1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 21-0526 (Upshur County 20-F-46) 

Roger Kent Stobart,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Roger Kent Stobart appeals the circuit court’s June 14, 2021, sentencing order 

entered following his convictions for one count of taking the identity of another, two counts of 

forgery of a public record, and two counts of uttering a public record.

1 In short, these convictions 

resulted from petitioner signing someone else’s name to two traffic citations and returning them 

to the issuing officer during a traffic stop.

2 Petitioner raises five assignments of error on appeal 

to this Court, and upon our review, we determine that oral argument is unnecessary and that a 

memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. App. 

Proc. 21.

Petitioner first argues that his separate convictions (two for forgery of a public record and 

two for uttering a public record) violate double jeopardy principles because an improper unit of 

prosecution was utilized. He argues that because the citations were forged and uttered in the 

same transaction and because the citation book used by the officer allowed him to charge only 

two offenses per citation, he should have been charged with one count of forgery of a public 

record and one count of uttering a forged public record.

This Court has previously rejected a similar challenge. In State v. Green, 207 W. Va. 530, 

534 S.E.2d 395 (2000), we held that the unit of prosecution of West Virginia Code § 61-4-5(a) 

(forgery or uttering of other writings) was each document, emphasizing the Legislature’s use of 

the word “‘any’ in the context of a singular noun, in this case ‘writing.’” Id. at 538, 534 S.E.2d at 

403. As a result, we held further that West Virginia Code § 61-4-5(a) “clearly and 

1 Petitioner appears by counsel Brian W. Bailey, and the State appears by counsel Patrick 

Morrisey and Lara K. Bissett.

2 Petitioner was cited for four traffic offenses, with each citation containing two traffic 

offenses.

FILED

December 6, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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unambiguously provides for separate punishments for each forged document uttered.” Id. Like its 

counterpart for other writings, the forgery of a public record statute employs singular nouns:

If any person forge a public record, or a certificate, return or attestation of a clerk 

of a court, notary public, judge, justice, or any public officer, in relation to any 

matter wherein such certificate, return, or attestation may be received as legal 

proof, or utter or attempt to employ as true such forged record, certificate, return 

or attestation, knowing the same to be forged, he shall be guilty of a felony, and, 

upon conviction, shall be confined in the penitentiary not less than two nor more 

than ten years.

W. Va. Code § 61-4-1. Petitioner has offered no justification for construing the forgery of a 

public record statute differently from the forgery or uttering of another writing statute, nor do we 

find a basis for doing so. Accordingly, we find no error in the circuit court’s determination that 

petitioner could be charged with, convicted of, and separately punished for forging and uttering 

each of the citations at issue.

Petitioner argues in his second assignment of error that the circuit court erred in allowing 

the State to try him for two counts of uttering a forged public record when “public record” is not 

defined in the forgery of a public record statute and “no specific case law” defines “uttering.” He 

urges application of the rule of lenity, which requires that “ambiguous criminal statutes” be 

“strictly construed against the State and in favor of the defendant.” Syl. Pt. 5, in part, State ex rel. 

Morgan v. Trent, 195 W. Va. 257, 465 S.E.2d 257 (1995). But “legislative silence does not 

constitute statutory ambiguity,” Griffith v. Frontier West Virginia, Inc., 228 W. Va. 277, 285,

719 S.E.2d 747, 755 (2011), so petitioner, having advanced no other basis for a finding that 

“public record” is ambiguous, has not demonstrated ambiguity in that respect. As for “uttering,”

this Court has explained that “[f]or an uttering conviction, the State must prove that the 

defendant employed the writing.” State v. Watts, No. 11-1620, 2013 WL 1501418, *3 (W. Va. 

Apr. 12, 2013)(memorandum decision). Here, petitioner “employed the writing[s],” id., in 

question by tendering the forged citations to the issuing officer. Thus, petitioner has not 

demonstrated ambiguity in the statute, and the rule of lenity is therefore inapplicable. See 

Morgan, 195 W. Va. at 259, 465 S.E.2d at 259, Syl. Pt. 5.

