Victim Specificity as the Key to Avoiding Double Jeopardy in Single‑Gunshot Cases: Wanton Endangerment Vacated as a Lesser‑Included Offense of Malicious Assault Where the Indictment Left the Victim Unnamed

Introduction

In State of West Virginia v. Anthony M., the Supreme Court of Appeals of West Virginia (Justice Walker) addressed a recurring problem in violent crime prosecutions: whether the State may obtain convictions for both malicious assault and wanton endangerment arising from a single gunshot. The Court held that when an indictment and trial record do not distinctly identify different victims for each count, wanton endangerment is treated as a lesser-included offense of malicious assault in a single-shot scenario, rendering dual convictions impermissible under the Double Jeopardy Clause of Article III, Section 5 of the West Virginia Constitution.

The case stems from two alleged shootings of Brittany S. by Anthony M.—one in 2020 and another in 2021. A Kanawha County jury acquitted Anthony M. of all 2020 counts but convicted him of multiple 2021 charges, including attempted first-degree murder, malicious assault, presentation of a firearm in the commission of a felony, two counts of possession of a firearm by a prohibited person, wanton endangerment with a firearm, and gross child neglect. On appeal, Anthony M. challenged (1) double jeopardy with respect to malicious assault and wanton endangerment, (2) the sufficiency of the evidence, (3) a mistrial denial after a State witness referenced his post-Miranda silence, and (4) the admission of the victim’s mother’s lay opinion testimony and related “prior bad act” evidence.

The Court affirmed most convictions, vacated the wanton endangerment conviction (Count Eleven) on double jeopardy grounds, and remanded for resentencing consistent with its opinion.

Summary of the Opinion

Double Jeopardy: Vacated the wanton endangerment conviction (Count Eleven) because, on this record, the single gunshot at Brittany S. made wanton endangerment a lesser-included offense of malicious assault (Count Eight). The indictment and trial record did not clearly identify a different victim for wanton endangerment.
Sufficiency of the Evidence: Affirmed multiple convictions tied to the 2021 incident:
- Constructive possession supported the firearm-by-prohibited-person counts, including the firearm matched to the spent casing.
- Evidence was sufficient to prove Anthony M. was the shooter (geolocation data, ballistics characteristics, text messages, circumstances, and testimony).
- Gross child neglect was supported by evidence that the infant K.M. was in close proximity, at risk from the shot/ricochet, and left in a perilous condition.
Comment on Post-Miranda Silence: The State’s elicitation that Anthony M. “did not” give his version after arrest violated his right against self-incrimination, but the error was harmless beyond a reasonable doubt given the single, brief reference and strong evidence.
Lay Opinion and “Other Acts” Evidence:
- It was error to admit the mother’s lay opinion that Anthony M. was the shooter under Rule 701 because it was not “helpful” to the jury; however, the error was harmless.
- The mother’s testimony recounting an earlier threat by Anthony M. was admissible as intrinsic evidence (res gestae) to contextualize the 2020 incident; it was not improper Rule 404(b) propensity evidence.
Disposition: Affirmed in part; vacated in part; remanded for resentencing without the wanton endangerment count.

Analysis

Precedents Cited and Their Influence

State v. Guthrie (1995): Standard for sufficiency review—whether any rational trier of fact could find the essential elements beyond a reasonable doubt; emphasizes the heavy burden on defendants who attack sufficiency.
State v. Peyatt (1983) and State v. Louk (1983): Evidentiary rulings reviewed for abuse of discretion.
Conner v. Griffith (1977): West Virginia double jeopardy protections include the bar on multiple punishments for the same offense.
Blockburger v. United States (U.S. 1932), adopted in State v. Gill (1992): Offenses are distinct if each requires proof of a fact the other does not; informs the greater/lesser-included offense analysis.
State v. Wright (1997): In single-gunshot cases, wanton endangerment with a firearm can be a lesser-included offense of malicious assault when both convictions are tied to the same act and same victim.
Mirandy v. Smith (2016): No double jeopardy where the indictment and record specify different victims for wanton endangerment (child) and malicious assault (adult). Distinguishable because the indictment here did not specify a different victim for wanton endangerment.
State v. Ward (2023): Reaffirms Wright—wanton endangerment can be a lesser-included offense of malicious assault given the circumstances.
U.S. v. Mendez-Colon (4th Cir. 2011) (per curiam): An indictment’s failure to name the victim can be cured by a clear trial record that unambiguously ties counts to specific victims. Here, the record did not clearly tie wanton endangerment to K.M.
Russell v. United States (1962) and Cochran v. United States (1895): The record can serve as a backstop for double jeopardy purposes, but the record must be sufficiently clear; it was not here.
State v. Harlow (1952): Credibility and weight of conflicting evidence are for the jury.
State v. Boyd (1977) and State v. Hoard (2023): Comments on a defendant’s post-Miranda silence violate constitutional protections but are subject to harmless error analysis.
State v. Johnson (2017): Rule 701 lays out prerequisites for admissible lay opinion; emphasizes the “helpfulness” requirement.
State v. Atkins (1971): Harmless error test for non-constitutional evidentiary errors—remove the inadmissible evidence and evaluate the remaining proof and prejudice.
State v. McKinley (2014), State v. Dennis (2004), State v. LaRock (1996): “Intrinsic” (res gestae) evidence that completes the story of the charged crime is outside Rule 404(b)’s prohibition and is often admissible in domestic violence contexts to explain the relationship and sequence of events.
State v. Cummings (2001) and State v. Beck (2019): Constructive possession requires knowledge and dominion/control; extended here to firearms in shared spaces.
State v. Warren (2023) (mem. decision): Persuasive application of constructive possession to firearms in a shared hotel room; supported the finding of dominion/control in this case.

