Reaffirming the Evidentiary Burden for Defense Jury Instructions and Limited Sentencing Review in Sex Offender Registration Cases: Commentary on State v. West Virginia v. Christopher T. Cook

I. Introduction

The memorandum decision in State of West Virginia v. Christopher T. Cook, No. 23-543 (W. Va. Nov. 25, 2025), issued by the Supreme Court of Appeals of West Virginia, affirms a conviction and substantial sentence for two counts of second-offense failure to update sex offender registration information. Though designated as a memorandum decision under Rule 21(c) of the West Virginia Rules of Appellate Procedure, and thus intended as an application of settled law to specific facts, the case is instructive on two recurring issues:

The evidentiary foundation required before a criminal defendant is entitled to a jury instruction embodying a defense theory, particularly where the defense rests on alleged failures by law enforcement; and
The strict limits on appellate review of criminal sentences that fall within statutory ranges, absent proof that the sentencing court relied on impermissible factors.

The petitioner, Christopher T. Cook, a lifetime sex offender registrant with a prior conviction for failure to register, was charged and convicted for failing to update his address and phone number. On appeal, he raised two principal issues:

That the circuit court erred in refusing his proposed jury instruction directing an acquittal if the West Virginia State Police failed in their duties to collect updated registration information; and
That his concurrent sentences of ten to twenty-five years on each count were unconstitutionally disproportionate to his conduct.

The Supreme Court rejected both arguments. It held that the record lacked sufficient evidence to support the factual predicate for the proposed instruction and that the sentence, being within the statutory range and not shown to be based on impermissible factors, was not subject to appellate review.

This commentary examines the factual background, summarizes the decision, analyzes the use and application of precedent, explains the court’s reasoning, clarifies key legal concepts, and evaluates the likely impact of the decision on future sex offender registration and sentencing cases in West Virginia.

II. Summary of the Memorandum Decision

A. Factual Background

Mr. Cook’s underlying status as a sex offender stems from his 2003 guilty plea to third-degree sexual assault, which required him to register as a sex offender for life. In 2018, he was convicted of first-offense failure to register as a sex offender and sentenced to one to five years’ imprisonment.

Following his release, West Virginia State Police Sergeant S.A. Nazelrod conducted a routine investigation in March 2022. At Cook’s last known registered address on Martinsburg Road in Morgan County, Nazelrod found no one present and discovered that the phone number on file had been disconnected. After leaving a note on the door, he received a call from Sarah Henry, a former friend of Cook’s, who reported that Cook had moved out of the residence by December 2021.

In September 2022, Cook was indicted on two counts of second-offense failure to update sex offender registration for failing to report his change of address and change of phone number.

Before trial, Cook moved to dismiss the indictment, arguing that the West Virginia State Police had failed to comply with administrative rules governing sex offender registration, particularly their duty to accept updated registration information when a registrant appears at a detachment. He claimed he had gone to the Berkeley Springs detachment within the ten-day period allowed for updating his information, but was told by a secretary that he could not register then and had to make an appointment.

At a hearing on that motion:

Defense counsel proffered that Cook had attempted to register and had been turned away.
No actual evidentiary support (e.g., testimony, documents) was presented to substantiate this assertion.
The circuit court denied the motion, deeming the issue of whether Cook attempted to comply a factual question for the jury, not a basis for dismissal as a matter of law.

B. Trial Evidence

At trial:

For the State:
- Sergeant Nazelrod testified regarding his investigation and the failure to locate Cook at the registered address or via the listed phone number.
- Sarah Henry testified that Cook had lived with her on Martinsburg Road, had moved out by December 2021, and that she had reminded him of his obligation to keep the State Police informed of changes to his registration information.
For the Defense:
- The only defense witness was Cook’s girlfriend, Stevie Cornell. She testified that she drove Cook to the State Police detachment on two occasions in November or December 2021 so that he could update his registration, but she did not know what transpired inside the detachment or whether he was turned away.
- Cook himself did not testify.
State’s Rebuttal:
- Lisa Johnson, an employee at the Berkeley Springs detachment, testified that she was the sole person responsible for scheduling sex offender registration appointments and that she had no knowledge of Cook being denied the opportunity to register.
- She further testified that she had never told a sex offender who came to update registration information to leave and come back.

