State v. Anthony M. and the Victim-Specific Requirement to Avoid Double Jeopardy in Single-Act Firearm Cases

Introduction

This commentary analyzes Justice Armstead’s separate opinion—concurring in part and dissenting in part—in State of West Virginia v. Anthony M. (No. 22-858, W. Va. Mar. 25, 2025). The dispute centers on whether convicting and sentencing a defendant for both malicious assault and wanton endangerment with a firearm, arising from a single gunshot, violates the constitutional protection against double jeopardy. The case presents two intersecting themes:

• When separate punishments may be imposed for distinct offenses arising from one act, particularly where multiple people are exposed to harm.
• Whether a defendant forfeits or waives a double jeopardy challenge by failing to raise it before or during trial, and how the specificity of the charging documents and jury instructions affects the analysis.

The majority concluded a double jeopardy violation occurred on the record before it. Justice Armstead disagreed, arguing (1) the defendant’s double jeopardy claim was waived by his failure to raise it pretrial or contemporaneously, and (2) even on the merits, the evidence and record permitted the jury to treat the malicious assault and wanton endangerment counts as involving different victims, thereby avoiding any double jeopardy problem under the Court’s prior decision in Mirandy v. Smith.

Summary of the Opinion

Although the full majority opinion is not reproduced here, Justice Armstead’s writing allows the following high-level summary.

• Majority’s disposition (as described in the separate opinion):
  • Held that the defendant’s double jeopardy rights were violated by separate convictions for malicious assault and wanton endangerment with a firearm arising from a single gunshot that struck Brittany S.
  • Declined to apply Mirandy v. Smith’s “different victims” rationale because, in its view, the State did not sufficiently indicate that infant K.M. was the victim of the wanton endangerment count. The indictment did not name K.M. as the intended victim, and the majority was not persuaded that the record as a whole tied the wanton endangerment charge to K.M.
  • Rejected the defendant’s other assignments of error (Justice Armstead concurred in those aspects).
• Justice Armstead’s concurrence/dissent:
  • Would find no double jeopardy violation because the evidence overwhelmingly showed two potential victims—Brittany S. (struck by the bullet) and infant K.M. (in close proximity; bullet ricocheted and left fragments inside the vehicle). Under Mirandy v. Smith, separate punishments are permissible where two victims are implicated.
  • Emphasized waiver and the raise-or-waive rule: the defendant did not object to the indictment’s lack of victim identification on the wanton endangerment count, did not seek a bill of particulars, and did not object to jury instructions that identified Brittany S. as the malicious assault victim but did not identify any victim for wanton endangerment. He raised double jeopardy only in a post-trial motion.
  • Urged deference to the jury’s factual findings that supported both convictions.

Case Background and Key Issues

The State charged Anthony M. after a single gunshot struck Brittany S. The shot ricocheted within the vehicle, cracking the windshield and leaving bullet fragments on the driver’s side floorboard. Infant K.M. was in the vehicle. A jury convicted Anthony M. of malicious assault (with Brittany S. identified as the victim) and wanton endangerment with a firearm (with no named victim in the indictment or the instruction). The defendant did not lodge double jeopardy objections pretrial or during trial, but advanced that claim post-trial. The circuit court denied relief, finding the jury could reasonably view K.M. as the victim of wanton endangerment. The majority later found a double jeopardy violation; Justice Armstead disagreed.

