe in their homes and in their families;
(2) Children are often physically assaulted or witness violence against one of their parents or other family or household members, violence which too often ultimately results in death. These children may suffer deep and lasting emotional harm from victimization and from exposure to domestic or family violence;
(3) Domestic or family violence is a major health and law-enforcement problem in this state with enormous costs to the state in both dollars and human lives. It affects people of all racial and ethnic backgrounds and all socioeconomic classes; and
(4) Domestic or family violence can be deterred, prevented or reduced by legal intervention that treats this problem with the seriousness that it deserves.
W.Va. Code § 48-2A-1(a).
The State convincingly posits that nothing in the objectives articulated in West
Virginia Code § 48-2A-1, or in the language of West Virginia Code § 61-2-28, evinces a
legislative concern to limit the scope of this state's policy against domestic violence to those
offenses that occur in this state. Given the legislative decision to treat repeat domestic
offenders more severely, combined with the legislative recognition of the seriousness of
domestic violence, we agree with the State's contention that permitting out-of-state domestic
violence offenses to serve as predicate offenses for enhancement purposes is consistent with
the Legislature's articulated policy of preventing and deterring domestic violence. See West
Virginia Code § 48-2A-1.See footnote 8
Upon a careful examination of the Domestic Violence Act in
conjunction with West Virginia Code § 61-2-28, we are convinced that the Legislature
intended to punish second or third instances of domestic violence more severely, regardless
of where the earlier conduct occurred. To do otherwise, would invite repeat domestic
offenders to move to this state to take advantage of the proverbial clean slate, thereby
enabling them to continue committing acts of domestic violence in this state similar to acts
they previously committed elsewhere without realizing the legislatively-intended effects of
enhanced punishment for repeat offenders. Accordingly, we hold that prior domestic
violence convictions in other states may be used to enhance the penalty for subsequent
domestic violence convictions under West Virginia Code § 61-2-28.
In the case before us, some of the elements of the Michigan law are similar to,
but not identical to, the elements required by West Virginia Code § 61-2-28. Other elements
found in the Michigan statute are completely lacking in our statute. Following the approach
adopted by this Court in Conley, we believe that the critical factor necessary for use of an
out-of-state domestic violence conviction when the foreign state's statutory elements are not
identical to ours--as is the case here--is a demonstration of the factual predicates necessary
for a conviction under West Virginia law, which requires a showing of all of the elements
necessary for an offense committed in this state. Accordingly, we hold that an out-of-state
conviction may be used as a predicate offense for penalty enhancement purposes under
subsection (c) of West Virginia Code § 61-2-28 provided that the statute under which the
defendant was convicted has the same elements as those required for an offense under West
Virginia Code § 61-2-28. When the foreign statute contains different or additional elements,
it must be further shown that the factual predicate upon which the prior conviction was
obtained would have supported a conviction under West Virginia Code § 61-2-28(a) or (b)
in order to invoke the enhanced penalty contained in subsection (c).
In response to Appellant's arguments regarding the State's failure to adequately
prove both the existence of the Michigan convictions and the similarity of the offenses, the
State relies solely on the Certificates of Conviction obtained from Michigan as evidence
of Appellant's previous convictions for domestic violence. On the question of the identity
or similarity of the elements of the Michigan offenses, the State cites the fact that the trial
court took judicial notice of the Michigan statutes and further suggests that the burden of
proof--at least the burden of going forward with the evidence--shifted to Appellant with
respect to any alleged lack of congruence between the two statutes or failure of the factual
predicates underlying the Michigan convictions to support a conviction under West Virginia
In addressing the issue of whether the Michigan and West Virginia statutes share congruent elements, it appears that the trial court did take judicial notice of a Michigan statute defining domestic violence in that state--Mich. Comp. Laws Ann. § 750.81(2), (3) (West 1994)--although the record does not make entirely clear how or when the Michigan statutes were put in evidence. Nothing in the record, however, suggests that the trial court proceeded to compare the elements required in proof of the Michigan and West Virginia domestic violence offenses.
In our most recent case addressing the use of an out-of-state conviction for sentence enhancement purposes, this Court held in syllabus point three of State v. Williams, 200 W.Va. 446, 490 S.E.2d 285 (1997), that [w]hether the out-of-state conviction satisfies the requirements of this State's enhancement statute is a question of law. Since the trial court failed to compare the statutes and make a threshold ruling on this issue, we proceed to compare the two statutes. West Virginia Code § 61-2-28 provides as follows:
(a) Domestic battery.--If any family or household member
unlawfully and intentionally makes physical contact of an
insulting or provoking nature with another family or household
member or unlawfully and intentionally causes physical harm to
another family or household member, he or she is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail for not more than twelve months, or fined not more than five
hundred dollars, or both fined and confined.