C. The Disputed Jury Instruction

After the close of evidence, Cook requested a jury instruction stating that:

If the West Virginia State Police failed in its duties to collect sex offender registry information from the Defendant according to West Virginia or Federal law then you must find the Defendant not guilty.

The circuit court refused this instruction, reasoning:

The law places the burden on the defendant to register.
Even assuming that Cook appeared at the detachment and was directed to make an appointment and return later, that fact would not negate his statutory duty to register or provide a defense to the charge.

The jury thereafter convicted Cook on both counts. The court sentenced him to two concurrent terms of ten to twenty-five years imprisonment, in accordance with West Virginia Code § 15-12-8(c), governing second or subsequent offenses for failure to update registration information.

D. Appellate Issues and Holding

On appeal, Cook raised two claims:

The circuit court erred in refusing his proposed jury instruction tying acquittal to any failure by the State Police to collect his registration information.
His sentence was unconstitutionally disproportionate under Article III, § 5 of the West Virginia Constitution.

The Supreme Court:

Applied established standards on jury instructions and held that Cook had not provided sufficient evidence to justify his requested defense instruction. Accordingly, the refusal of the instruction was not an abuse of discretion.
Relied on State v. Goodnight to conclude that, because Cook’s sentence fell within the statutory range and he did not allege that the court relied on impermissible sentencing factors, the sentence was not subject to appellate review.

The Court therefore affirmed Cook’s convictions and sentences.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996)

The Court cited Syllabus Point 1 of Hinkle for the standard of review regarding jury instructions:

As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo.

Hinkle distinguishes two inquiries:

Abuse of discretion in refusing a particular instruction—focused on how the trial court exercised its judgment.
De novo review of whether the instructions as a whole correctly stated the law.

In Cook, the Court primarily applies the abuse-of-discretion lens, examining whether the factual record justified Cook’s requested instruction. The Court notably declines to decide whether the instruction was legally sound if the factual premise had been proven, indicating a narrow, fact-based resolution.

2. State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996)

LaRock is referenced (via Hinkle) for the general rule that:

A criminal defendant is entitled to an instruction on the theory of his or her defense if he or she has offered a basis in evidence for the instruction, and if the instruction has support in law.

This two-part requirement is critical:

Evidence-based requirement: There must be some evidentiary foundation in the record supporting the defense theory.
Legal support requirement: The proffered instruction must accurately reflect a viable legal defense or principle.

In Cook, the Court rests its holding on the first prong. It expressly avoids engaging with the second—whether law enforcement’s failure to comply with administrative registration procedures, if proven, would constitute a complete defense, partial defense, or something else.

3. State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994)

Syllabus Point 12 of Derr provides:

Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution.

This standard is significant in two respects:

The inquiry into whether an instruction is warranted is itself discretionary.
In evaluating that question after a conviction, the appellate court resolves factual inferences in favor of the prosecution, not the defendant.

In Cook, the Court invokes Derr to emphasize that, post-conviction, it must read the record in a way most favorable to the State when assessing whether Cook had generated sufficient evidence to warrant his instruction. Under that deferential posture:

Cornell’s limited testimony (she only knew she drove him to the detachment; not what occurred inside) did not establish that law enforcement refused to register him.
Johnson’s testimony, if anything, affirmatively contradicted the notion that sex offenders are turned away.

Hence, the Court found no abuse of discretion in the trial judge’s refusal.

4. State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982)

For sentencing, the Court relies on Syllabus Point 4 of Goodnight:

Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.

This principle sharply limits proportionality review in West Virginia in routine sentencing appeals. The Court reiterates that as long as:

The sentence is within the statutory range; and
The sentence is not based on impermissible considerations (e.g., race, sex, religion),

the appellate court will not engage in a substantive review of the length or perceived harshness of the sentence.

In Cook, the concurrent ten-to-twenty-five-year sentences are precisely the penalties specified in West Virginia Code § 15-12-8(c) for a second or subsequent offense of failure to update sex offender registration information. Cook also did not allege that the trial court relied on impermissible factors. Goodnight therefore foreclosed his proportionality challenge.

5. State v. Moles, No. 18-0903, 2019 WL 5092415 (W. Va. Oct. 11, 2019) (memorandum decision)

Although also a memorandum decision, Moles is cited for its description of the types of impermissible factors that can make a sentence reviewable or unconstitutional:

Impermissible factors include “race, sex, national origin, creed, religion, and socioeconomic status . . . .”

