Use of a Firearm in the Commission of a Felony Includes Conspiracy under WV Code § 61-7-15a

Introduction

State of West Virginia v. Brian Allen Merchant Jones (No. 23-13, decided May 2, 2025) is a Supreme Court of Appeals of West Virginia decision addressing four principal appellate issues arising from Brian Jones’s trial and sentencing in Marion County Circuit Court. Jones was convicted of:

Conspiracy to commit felony controlled substance offenses;
Use of a firearm in the commission of a felony (WV Code § 61-7-15a);
Possession of a firearm by a prohibited person; and
Involuntary manslaughter.

Following guilty pleas on two counts, a jury convicted Jones on the first two counts after a bench and lay-witness trial. On appeal, Jones challenged (1) admission of alleged hearsay; (2) introduction of “flight” evidence in closing argument; (3) admission of un-noticed Rule 404(b) evidence; and (4) sufficiency of the evidence and statutory interpretation of WV Code § 61-7-15a to require an “active” felony predicate. The Supreme Court affirmed on all issues.

Summary of the Judgment

Justice Armstead, writing for a unanimous Court, held:

Hearsay statements by the decedent—text messages and a conversation with his mother—were admissible under the “statement against interest” exception (W. Va. R. Evid. 804(b)(3)).
The prosecutor’s isolated reference to Jones’s post-shooting absence did not warrant mistrial; defense counsel had invited the issue and the jury was properly instructed that argument is not evidence.
Evidence of prior joint marijuana sales between Jones and the victim was intrinsic to the charged conspiracy and not barred by Rule 404(b).
WV Code § 61-7-15a applies to “any felony,” including inchoate crimes such as conspiracy, and the evidence—though circumstantial—supported convictions beyond a reasonable doubt.

Accordingly, the Court affirmed the circuit court’s December 9, 2022 sentencing order.

Analysis

Precedents Cited

State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990) – definition and non-hearsay uses of out-of-court statements.
Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965) – affirmance on any correct ground.
State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981) – procedure for admitting flight evidence.
State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995) – four-factor test for prejudicial prosecutorial remarks.
State v. Crabtree, 198 W.Va. 620, 482 S.E.2d 605 (1996) – party-offered evidence not subject to hearsay objection.
State v. General Daniel Morgan Post No. 548, 144 W.Va. 137, 107 S.E.2d 353 (1959) – clear, unambiguous statutes must be applied as written.
LaRock & McKinley – intrinsic vs. extrinsic act analysis under Rule 404(b).

Legal Reasoning

1. Hearsay Exception (804(b)(3)): The victim’s statements about planning to sell methamphetamine were against his penal interest. He was unavailable to testify. The corroborating circumstances (his mother’s personal observations and context) established trustworthiness, satisfying the exception.

2. Prosecutorial Misconduct/Flight Evidence: The isolated rebuttal reference to Jones having “run like a coward” did not require mistrial. Under Sugg and Guthrie, the Court weighs (a) seriousness of the remark, (b) whether invited by defense, (c) isolation, (d) corrective instructions, and (e) overall evidence strength. Here, the jury was instructed that arguments are not evidence, and the remark responded to defense counsel’s closing.

3. Rule 404(b) & Intrinsic Evidence: Prior marijuana transactions were “inextricably intertwined” with the methamphetamine conspiracy. Intrinsic evidence of the same transaction sequence is exempt from Rule 404(b) notice requirements.

4. Statutory Interpretation of WV Code § 61-7-15a: The statute unambiguously applies to “any felony,” including inchoate offenses like conspiracy. The Court refused to import a requirement that the predicate felony be “active” or completed.

5. Sufficiency of the Evidence: Drawing all reasonable inferences for the prosecution, there was ample circumstantial proof that Jones conspired to traffic methamphetamine and used or presented a firearm during that conspiracy.

Impact

This decision clarifies several points of West Virginia criminal practice:

Hearsay: Statements against penal interest (804(b)(3)) play a critical role when a declarant is unavailable.
Flight Evidence: Isolated references in rebuttal do not automatically mandate mistrial, especially when invited by defense argument.
Rule 404(b): Intrinsic—rather than extrinsic—criminal conduct may be proved without advance notice when it forms part of the same ongoing transaction.
Use‐of‐Firearm Statute: Conspiracy, an inchoate felony, qualifies as a predicate offense under § 61-7-15a, broadening the statute’s scope.

Complex Concepts Simplified

Hearsay vs. Non-Hearsay: A statement offered for a non‐truth purpose (e.g., state of mind) is not hearsay. A statement offered to prove what it asserts is hearsay but may fall under an exception (e.g., 804(b)(3)).
Intrinsic v. Extrinsic Acts: Intrinsic acts are part of the same criminal episode; they need no 404(b) notice. Extrinsic acts, which show propensity only, do.
Flight Evidence: Evidence of a defendant’s post-crime evasion can suggest consciousness of guilt but must pass a probative-vs.-prejudicial balancing test.
Conspiracy as Predicate Felony: An inchoate crime (conspiracy) is classified as a “felony” when legislatively so defined and may serve as the predicate for firearm‐in‐felony enhancements.
Standards of Review:
- De novo for statutory interpretation and evidentiary rules.
- Abuse-of-discretion for mistrial and new-trial rulings.
- De novo for sufficiency of the evidence.

Conclusion

State v. Jones establishes that West Virginia’s 804(b)(3) hearsay-against‐interest exception admits a decedent’s out-of-court statements when corroborated and the declarant is unavailable. It confirms that isolated “flight” references in closing arguments do not require mistrial if invited and corrected by instruction. It reaffirms that intrinsic evidence escapes Rule 404(b)’s notice mandates, and it definitively holds that WV Code § 61-7-15a applies to all felonies—including inchoate offenses like conspiracy. Finally, the sufficiency of circumstantial evidence to prove a methamphetamine conspiracy and firearm use, when considered in the light most favorable to the State, supported Jones’s convictions. The Supreme Court’s decision preserves the broad remedial sweep of the firearm‐in‐felony statute and clarifies trial practice on hearsay and criminal-act evidence.