Precedents and Authorities Cited

• Double jeopardy fundamentals:
  • State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992) (Syllabus Points 1 & 2): The constitutional protections include (1) immunity from reprosecution after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) prohibition against multiple punishments for the same offense.
  • Flack v. Ballard, 239 W. Va. 566, 803 S.E.2d 536 (2017); State v. Pancake, 170 W. Va. 690, 296 S.E.2d 37 (1982) (Syllabus Pt. 5, in part): While offenses from a single transaction should be tried together, separate punishments may be imposed for separate offenses arising from the same transaction.
  • State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983) (Syllabus Pt. 8): West Virginia applies Blockburger’s “same-elements” test—offenses are distinct if each requires proof of a fact the other does not.
• Pairing malicious assault with wanton endangerment:
  • State v. Wright, 200 W. Va. 549, 490 S.E.2d 636 (1997): On its facts, wanton endangerment was a lesser included offense of malicious assault where there was a single victim and one act; convictions for both would violate double jeopardy there. The Court limited Wright to its facts and emphasized that double jeopardy does not always bar both convictions.
  • Mirandy v. Smith, 237 W. Va. 363, 787 S.E.2d 634 (2016): Where the same act implicates different victims, malicious assault and wanton endangerment each require proof of a different victim, so both convictions can stand. The victim is part of the element-set for each offense in this context.
• Waiver/forfeiture and indictment challenges:
  • State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996) (Syllabus Pt. 1): Objections to an indictment must be raised prior to trial; absent a timely challenge, an indictment is construed in favor of validity unless it fails to charge an offense by any reasonable construction.
  • State v. Palmer, 210 W. Va. 372, 557 S.E.2d 779 (2001): The rule discourages “sandbagging”—deliberately withholding an objection to seek a later advantage.
  • State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996): The raise-or-waive rule requires contemporaneous objections to allow correction at trial and to preserve issues for appeal.
  • State v. Carroll, 150 W. Va. 765, 149 S.E.2d 309 (1966); State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876 (2012) (and Peretz v. United States, 501 U.S. 923 (1991)): Even fundamental rights, including double jeopardy, may be waived if not timely invoked.
  • Rule 7(f), W. Va. R. Crim. P.; State v. Counts, 90 W. Va. 338, 110 S.E. 812 (1922): A bill of particulars can be used to clarify indictment details—such as the identity of a victim—before trial.
• Deference to jury fact-finding:
  • State v. Easton, 203 W. Va. 631, 510 S.E.2d 465 (1998) (Syllabus Pt. 1, in part): Reviewing courts accord great deference to jury verdicts and will not reverse on the facts absent reasonable doubt of guilt due to misapprehension, passion, or prejudice.
  • State v. Duncan, 179 W. Va. 391, 369 S.E.2d 464 (1988); State v. Martin, 224 W. Va. 577, 687 S.E.2d 360 (2009): The jury is the trier of fact and sole judge of witness credibility and the weight of evidence.

Legal Reasoning

1) The Blockburger/Zaccagnini framework and the victim-as-element insight

Justice Armstead accepts the basic proposition that distinct punishments may be imposed for separate offenses even if they arise from a single act, so long as each offense requires proof of an element the other does not (Zaccagnini/Blockburger). As Mirandy explains, in the specific pairing of malicious assault and wanton endangerment with a firearm, “victim identity” can supply the distinguishing element where multiple persons are endangered by a single act. In Mirandy, different victims meant each count required proof of a fact (the identity of the person harmed or imperiled) that the other did not, and thus separate convictions did not offend double jeopardy.

By contrast, in Wright the Court viewed wanton endangerment as a lesser included offense of malicious assault on the facts presented because there was only one victim, and it was “impossible” to commit malicious assault without first committing wanton endangerment. Justice Armstead emphasizes that Wright is limited to its facts and does not establish a per se bar against dual convictions.

2) Applying Mirandy and the record here

The dissent’s core merits argument is straightforward: The evidence supported finding two victims. The bullet struck Brittany S., but also ricocheted inside the vehicle, cracked the windshield, and left fragments on the driver’s floor, while infant K.M. was inside. The circuit court summarized that any reasonable jury could find K.M. was endangered—indeed, “could have easily [been] hit”—and thus find that the wanton endangerment count targeted K.M. By that logic, Mirandy controls; with two victims, each offense includes a fact the other does not, so there is no double jeopardy violation.

The majority, however, declined to apply Mirandy because it did not see a sufficient record basis to assign K.M. as the wanton endangerment victim. Justice Armstead acknowledges the indictment did not identify the intended victim for wanton endangerment (while the malicious assault count did name Brittany S.), but he faults the defendant for not raising that issue when it could have been addressed: pretrial or during trial.