(b) Domestic assault.--If any family or household member unlawfully attempts to commit a violent injury of another family or household member or unlawfully commits an act which places another family or household member in reasonable apprehension of immediately receiving a violent injury, he or she is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail for not more than six months, or fined not more than one hundred dollars, or both fined and confined.
(c) Third offense.--A family or household member who has been convicted of a third or subsequent domestic battery and/or domestic assault as defined in this section, assault and/or battery as defined in section nine of this article when committed against a family or household member, or any combination of such offenses, is guilty of a felony if such offense occurs within ten years of a prior conviction of any of these offenses, and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than five years and fined not exceeding five hundred dollars.
W. Va. Code § 61-2-28.
In comparison, the Michigan statute, which is entitled Assault and assault and
battery; domestic assault, reads as follows, in pertinent part:
Except as provided in subsection (3) or (4), an individual who assaults and batters his or her spouse or former spouse, an individual with whom he or she has had a child in common, or
a resident or former resident of his or her household . . . is guilty
of a misdemeanor punishable by imprisonment for not more than
93 days or a fine of not more than $500.00, or both.
An individual who assaults or assaults and batters his or her
spouse or former spouse, an individual with whom he or she has
had a child in common, or a resident or former resident of his or
her household, in violation of subsection (2), and who has
previously been convicted of assaulting or assaulting and
battering his or her spouse or former spouse, an individual with
whom he or she has had a child in common, or a resident or
former resident of his or her household, in violation of this
section . . . or a local ordinance substantially corresponding to
this section or in violation of section 81a, 82, 83, 84, or 86 may
be punished by imprisonment for not more than 1 year or a fine
of not more than $1,000.00, or both.
Mich.Comp.LawsAnn § 750.81(3).
A cursory examination of the two statutes discloses at least two variances
between West Virginia Code § 61-2-28 and the Michigan statutes. The first variance we
observe arises from the fact that an offense under West Virginia Code § 61-2-28(a) and (b)
may be shown by the proof of the elements necessary to establish the crimes of battery and
assault,See footnote 10
combined with proof of the additional element, in each case, that the victim was
a family or household member. In contrast, the Michigan statute, as we read it, permits the
conviction of one who batters or assaults another person. While Michigan law uses the
term batters, rather than the term battery, our review of Michigan statutory and case law
convinces us that the same elements necessary for a battery conviction in this state would
result in a conviction for the offense of battering under Michigan law. In addition to the
fact that the statute uses the term battery in its title, battery is defined under Michigan law
as 'the willful touching of the person of another by the aggressor or by some substance put
in motion by him; or, as it is sometimes expressed, a battery is the consummation of the
assault.' People v. Bryant, 264 N.W.2d 13, 16 (Mich. Ct. App. 1978) (quoting Tinkler v.
Richter, 295 N.W. 201, 203 (1940)). Based on this definition, we conclude that evidence
supporting a conviction of battering under section 750.81 of the Michigan Compiled Laws
would similarly support a conviction of battery under West Virginia law. See W.Va. Code
61-2-9(c) (defining battery as unlawfully and intentionally mak[ing] physical contact of an
insulting or provoking nature with the person of another or unlawfully and intentionally
caus[ing] physical harm to another person).