Legal Reasoning

1) Double Jeopardy and the Necessity of Victim Specificity

Applying Blockburger/Gill and Wright, the Court focused on whether the wanton endangerment conviction was a lesser-included offense of malicious assault in this single-shot case. The indictment expressly named Brittany S. as the victim of malicious assault (Count Eight) but did not identify a victim for wanton endangerment (Count Eleven), using only “another person.” The State argued that wanton endangerment could be anchored to K.M. (the infant), thus avoiding double jeopardy under Mirandy. But the Court declined to accept that post hoc gloss because neither the indictment, the jury instructions, nor the trial record clearly and consistently treated K.M. as the victim for Count Eleven.

Notably, when the trial court asked the prosecutor post-trial whether Count Eleven had been argued as to K.M., the State responded: “I don’t recall.” Without a clear charging choice and record support, the Court treated the wanton endangerment count as directed to the same victim, Brittany S., making it a lesser-included offense of malicious assault under Wright. The wanton endangerment conviction therefore violated the double jeopardy bar against multiple punishments for the same offense and was vacated. The remedy is resentencing limited to the malicious assault count.

Key insight: Mirandy remains good law but requires precise charging and a clear record distinguishing victims across counts. Victim ambiguity in a single-incident, single-shot case effectively collapses wanton endangerment into malicious assault for double jeopardy purposes.

2) Sufficiency of the Evidence

Identity of the shooter: The State’s proof included Brittany S.’s testimony about the circumstances (only Anthony M. present), cell-site location data placing his phone at the scene, text messages (including threats and admissions about prior shooting), and forensic ballistics characteristics linking a Taurus PT111 G2 found in his room to the spent casing at the scene. Motive is not an element and need not be proven.
Constructive possession of firearms (Counts Ten and Thirteen): Officers found Anthony M. exiting a bedroom containing multiple firearms, including the Taurus linked to the casing; personal documents tied him to that room/address. Under Cummings/Beck/Warren, this sufficed to prove knowledge and dominion/control even if others had access to the residence.
Gross child neglect (Count Twelve): Evidence showed K.M., less than a year old, was strapped in a car seat within approximately five feet of the shot trajectory/ricochet, and was left in a dangerous condition after Brittany S. was shot. A rational jury could find gross neglect creating a substantial risk of death or serious bodily injury under W. Va. Code § 61-8D-4(c).

3) Comment on Post-Miranda Silence—Constitutional Error, Harmless Beyond a Reasonable Doubt

The prosecutor asked the lead detective if Anthony M. gave his version of events, eliciting: “He did not.” Because this occurred after Miranda warnings, it implicated the state constitutional protections against self-incrimination under Boyd. Still, following Hoard, the Court applied harmless-error analysis. Given the brevity and singularity of the comment and the strength of the State’s case, the error did not warrant a mistrial and was harmless beyond a reasonable doubt. The trial court’s refusal to grant a mistrial was not an abuse of discretion.

4) Lay Opinion (Rule 701) and Intrinsic Evidence (Res Gestae) vs. Rule 404(b)

Lay opinion error: The victim’s mother, Sylvia S., relayed a prior threat and then gave her opinion that Anthony M. was the shooter. The Court held her opinion was not “helpful” under Rule 701 because the jury could draw its own conclusions from properly admitted facts; allowing her to opine effectively made her a “thirteenth juror.” The error was harmless under Atkins because, even without her opinion, the remaining evidence was overwhelming.
“Other acts” evidence as intrinsic: Sylvia’s testimony about the earlier threat to kill Brittany S. and the children—occurring months before the 2020 incident—was admissible as intrinsic evidence (res gestae) that “completed the story” of the domestic relationship and contextualized the charged events, consistent with McKinley and Dennis. Because it was intrinsic, it fell outside Rule 404(b)’s propensity prohibition.

