Elements‐Only Test for Predicate “Crime of Violence” under WV Code § 61-7-7(b): Excluding Conspiracy Convictions

Introduction

State of West Virginia v. Deliezha Davonte Gravely (No. 23-189, filed June 6, 2025) is a Supreme Court of Appeals of West Virginia decision addressing whether a prior conviction for conspiracy to commit first-degree robbery qualifies as a “felony crime of violence against the person of another” under WV Code § 61-7-7(b). The petitioner, Deliezha Gravely, was stopped for speeding and arrested when officers found a loaded firearm in his possession. At trial the State charged him—and the jury convicted him—of two firearm offenses (possession and carrying concealed) predicated on an earlier conspiracy conviction. The key legal issue on appeal was whether conspiracy, by its statutory elements, is inherently a “crime of violence” for purposes of prohibiting firearm possession by a previously convicted felon.

The parties:

Plaintiff/Respondent: State of West Virginia, represented by the Office of the Attorney General.
Defendant/Petitioner: Deliezha Davonte Gravely, represented by Joseph T. Harvey, Esq.

Summary of the Judgment

The Court reaffirmed the de novo standard of review for pure questions of statutory interpretation (Syl. Pt. 1, State v. Hoyle).
It applied the “elements‐only” (or categorical) test to determine whether a predicate offense qualifies as a “felony crime of violence against the person of another” under WV Code § 61-7-7(b)(1). Under that test, a court looks only to whether the statutory elements of the prior offense require “an element [that] involves the use, attempted use, or threatened use of physical force against another person.”
The Court held that a conviction for general conspiracy (WV Code § 61-10-31) does not include any element requiring violence against a person—only agreement plus an overt act—so it cannot satisfy the “crime of violence” predicate.
Accordingly, Gravely’s firearm convictions under § 61-7-7(b) and the related concealed‐carry offense under § 61-7-7(e) (both depending on a predicate violent‐felony conviction) were reversed, and the case was remanded for resentencing on the remaining counts.

Analysis

Precedents Cited

State v. Hoyle (2019): Confirms that statutory interpretation is reviewed de novo.
Chrystal R.M. v. Charlie A.L. (1995): Establishes the de novo standard where questions purely of law are presented.
State v. Less (1981): Defines the elements of general conspiracy under WV Code § 61-10-31(1): (1) agreement to commit an offense against the State; (2) an overt act by any conspirator to effectuate that conspiracy.
State v. Mills (2020): Adopts the “elements‐only” approach for determining whether a prior conviction is a “felony crime of violence” under § 61-7-7(b), and confirms that a court may not look at the defendant’s actual conduct, only the statutory elements.
United States Supreme Court authority (Johnson, Dimaya, Davis): Explains why “residual clauses”—which ask whether a crime merely “presents a risk” of violence—are unconstitutionally vague, and underscores the need for a clear element requiring force.

Legal Reasoning

1. Elements‐Only (Categorical) Test: As adopted in Mills, WV Code § 61-7-7(b)’s phrase “felony crime of violence against the person of another” must be gauged by reference to the statutory elements of the predicate offense—nothing more. If those elements include “the use, attempted use, or threatened use of physical force against the person of another,” then the prior conviction qualifies. Otherwise it does not.

2. Conspiracy Lacks a Violent Element: Under WV Code § 61-10-31(1), the crime of conspiracy requires only (a) a meeting of the minds to commit some State‐defined offense, and (b) an overt act by any conspirator toward that objective. Neither element by itself—or in tandem—necessarily involves violence. A conspirator’s contribution could be nonviolent (e.g., supplying money, transportation, or information).

3. No Risk‐Based Inquiry: The Court rejected the State’s invitation to treat conspiracy as a crime of violence because its object (robbery) is violent, or to perform a “risk of harm” analysis. Such an approach would import an unconstitutional “residual clause” into § 61-7-7(b) and conflict with the categorical approach endorsed in Mills and demanded by Johnson, Dimaya, and Davis.

Impact on Future Cases

Lower courts must strictly apply the elements‐only test when assessing prior convictions as “crimes of violence” under WV Code § 61-7-7(b) and related statutes.
Conspiracy convictions under § 61-10-31, regardless of the underlying unlawful objective, will not qualify as predicate violent felonies for § 61-7-7(b) unless the Legislature amends the statute to add a violence requirement.
Prosecutors seeking firearm‐possession enhancements must identify predicate convictions whose statutory elements unambiguously require the use or threatened use of force (e.g., robbery, assault).
This decision reinforces separation of powers: any expansion of “crime of violence” definitions must come from the Legislature, not judicial gloss or risk‐based assessments.

Complex Concepts Simplified

Elements‐Only (Categorical) Test: The inquiry is limited to what the law says must be proven for the prior crime—not what actually happened. If violence is not an element, the offense is not a “crime of violence.”
Residual Clause: A statutory catch-all that defines a crime of violence by asking whether it “presents a risk” of violence. The U.S. Supreme Court has struck down such clauses as unconstitutionally vague.
Conspiracy (WV Code § 61-10-31): Requires only (1) an agreement to commit some crime, and (2) an overt act toward that goal. No element demands bodily force or violence.

Conclusion

State v. Gravely establishes that under WV Code § 61-7-7(b), predicate offenses qualifying as “felony crimes of violence against the person of another” must include, by their statutory elements, an act of force or violence. General conspiracy, which involves only agreement and an overt (non‐specific) act, does not meet that requirement. This decision clarifies the categorical approach for West Virginia courts, protects against the constitutional vagueness inherent in risk‐based residual clauses, and confines any future expansion of “crime of violence” to legislative action.