The second variance we note is that the Michigan statute applies to one who
batters or assaults a spouse or former spouse, an individual with whom he or she has had
a child in common, or a resident or former resident of his or her household.See footnote 11
Mich.Comp.LawsAnn § 750.81(3). West Virginia's statute applies to assault and battery of
a family or household member. W.Va. Code § 61-2-28. The West Virginia statute does
not apply to a former spouse or individual with whom the accused has had a child in common
unless such person is a household member. Id. Also, a conviction obtained in Michigan
against a former resident of his or her household, who was not also a family member,
would not rest on a sufficient factual predicate to support a domestic violence conviction
under West Virginia law. Cf. W.Va. Code § 61-2-28 to Mich.Comp.LawsAnn § 750.81(2),
(3). Given these statutory variances, the factual predicates upon which the convictions in
Michigan rested must be shown in order to bring the Michigan convictions within the ambit
of the West Virginia statute for enhanced punishment of subsequent domestic violence
We next address the State's alleged failure to produce sufficient evidence of
the prior Michigan convictions. In proof of Appellant's two prior convictions for domestic
violence, the State introduced at trial as State's Exhibit 2, two Certificates of Conviction,
authenticated by the stamped certification of the Clerk of the District Court of Kalamazoo
County, Michigan. The Certificates of Conviction indicate the dates of two separate
domestic violence offenses and that Appellant entered guilty pleas to the charges of first and
second offense domestic violence. The certificates also recite the sentence Appellant
received for each conviction. Noticeably absent from each certificate, however, is any
reference to the Michigan statute under which Appellant was charged and to which he
entered each plea of guilt. Moreover, the record does not contain a warrant, indictment or
other charging document or other evidence from which it might be shown that the conduct
for which the Appellant was convicted in Michigan would support a conviction under West
Virginia law.See footnote 12
In State v. Cline, 125 W.Va. 63, 22 S.E.2d 871 (1942), this Court considered
what type of proof was necessary to establish a prior conviction for purposes of a subsequent
violation of a statute prohibiting the carrying of a revolver without a license.See footnote 13
In Cline, we
held that the former conviction could be established by produc[ing] the indictment and the
order showing the conviction and sentence. Id. at 66, 22 S.E.2d at 872-73.See footnote 14
The Supreme Court of Washington, in State v. Ford, 973 P.2d 452 (1999),
adopted a more relaxed standard for proving an out-of-state conviction. Under the
Washington Sentencing Reform Act of 1981, a range of acceptable sentences is calculated
before sentencing that depends upon both an offender score and the seriousness level of
the offense. When out-of-state convictions are involved, those offenses have to be classified
'according to the comparable offense definitions and sentences provided by Washington
law.' Id. at 455 (quoting Wash.Rev.Code § 9.94A.360(3)). In discussing the proof
necessary to admit a foreign conviction, the court in Ford stated:
The best evidence of a prior conviction is a certified copy of the judgment. However, the State may introduce other comparable documents of record or transcripts of prior proceedings to establish criminal history. (court may look at foreign indictment and information to determine whether underlying conduct satisfies elements of Washington offense).
973 P.2d at 456 (citations omitted).
Under either the standard adopted in Cline or the more relaxed standard
adopted by the state of Washington in Ford, we believe that the record and evidence adduced
in the trial below was insufficient to establish the out-of-state convictions, given the
variances between the statutes of Michigan and West Virginia and the resulting need to prove
that the factual predicate underlying the Michigan convictions would similarly support a
conviction under West Virginia law. As discussed above, neither the Certificates of
Conviction or any other evidence in the case identifies the Michigan statutes under which
Appellant was purportedly charged and convicted. The required method of proof identified
in Cline-- that the indictment or judgment order be adduced-- was not followed. Likewise,
the substitutes for those documents suggested in Ford--comparable documents of record or
transcripts of prior proceedings to establish criminal history--similarly were not introduced
into evidence. Finally, we find insufficient evidence in the record to demonstrate the factual
predicates upon which the two Michigan convictions were based. The record is utterly silent
as to the first conviction and the testimony of Ms. Gowers as to the factual predicates for the
second conviction is of problematic value.
As discussed above, determining whether another state's domestic violence
crimes have the same elements as offenses under West Virginia law is a matter of law for
decision by the trial court. See Williams, 200 W.Va. at 467, 490 S.E2d at 286, syl. pt. 3, in
part. It is incumbent upon the State to introduce the relevant statutes of the foreign states to
enable the trial court to take judicial notice of those statutes. If the elements are identical,
the trial court's determination is rendered quite simple. In such a straightforward case, where
the foreign statute and ours have identical elements, proof of the foreign statute, proof of the
identity of the defendant as being the person convicted in the foreign state, and proof of his
conviction of an identical offense are all that is required to utilize the out-of-state conviction
to enhance punishment. When, however, there are variances between the statutes, the initial
question presented is whether the foreign statute contains at least all of the elements of the
West Virginia statute. In this instance, the trial court's ruling is again easily made, even if
the foreign statute has additional elements in contrast to our laws. The decision which the
trial court must make becomes more difficult where the statutes under comparison use
different terms to refer to an element or, where, as in Conley, the foreign statute contains
either additional or broader elements, which may or may not fit the West Virginia statutory
scheme, and consequently requires proof of the underlying factual predicate relied upon to
obtain the prior out-of-state conviction.