By citing Moles, the Court clarifies that absent such discriminatory or constitutionally suspect considerations, even severe sentences for registration violations will generally not be disturbed if they fall within bounds set by the Legislature.

6. Statutory and Regulatory Framework

The decision also relies on several non-case authorities:

West Virginia Code § 15-12-8(c): Prescribes penalties for “failure to update changes to sex offender registration information, second or subsequent offense,” setting the range at ten to twenty-five years of imprisonment. This is the statutory basis for Cook’s sentence on each count.
West Virginia Code of State Rules § 81-14-13.4: Provides that when a previously registered sex offender arrives at a State Police detachment to report a change of address or any change in registration information, the detachment commander (or another uniformed member in his/her absence) shall take the information. This regulation underpins Cook’s attempted defense that the State Police failed their own duties by allegedly making him leave and return by appointment.
West Virginia Constitution, art. III, § 5: Contains the state’s guarantee against cruel and unusual punishment. Cook invoked this provision to argue his sentence was disproportionate, but the Court, through Goodnight, held the issue non-reviewable given that the sentence was statutory and no impermissible factor was alleged.

B. The Court’s Legal Reasoning

1. The Jury Instruction Issue

The core of the Court’s reasoning on the jury instruction dispute can be organized into three key steps:

(a) Identifying the Governing Legal Standard

The Court begins by restating the controlling principles from Hinkle, LaRock, and Derr:

Refusal to give a requested instruction is reviewed for abuse of discretion.
A defendant is entitled to an instruction on a theory of defense only if:
- There is a factual basis in the evidence; and
- The theory is legally supported.
In evaluating whether a factual basis exists to justify an instruction after conviction, the evidence is viewed in the light most favorable to the prosecution.

This sets up a high bar for Cook: he must show that the record, construed favorably to the State, nevertheless contained sufficient evidence to require his proposed instruction.

(b) Focusing on the Factual Predicate, Not the Legal Validity

An interesting feature of the decision is the Court’s express choice not to decide whether Cook’s requested instruction was legally sound, even if his factual premise had been proven. The opinion states:

Without weighing in on the legal basis for the petitioner’s requested instruction, we find that the evidence did not support his entitlement to it and so find that the court did not err in refusing to give the petitioner’s requested instruction.

This is a carefully limited holding. The Court sidesteps potentially complex questions, such as:

Does a law enforcement agency’s violation of its own sex offender registration procedures create a complete defense to a registration offense?
Could such failure provide an excuse, mitigation, or basis for a lesser offense (e.g., an “impossibility” or “entrapment by estoppel” type defense)?

Instead, the Court decides on narrow, evidence-based grounds: the record simply did not support the factual theory underlying the instruction.

(c) Assessing the Evidence

Cook’s theory was that:

He timely attempted to comply with his obligations by appearing at the Berkeley Springs detachment to update his address and phone number.
The State Police unlawfully refused to accept his information in violation of W. Va. Code R. § 81-14-13.4.
Therefore, he should not be criminally liable for failing to update his registration.

To support this, Cook relied primarily on:

Defense counsel’s earlier proffer at the motion hearing that Cook had been told he could not register and had to make an appointment; and
Cornell’s testimony that she drove him to the detachment on two occasions during the relevant timeframe.

The Court notes that no evidence was introduced at the motion hearing; counsel’s proffer was not proof. At trial, Cornell’s testimony established only that:

Cook physically went to the detachment (at least according to her observations);
She did not know what was said or done by law enforcement inside the building; and
She had no personal knowledge that Cook was refused an opportunity to update his information.

Moreover, Johnson’s testimony directly refuted any inference that registrants are being turned away:

She managed all sex offender registration appointments;
She had no record or memory of Cook being turned away; and
She testified she had never told a sex offender who came to update information to leave and come back.

Viewed in the light most favorable to the State, the record did not establish that:

Cook actually attempted to register;
He communicated his need to update his address and phone number; or
The State Police refused to take the information despite his attempt, as opposed to him simply failing to complete the process.

Because the factual premise of the instruction—State Police failure to perform a mandatory administrative duty—was unsupported by the evidence, the Court held that the circuit court did not abuse its discretion by refusing to give a “must acquit” instruction premised on that scenario.