Impact

1) Charging and Trial Strategy—Prosecution

Victim specificity is paramount. When charging wanton endangerment alongside malicious assault in single-shot cases, explicitly name distinct victims for each count in the indictment and mirror that specificity in jury instructions, verdict forms, and closing argument.
Build a clear record. Ensure the trial record unmistakably links each count to its identified victim(s). Post-trial “I don’t recall” will not salvage a double jeopardy problem.
Consider separate counts for multiple endangered bystanders. A single shot can endanger several individuals near the line of fire; each can be a separate wanton endangerment victim if the record is clear.
Avoid post-Miranda silence questions. Train witnesses not to volunteer silence-related testimony; use motions in limine and curative instructions where necessary.
Use Rule 701 sparingly. Do not elicit lay opinions on ultimate guilt when the jury can reach the conclusion from the facts.

2) Defense Practice

Scrutinize indictments for victim ambiguity. In single-shot cases, move pretrial to dismiss duplicative counts or compel an election or bill of particulars to force victim specificity, preserving double jeopardy arguments.
Target lay opinion “helpfulness.” Object to lay opinions that add nothing beyond facts; argue Nichols/Johnson to exclude “thirteenth juror” testimony.
Silence violations: Object immediately to silence references and seek curative instructions; preserve for harmless error review.
Shared-space constructive possession: Challenge dominion/control with evidence of others’ access, but recognize the State’s ability to link possession through location, documents, and unique item ties (like matched casings).

3) Trial Courts

Policing duplicative counts: In single-gunshot prosecutions, require the State to articulate and maintain victim specificity across counts to avoid double jeopardy complications at verdict and sentencing.
Jury instructions and verdict forms: Name victims per count; consider special verdicts identifying the victim to preserve clarity for Blockburger analysis and future jeopardy concerns.
Evidence rulings: Apply Rule 701’s “helpfulness” rigorously; admit intrinsic domestic-violence evidence when it completes the story but vigilantly cabin its scope to context rather than propensity.
Miranda-silence safeguards: Pre-instruct counsel and witnesses; be prepared with curative instructions and mistrial standards if violations occur.

Complex Concepts Simplified

Double Jeopardy: The constitutional protection against being punished twice for the same offense. If one offense is a lesser-included of another, punishing both violates double jeopardy.
Blockburger Test: Two offenses are different only if each requires proof of a fact the other does not. If not, one is a lesser-included offense.
Lesser-Included Offense: A crime whose elements are entirely contained within a greater crime. You cannot be punished for both the greater and the lesser based on the same act and victim.
Wanton Endangerment vs. Malicious Assault:
- Wanton endangerment (firearm): Performing an act with a firearm that creates a substantial risk of death or serious bodily injury to another.
- Malicious assault: Causing bodily injury with intent to maim, disfigure, disable, or kill (e.g., by shooting).
- In a single shot at one person, wanton endangerment can collapse into malicious assault unless the State clearly anchors wanton endangerment to a different victim.
Constructive Possession: Even without physical possession, a person can “possess” contraband if they know about it and have the power to control it (dominion/control).
Rule 701 (Lay Opinion): Non-expert opinions are admissible only if based on personal perception, rationally connected to facts, helpful to determining an issue, and not based on specialized knowledge. Opinions that merely tell the jury how to decide are not “helpful.”
Rule 404(b) vs. Intrinsic Evidence: 404(b) bars prior bad acts to prove character/propensity. But “intrinsic” evidence—events near in time that complete the narrative of the charged offense (res gestae)—is admissible to explain the relationship and sequence of events.
Harmless Error:
- Constitutional error (e.g., comment on post-Miranda silence): Reversible unless harmless beyond a reasonable doubt, assessed in context of the whole record.
- Non-constitutional evidentiary error (e.g., Rule 701 misstep): Remove the tainted evidence and ask if the remainder suffices for conviction and whether the error likely influenced the verdict.

Conclusion

State v. Anthony M. meaningfully clarifies how West Virginia courts will treat overlapping charges from a single gunshot. The central takeaway: when the indictment and trial record do not clearly allocate different victims to wanton endangerment and malicious assault, wanton endangerment is a lesser-included offense of malicious assault, and dual punishment is barred by double jeopardy. Prosecutors must draft with precision—naming victims per count and maintaining that specificity in instructions and arguments—to preserve multiple convictions arising from a single incident involving multiple endangered persons.

Beyond double jeopardy, the decision reinforces key trial principles: Rule 701’s “helpfulness” requirement limits lay opinions that tell the jury how to decide; constructive possession can be proved in shared spaces with evidence of knowledge and control; and post-Miranda silence remains a constitutional tripwire, though brief and isolated violations may be harmless. The Court’s approach synthesizes established precedent—Wright, Mirandy, Gill/Blockburger, McKinley/Dennis—with practical guidance for charging and trying domestic-violence-related shootings in a way that is both fair and legally durable.

Disposition: Affirmed in part; vacated in part (wanton endangerment); remanded for resentencing consistent with the opinion. Justice Armstead concurred in part and dissented in part, reserving the right to write separately.