The State asserts that where the elements of criminal offenses under
comparison differ, the burden shifts to the defendant to show either that the variances in the
out-of-state offenses, or the evidence introduced in support of the out-of-state conviction,
would not support a conviction under West Virginia law. Once it introduced the
Certificates of Conviction, the State argues that it was then incumbent on Appellant to
introduce evidence that the Michigan offenses were dissimilar, either factually or legally.
See Conley, 199 W.Va. at 690, 487 S.E.2d at 348 (holding that the burden is placed on
defendant in DUI cases to raise statutory variances in defense to sentence enhancement); see
also Williams, 200 W.Va. at 470, 490 S.E.2d at 289.
We decline to accept the State's invitation to extend the approach used in Conley and Williams to the case under consideration. In rejecting the State's theory that a defendant bears the burden of proving or disproving the fact of an out-of-state conviction, we adopt the reasoning employed by the Washington Supreme Court in Ford:
The . . . State's burden under the SRA [Sentencing Reform Act]
. . . is not overly difficult to meet. The State must introduce
evidence of some kind to support the alleged criminal history. .
. The SRA expressly places this burden on the State because it
is inconsistent with the principles underlying our system of
justice to sentence a person on the basis of crimes that the State
either could not or chose not to prove.
973 P.2d at 456 (quoting In re Williams, 759 P.2d 436 (1988) (citation omitted)). Expressly renouncing the position asserted here by the State, the Court in Ford stated further: [I]t is the State, not the defendant, who bears the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions. Id. Underpinning the Court's analysis in Ford was its recognition that fundamental principles of due process prohibit a criminal defendant from being sentenced on the basis of information which is false, lacks a minimum indicia of reliability, or is unsupported in the record. Id. (citing, inter alia, Torres v. United States, 140 F.3d 392, 404 (2nd Cir.), cert. denied, 525 U.S. 1042 (1998); United States v. Looney, 501 F.2d 1039, 1042 (4th Cir. 1974)).
In State v. Nichols, __ W.Va. __, 541 S.E.2d 310 (1999), this Court made clear
that prior convictions constitute a separate status element of the offense with which we are
dealing. In short, proving the prior convictions is a part of the guilt/innocence stage of a trial.
At the guilt/innocence stage of a trial, the due process principles which attach are both
substantial and important. See State v. Reedy, 177 W.Va. 406, 417, 352 S.E.2d 158, 169
(1986) (stating that [s]ubstantial due process protection is afforded in a recidivist
proceeding). Under longstanding rules of criminal law, the burden of alleging and proving
each element of a criminal offense beyond a reasonable doubt rests with the state and may
not be shifted to the defendant. See In re Winship, 397 U.S. 358 (1970); Bowman v.
Leverette, 169 W.Va. 589, 610, 289 S.E.2d 435, 447 (1982) (stating that '[d]ue process
commands that no man shall lose his liberty unless the Government has borne the burden of
. . . convincing the fact-finder of his guilt') (quoting In re Winship, 397 U.S. at 364); State
v. Goff, 166 W.Va. 47, 55, 272 S.E.2d 457, 463 n. 9 (1980) (stating that burden of proof
never shifts to a defendant in announcing approved burden of proof instruction patterned
after federal instruction).
Accordingly, we hold that in proving the fact of an out-of-state conviction for
punishment enhancement purposes under West Virginia Code § 61-2-28(c), the State may
introduce a properly authenticated copy of the judgment of conviction that clearly indicates
a defendant's identity and the fact of conviction. The conviction order may also include
pertinent information regarding the offense and the foreign law under which the conviction
was obtained. Additional means of proof include a properly authenticated copy of the
warrant, indictment or other charging document, other comparable documents of record, or
transcripts which establish the relevant facts pertinent to the offense and the conviction.