3) Waiver, forfeiture, and procedural default

Justice Armstead’s second pillar is procedural: the raise-or-waive rule. Under Miller, Rule 12(b)(2), and LaRock, objections to indictment defects and trial-level claims that can be cured must be raised before or during trial. Palmer cautions against “sandbagging.” Carroll and McGilton recognize that double jeopardy is a fundamental right that nonetheless may be waived. The remedy for any uncertainty about the wanton endangerment victim would have been to move to dismiss, move to strike, or seek a bill of particulars under Rule 7(f) to clarify (Counts). The defense pursued none of these steps and did not object to the jury instruction, which presented wanton endangerment in generic terms (“to another person”) without tying it to a named victim.

On this view, the defendant’s failure to object should have either:

• Led to a conclusion that the double jeopardy claim was waived; or
• At least triggered a highly deferential review that credits the jury’s implicit determination that K.M. was the wanton endangerment victim, consistent with the evidence and the circuit court’s reasoning.

4) Deference to jury fact-finding

Justice Armstead also relies on standard jury-deference principles (Easton, Duncan, Martin). If the jury could reasonably infer that K.M. was endangered by the single shot in a confined space, then the jury could find separate victims for the two counts. The dissent views the verdict as supported by the record and the court’s instructions, and therefore entitled to respect.

Impact and Practical Implications

A. What the majority’s resolution signals (as reflected in the dissent’s description)

The majority’s decision, as summarized in Justice Armstead’s opinion, underscores a practical requirement: When the State seeks to sustain multiple punishments for offenses arising from a single act, and it is relying on different victims to satisfy Blockburger, the identity of those distinct victims must be made sufficiently clear in the indictment, jury instructions, verdicts, or record as a whole. If the record does not reliably differentiate the victims across counts, the convictions risk being treated as multiple punishments for the same offense.

That emphasis on “victim specificity” narrows or clarifies the application of Mirandy: Mirandy permits separate punishments for malicious assault and wanton endangerment in a single-act case if the two counts are anchored to different victims, but only when the record adequately reflects that distinction.

B. Procedural posture matters: preservation versus post-trial relief

Justice Armstead’s waiver-focused analysis highlights the perennial practice point for defense counsel: double jeopardy objections that are reasonably apparent—especially those rooted in charging language and instructions—should be raised before or during trial. The failure to do so risks:

• Foreclosure of the argument under the raise-or-waive rule; or
• Appellate review that is less favorable than if preserved (even if some double jeopardy claims may be entertained later).

For prosecutors, the takeaway is the flipside: eliminate ambiguity early. A clear, victim-specific theory in the indictment and instructions both preserves Mirandy’s benefit and reduces the chance of post-verdict vulnerability.

C. Charging and instructional best practices going forward

• Indictment drafting:
  • When charging wanton endangerment alongside malicious assault from a single act, identify by name each alleged victim per count when possible.
  • Where victim identity is contested or unknown, consider a bill of particulars to lock down the State’s theory before trial.
• Jury instructions and verdict forms:
  • Mirror the indictment’s victim specification for each count so the jury’s verdict necessarily rests on the distinct-victim theory.
  • Use verdict forms that pair each count with the named victim to avoid ambiguity.
• Trial management:
  • Trial courts can proactively seek clarification on the record regarding the victim for each count, particularly when multiple charges are built on a single act.
  • Defense counsel should promptly object to ambiguous victim identifications in the indictment or instructions and, if needed, request curative measures.

Complex Concepts Simplified

• Double jeopardy (multiple punishments): The Constitution prevents punishing a person more than once for the “same offense.” When two charges arise from one act, the key question is whether they are the “same” under the law or require different elements.
• Blockburger test (Zaccagnini in West Virginia): Two crimes are different if each requires proof of at least one fact that the other does not. If not, punishing both likely violates double jeopardy.
• Lesser included offense: A crime that contains no element not included in another (greater) offense. If one is a lesser included of the other based on the facts and elements, punishing both is generally impermissible.
• Mirandy’s victim-based distinction: In single-act cases, if one count requires proof that Victim A was harmed (or endangered) and the other count requires proof that Victim B was harmed (or endangered), each offense has a different fact (the victim) and both punishments can stand.
• Raise-or-waive (procedural preservation): Parties must timely object to errors—such as indictment defects or ambiguous instructions—so the trial court can fix them. Failure to do so may waive the claim.
• Bill of particulars: A pretrial tool the court can order that compels the State to clarify details (e.g., who the victim is for a given count), so both sides know the precise theory before trial.
• Jury deference: Appellate courts usually defer to the jury’s factual determinations if there is evidence to support them.