In doing so, the Court implicitly underscores a fundamental point: jury instructions must be grounded in the evidence actually admitted at trial, not in hypothetical or unproven assertions about what might have occurred.

2. The Sentencing Proportionality Issue

(a) The Constitutional Claim

Cook argued that his concurrent ten-to-twenty-five-year sentences for failing to update his sex offender registration information were unconstitutionally disproportionate under Article III, § 5 of the West Virginia Constitution, which prohibits cruel and unusual punishments.

Facially, this is a nontrivial concern: a total exposure of up to twenty-five years’ imprisonment for failing to report changes in address and phone number, even as a second offender, is severe. However, the Court does not engage in any extended proportionality analysis. Instead, it applies the rule from Goodnight.

(b) Application of the Goodnight Framework

The Court’s proportionality analysis proceeds in three short steps:

It confirms that the sentence imposed is precisely that prescribed by West Virginia Code § 15-12-8(c) for second or subsequent failures to update registration.
It notes that Cook does not contend that the sentencing court relied on any impermissible factors such as race, sex, national origin, creed, religion, or socioeconomic status, as elaborated in Moles.
Under Syllabus Point 4 of Goodnight, because the sentence is within statutory limits and not based on impermissible considerations, it is not subject to appellate review.

Thus, the Court declines to consider whether, as a matter of substantive proportionality, a 10–25 year sentence is excessive for the specific conduct at issue. That question is foreclosed by the Goodnight rule absent a showing of discriminatory or otherwise unconstitutional motive in sentencing.

(c) Implications of This Approach

The approach taken:

Affirms the Legislature’s policy decision to impose extremely severe penalties on repeat sex offender registration violators.
Signals that any challenge to the harshness of such penalties must be directed primarily to the Legislature, not the courts, unless impermissible sentencing factors are present.
Maintains a bright-line rule: within-range sentences are virtually unassailable on appeal in West Virginia criminal cases absent proof of improper considerations.

C. Impact and Significance

1. On Sex Offender Registration Prosecutions

Although Cook is a memorandum decision, and thus not intended as a vehicle for establishing new legal doctrine, it has important practical implications in sex offender registration cases:

Burden of Production for “Law Enforcement Failure” Defenses:
- Defendants who claim they attempted to comply but were thwarted by police or administrative staff must present concrete, admissible evidence of such thwarting to obtain jury instructions embodying this theory.
- Mere proffers by counsel or vague testimony by companions (e.g., “I drove him there but don’t know what happened inside”) will generally be insufficient.
Limited Role of Administrative Regulations as a Defense:
- The Court does not decide whether a violation of W. Va. Code R. § 81-14-13.4 by the State Police could ever form a substantive defense.
- However, the trial court’s remark—that even being told to return by appointment would not “negate” Cook’s duty to register—suggests a judicial view that the statutory duty is primarily personal and continuing.
- Future litigants should not assume that they can escape liability merely by showing some procedural irregularity at the detachment level.
Reinforcement of Defendant’s Personal Duty:
- The decision reinforces the idea that the statutory responsibility to register and update information rests squarely and continuously on the registrant.
- Administrative difficulties, scheduling issues, or confusion will rarely, if ever, suffice as a complete defense unless they rise to the level of making compliance genuinely impossible or the State actively misleads the registrant (issues that the Court reserves for another case).

2. On Jury Instruction Practice

The decision also reaffirms and operationalizes core principles of West Virginia criminal procedure regarding jury instructions:

No Instruction Without Evidence:
- Judges are not required to give a defense instruction simply because counsel articulates a plausible theory.
- There must be actual evidence from which a reasonable jury could find the facts necessary to apply that defense.
Post-Conviction Deference:
- On appeal, after conviction, courts will resolve factual ambiguities in favor of the prosecution in deciding whether the instruction was warranted in the first place.
- Defense counsel must therefore be proactive at trial in building a clear record that supports each element of any defense theory they wish to place before the jury.

3. On Sentencing and Appellate Review

With respect to sentencing, Cook is a straightforward but powerful reaffirmation of Goodnight:

Near-Total Deference to Statutory Sentencing Ranges:
- Even severe terms of imprisonment—here, up to twenty-five years for a reporting failure—will not be substantively reviewed absent improper motive.
- This solidifies West Virginia’s posture as one of strong deference to the Legislature’s sentencing choices.
Narrow Path for Proportionality Claims:
- Defendants alleging disproportionate punishment must either:
  - Show that the sentence is outside statutory limits (e.g., illegal sentence); or
  - Demonstrate that the judge relied on forbidden grounds such as race or religion.
- Absent such showings, general fairness-based arguments will not be entertained.