A trial court that is considering whether an out-of-state conviction can be used
for sentence enhancement purposes should have before it the foreign statute under which the
prior conviction was obtained to ascertain whether the foreign law contains the same
elements as the West Virginia statute at issue, or, if the foreign statute differs from ours, to
determine whether, despite any variances, the foreign conviction may still be the basis for
punishment enhancement in West Virginia. Once the trial court determines, as a matter of
law, that it is necessary to prove the factual predicate under which the foreign judgment was
obtained in order to demonstrate that such predicate is sufficient to support a conviction
under West Virginia law, the State retains the burden of proving that conduct.See footnote 15
question then presented is: Would the factual predicate upon which the foreign conviction
was obtained support a conviction under West Virginia law? Again, that is a question of law
to be answered by the Court. Finally, the question then presented as to the prior conviction
is: Did the State prove to the jury, beyond a reasonable doubt, the fact of the out-of-state
conviction and the fact that the foreign conviction was obtained on the factual predicate
necessary to the use of the foreign conviction in this state for the enhancement of punishment
for a subsequent offense? Insofar as Conley and Williams might be read to shift the burden
of going forward with the evidence or the burden of persuasion to the Defendant with respect
to a prior conviction status element of an offense in this state, they are overruled. See
Conley, 199 W.Va. 686, 487 S.E.2d 344 (1997); Williams, 200 W.Va. 466, 490 S.E.2d 285
In the case before us, the record demonstrates that the State failed to prove that
the elements of the Michigan offenses for which Appellant was apparently convicted were
identical to West Virginia's domestic violence offenses; failed to prove upon what factual
predicates the Michigan convictions were obtained; and, therefore, also failed to demonstrate
that the factual predicates upon which the Michigan convictions were obtained would prove
each of the elements of the offense as defined in West Virginia and thus support a conviction
under West Virginia Code § 61-2-28.See footnote 16
While the evidence presented is insufficient to
support a conviction for third offense domestic violence due to the problems discussed with
regard to the out-of-state conviction, there was sufficient evidence to convict Appellant of
a first offense domestic violence under West Virginia Code § 61-2-28. Accordingly, we
reverse Appellant's conviction for third offense domestic violence and remand for entry of
a new sentencing order in connection with a conviction of first offense domestic violence.
Because the offense of wanton endangerment with a firearm is defined, not in
terms of whether the firearm is discharged, but merely with reference to the commission of
any act, the discharge of a firearm is not an element of West Virginia Code § 61-7-12. Our
interpretation of this statute is in accord with that of other states that have addressed this
issue. See State v. Moore, 2000 WL 1612705, __ S.W.2d __ (Tenn. Crim. App. 2000)
(holding that firing of weapon was not an element of offense of reckless endangerment with
a deadly weapon under Tenn. Rev. Code § 39-13-103(a)-(b)); see also Bracksieck v. State,
691 N.E.2d 1273, 1275 (Ind. App. 1998) (stating that the court can envision no situation in
which pointing a loaded firearm at another person does not also create a substantial risk of
bodily injury to that person); Key v. Commonwealth, 840 S.W.2d 827, 829 (Ky. Ct. App.
1992) (recognizing that pointing of gun, whether loaded or unloaded, constitutes conduct that
creates substantial danger of death or serious injury); State v. Meier, 422 N.W.2d 381 (N.D.
1988) (upholding conviction for reckless endangerment where defendant pointed unloaded
rifle at two police officers); In re ALJ v. State, 836 P.2d 307 (Wyo. 1992) (holding that
pointing of unloaded gun at another creates violent situation supporting conviction of
reckless endangerment provided firearm not pointed for defensive purposes). Accordingly,
we finding no basis for error with Appellant's conviction on the charge of wanton
endangerment with a firearm.
This Court made clear in State v. Miller, 197 W.Va. 588, 476 S.E.2d 535
The trial court has broad discretion in determining whether to strike jurors for cause, and we will reverse only where actual prejudice is demonstrated. . . . The relevant test for
determining whether a juror is biased is whether the juror  .
. . had such fixed opinion that [he or she] could not judge
impartially the guilt of the defendant.
Id. at 605, 476 S.E.2d at 552 (citing Patton v. Yount, 467 U.S. 1025, 1035 (1984) (citations omitted). We find no abuse of discretion with the trial court's decision to permit Ms. Fullen to remain on the panel.
Based on the foregoing, we affirm Appellant's conviction on the charge of
wanton endangerment with a firearm; reverse Appellant's conviction on the charge of third
offense domestic violence; and remand for entry of a new sentencing order on the domestic
violence conviction consistent with the holdings of this opinion.
Affirmed, in part;
Reversed, in part; and
Remanded with Directions.
[I]t seems to me that the plain language of the statute is that it doesn't limit it to only offenses [committed] in West Virginia. Otherwise I think our legislature would [be] say[ing] you can beat the hell out of your wife in other states and come here and get a clean slate and I doubt that is what the legislature intended.
THE COURT: Just because he has been supposedly convicted before, you
don't think that makes him guilty this time, do you?
THE JUROR: No, that might tend to sway me though, because.
THE COURT: . . . [I]f the court instructs you that you cannot consider those other offenses on the guilt or innocence of this charge, can you apply the law to the facts as far as this one. Can you comply with that instruction of the court if I tell you not to consider those others on whether or not he did this one. Can you separate those two in your mind?
THE JUROR: I believe I can do that.