Deeper Discussion: How the Cited Cases Shaped the Dissent

• Gill, Pancake, and Flack set the stage by confirming that multiple punishments are not categorically barred when one act violates different laws; the question is whether the Legislature authorized separate punishments for distinct offenses determined under Blockburger.
• Zaccagnini provides the operative test, which Mirandy and Wright apply in the malicious assault/wanton endangerment context. Wright shows the danger zone: same act, same victim, same episode—wanton endangerment collapses into the assault as a lesser included offense, and dual punishment is improper. Mirandy shows the safe harbor: same act, different victims—each count has an additional fact, so dual punishment is permissible.
• Miller, Palmer, LaRock, Carroll, and McGilton anchor the dissent’s procedural thesis: double jeopardy is an important right but is not jurisdictional and may be waived if not timely raised. The dissent reads the record as a textbook case for enforcing the raise-or-waive rule.
• Easton, Duncan, and Martin hedge against post hoc reweighing of facts: if a jury could reasonably find that infant K.M. was endangered by the ricocheted shot inside the vehicle, the verdict structure—malicious assault for Brittany S.; wanton endangerment for K.M.—is a rational application of Mirandy.

Unresolved Questions and Likely Future Litigation

• What quantum of “record clarity” is enough? The majority’s refusal (as described) to apply Mirandy without a sufficiently clear link between the wanton endangerment count and K.M. suggests a heightened demand for victim specificity. But where is the line—must the victim be named in the indictment, the instruction, the verdict form, or is a clear trial record enough?
• How strictly will West Virginia apply raise-or-waive to double jeopardy claims? Justice Armstead’s sources support waiver when not timely raised, but the majority proceeded to grant relief despite untimeliness. Future cases may calibrate standards (e.g., plain error versus strict waiver) depending on the type of double jeopardy claim.
• Jury-instruction design: Will courts increasingly require victim-identified instructions and verdict forms in single-act, multi-victim prosecutions to preserve Mirandy-based separations?

Conclusion

State v. Anthony M., as reflected in Justice Armstead’s separate opinion, sits at the intersection of two important threads in West Virginia criminal law. Substantively, Mirandy permits dual convictions for malicious assault and wanton endangerment arising from a single act when different victims are implicated, because “victim identity” functions as a distinguishing element under Blockburger/Zaccagnini. Procedurally, the raise-or-waive doctrine demands that defendants timely challenge indictment ambiguities and jury instructions—especially when ambiguity is evident before or during trial—and that prosecutors and trial courts proactively eliminate such ambiguity.

The majority’s outcome (as described) underscores a practical refinement: to avoid multiple-punishment double jeopardy concerns in single-act firearm cases, the State must make the different-victim theory sufficiently clear in the charge and trial record. Justice Armstead would enforce waiver against a post-trial double jeopardy claim and, on the merits, would defer to the jury’s supported finding of separate victims under Mirandy. Regardless of one’s view, the case offers immediate guidance:

• Prosecutors should explicitly identify victims per count and align instructions and verdicts accordingly.
• Defense counsel should preserve double jeopardy objections pretrial and at the instruction conference.
• Trial judges should insist on clarity—particularly in single-act, multi-victim scenarios—to ensure verdicts rest on distinct elements and withstand appellate review.

In the broader legal context, Anthony M. reinforces that double jeopardy analysis in West Virginia remains element-focused and fact-sensitive, with victim identity often proving decisive in single-act prosecutions—and that procedural rigor is indispensable to the administration of justice.