State of West Virginia v. James Scott Yocum

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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