IV. Complex Concepts and Terminology Simplified

1. Memorandum Decision under W. Va. R. App. P. 21(c)

A “memorandum decision” is a relatively brief appellate opinion used when:

No new or substantial legal question is presented; and
The case can be resolved by applying settled law to the facts.

Such decisions can typically be cited for their reasoning but are not intended to create new seminal precedent. Cook falls in this category: it primarily restates and applies existing standards for jury instructions and sentencing review.

2. Abuse of Discretion

“Abuse of discretion” is a deferential standard of review. An appellate court will overturn a trial judge’s decision under this standard only if:

The decision was arbitrary or irrational;
The judge failed to consider relevant factors or considered improper factors; or
The judge made a clear error in judgment beyond mere disagreement.

In Cook, the refusal to give the requested instruction was evaluated under this standard and found reasonable because the evidence did not support the instruction’s factual premise.

3. De Novo Review

“De novo” review means the appellate court considers an issue afresh, without deference to the trial court’s legal conclusions. Questions like “Did the instructions accurately state the law?” are typically reviewed de novo. By contrast, “Should this particular instruction have been given in light of the evidence?” is treated as a discretionary call.

4. Syllabus Points

In West Virginia appellate practice, “Syllabus Points” (often abbreviated “Syl. Pt.”) are numbered, headnote-style statements of law placed at the beginning of reported opinions. They are treated as authoritative summaries of the legal holdings. The Court in Cook cites several such Syllabus Points from prior cases to invoke controlling legal standards succinctly.

5. Statutory Limits and Impermissible Factors in Sentencing

Statutory Limits: The Legislature sets minimum and maximum sentences for crimes. A sentence is “within statutory limits” if it falls between the permitted minimum and maximum for that offense.
Impermissible Factors: Certain considerations, such as a defendant’s race, religion, or gender, cannot lawfully influence sentencing. If a court relies on such factors, the sentence may be unconstitutional even if it falls within the statutory range.

Under Goodnight, if a sentence is within statutory limits and no impermissible factors are shown, appellate courts in West Virginia generally will not second-guess the length of the sentence.

6. Sex Offender Registration and the Duty to Update

In West Virginia, individuals convicted of certain sex offenses must register with law enforcement, often for life. They must also:

Keep their registration current; and
Report changes in key information (like address and phone number) within a specified period—ten days, according to the rules referenced in Cook.

Failure to do so is itself a felony, and repeat violations carry increasingly severe penalties, culminating in the 10–25 year range applicable in this case.

V. Conclusion

State v. Cook does not blaze new doctrinal trails but performs an important clarifying function in West Virginia criminal law and procedure. It reaffirms that:

A defendant’s entitlement to a jury instruction on a defense theory depends on the presence of actual evidence supporting that theory, not just a plausible narrative advanced by counsel.
When a conviction has already been obtained, appellate courts will read the record in the light most favorable to the prosecution in determining whether the trial court was obliged to give a defense instruction.
The statutory duty to maintain accurate sex offender registration information is a personal and continuing obligation, which is not easily negated by alleged administrative obstacles—especially where proof of those obstacles is thin or nonexistent.
Under Goodnight, as reinforced here, West Virginia appellate courts will not review the substantive harshness of a sentence that lies within statutory limits, absent a showing that constitutionally impermissible factors infected the sentencing decision.

For practitioners, Cook underscores the importance of building a robust evidentiary record at trial to support any defense theory, particularly those that shift blame to governmental actors, and of recognizing the narrowness of appellate avenues to challenge within-range sentences, even when those sentences appear severe relative to the underlying conduct.

In the broader legal landscape, while Cook is a memorandum decision, it offers a concrete example of how West Virginia courts apply well-established principles to sex offender registration enforcement: evidentiary rigor at the trial level, strong deference to legislative sentencing policy, and a clear insistence that registrants bear primary responsibility for complying with the law.

Reaffirming the Evidentiary Burden for Defense Jury Instructions and Limited Sentencing Review in Sex Offender Registration Cases: Commentary on State v. Cook