Petitioner’s remaining assignments of error warrant little discussion. In his third, he urges 

the Court to find plain error in the circuit court’s failure to instruct the jury on the lesser included 

offenses of forgery and uttering a writing other than a public record. The evidence was sufficient 

to support the greater offenses—and petitioner does not argue otherwise—so there was no error, 

let alone plain error, in the failure to give the instruction. See Syl. Pt. 2, State v. Neider, 170 W. 

Va. 662, 295 S.E.2d 902 (1982) (“Where there is no evidentiary dispute or insufficiency on the 

elements of the greater offense which are different from the elements of the lesser included 

offense, then the defendant is not entitled to a lesser included offense instruction.”). In his fourth, 

he claims that the criminal complaint misidentified the year in which he was alleged to have 

committed the offenses of which he was convicted, a mistake he claims is “fundamentally 

unfair.” Petitioner offers no law to support his claim that this “unfairness” mandates that the 
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parties return “to the status quo ante prior to the June 2020 grand jury proceedings,” however, so 

he has failed to demonstrate error. Plus, we observe that the error was caught during the grand 

jury proceedings, and there is no question that the correct date was used in the indictment.3

Finally, petitioner claims that the circuit court erred in denying his motion for judgment of 

acquittal, but he does not claim that the State failed to prove any element on which it bore the 

burden. Rather, petitioner argues that there was no corroborative evidence, and he highlights the 

“blasé nature” of the investigating officer’s testimony. These criticisms fail to satisfy petitioner’s

“heavy burden” in challenging the sufficiency of the evidence as “[c]redibility determinations are 

for a jury and not an appellate court,” and “a jury verdict should be set aside only when the 

record contains no evidence, regardless of how it is weighed, from which the jury could find guilt 

beyond a reasonable doubt.” Syl. Pt. 3, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 

(1995) (emphasis added).

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: December 6, 2022

CONCURRED IN BY:

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice C. Haley Bunn

DISSENTING:

Chief Justice John A. Hutchison

Justice William R. Wooton

Hutchison, Chief Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral 

argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ 

briefs and the issues raised therein, I believe a formal opinion of this Court was warranted—not a 

memorandum decision. Accordingly, I respectfully dissent. 

Wooton, Justice, dissenting: 

3 Although the relief petitioner is seeking is not entirely clear, it appears that he is 

suggesting that the State was required to indict petitioner using the incorrect date contained in 

the criminal complaint—a date for which petitioner claims he had an alibi. Again, petitioner has 

cited no law to support that proposition.
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I respectfully dissent. In my view, this case should have been placed on the Court’s Rule 

20 docket to determine whether a traffic citation is a “public record” within the meaning of West 

Virginia Code section 61-4-1,4 and whether the act of handing the signed traffic citation back to 

the officer constitutes “uttering” of the document within the meaning of the statute.

With respect to the first issue, we have stated that signing a fingerprint card with a false 

name constituted the counterfeit production of a public record, certificate, return, or attestation of 

a public officer. Jordan v. Ballard, No. 21-1015, 2013 WL 5476421, at *2 (W. Va. Oct. 1, 2013) 

(memorandum decision). However, the case provides no analysis whatsoever for its conclusion; 

and in any event, it is well settled that although memorandum decisions are legal precedent, “the 

Court uses original syllabus points to announce new points of law or to change established 

patterns of practice by the Court.” Syl. Pt. 1, in part, State v. McKinley, 234 W. Va. 143, 764 

S.E.2d 303 (2014). Accordingly, I would treat the “public record” issue in this case as one of 

first impression.

With respect to the second issue, this Court has never attempted to define “uttering” as 

the term is employed in § 61-4-1, and I believe that we should do so, again as an issue of first 

impression. There seems to me to be a vast gulf between uttering a forged check – handing it off 

to an unsuspecting third party in return for goods or services – and what happened in this case. 

For these reasons, I respectfully dissent.

4 West Virginia Code section 61-4-1 provides that

[i]f any person forge a public record, or a certificate, return or 

attestation of a clerk of a court, notary public, judge, justice, or any 

public officer, in relation to any matter wherein such certificate, 

return, or attestation may be received as legal proof, or utter or 

attempt to employ as true such forged record, certificate, return or 

attestation, knowing the same to be forged, he shall be guilty of a 

felony, and, upon conviction, shall be confined in the penitentiary 

not less than two nor more than ten years.