IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2015 Term 

No. 14-0950 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v.
 

TAYLOR R. WASSON, JR.,
 

Defendant Below, Petitioner
 

FILED
 

October 8, 2015
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Berkeley County
 

Honorable Gray Silver, III, Judge
 

Criminal Action No. 13-F-213
 

AFFIRMED
 

Submitted: September 22, 2015
 

Filed: October 8, 2015
 

Benjamin M. Hiller, Esq. Cheryl K. Saville, Esq. 

Public Defender Corporation, Assistant Prosecuting Attorney 

23rd Judicial Circuit Martinsburg, West Virginia 

Martinsburg, West Virginia Attorney for Respondent 

Attorney for Petitioner 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT 

1. “The Supreme Court of Appeals reviews sentencing orders, including 

orders of restitution made in connection with a defendant’s sentencing, under a deferential 

abuse of discretion standard, unless the order violates statutoryor constitutional commands.” 

Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 

2. “Where the issue on an appeal from the circuit court is clearlya question 

of law or involving an interpretation of a statute, we apply a de novo standard of review.” 

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). 

3. “Read in pari materia, the provisions of W.Va.Code, 61-11A-1 [1984], 

W.Va.Code, 61-11A-4(a) [1984], W.Va.Code, 61-11A-4(d) [1984], W.Va.Code, 61-11A-5(a) 

[1984] and W.Va.Code, 61-11A-5(d) [1984], establish that at the time of a convicted criminal 

defendant’s sentencing, a circuit court should ordinarily order the defendant to make full 

restitution to any victims of the crime who have suffered injuries, as defined and permitted 

by the statute, unless the court determines that ordering such full restitution is impractical.” 

Syl. Pt. 2, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 

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4. “Under W.Va.Code, 61-11A-1 through -8 and the principles established 

in our criminal sentencing jurisprudence, the circuit court’s discretion in addressing the issue 

of restitution to crime victims at the time of a criminal defendant’s sentencing is to be guided 

by a presumption in favor of an award of full restitution to victims, unless the circuit court 

determines by a preponderance of the evidence that full restitution is impractical, after 

consideration of all of the pertinent circumstances, including the losses of any victims, the 

financial circumstances of the defendant and the defendant’s family, the rehabilitative 

consequences to the defendant and any victims, and such other factors as the court may 

consider.” Syl. Pt. 3, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 

5. “When a statute is clear and unambiguous and the legislative intent is 

plain, the statute should not be interpreted by the courts, and in such case it is the duty of the 

courts not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel Morgan 

Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). 

6. Pursuant to West Virginia Code § 61-11A-4(e) (2014), a court may 

order a defendant to make restitution to an insurance company to the extent that the insurance 

company has compensated a victim for loss attributable to the defendant’s criminal conduct. 

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LOUGHRY, Justice: 

The petitioner, Taylor R. Wasson, Jr., appeals an August 25, 2014, order of the 

Circuit Court of Berkeley County, requiring him, inter alia, to pay restitution in the amount 

of $5,478.93 to State Farm Insurance Company (“State Farm”) within one year of his release 

from incarceration. In this appeal, Mr. Wasson contends that the circuit court erred by 

ordering him to pay restitution to State Farm because it was not a “direct victim” of his 

criminal act. Upon consideration of the parties’ briefs and arguments, the submitted record, 

and pertinent authorities, we find no error and, therefore, affirm the circuit court’s order. 

I. Factual and Procedural Background 

In October 2013, Mr. Wasson was indicted and charged with burglary, grand 

larceny, conspiracy to commit burglary, and misdemeanor unlawful possession of a firearm. 

It was alleged that Mr. Wasson burglarized the home of Samuel and Betty Boynton on May 

10, 2013. Subsequently, Mr. Wasson entered into a plea agreement with the respondent, the 

State of West Virginia (“State”), whereby he agreed to plead guilty to the burglary charge in 

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exchange for dismissal of the remaining counts set forth in the indictment.1 Upon entry of 

his guilty plea, Mr. Wasson was sentenced to an indeterminate term of one to fifteen years 

in a state penitentiary for the burglary conviction. By agreement of the parties, a hearing was 

scheduled to address the matter of restitution. 

A restitution hearing was held on June 3, 2014. Mrs. Boynton testified that 

she and her husband had filed a claim with their insurance company, State Farm, for their lost 

property.2 She stated the total dollar amount of their claim was $12,404.95. Due to 

depreciation that amount was reduced by State Farm to $11,218.73.3 Mrs. Boyton explained 

that she and her husband ultimately received a settlement in the amount of $5,478.93 from 

State Farm pursuant to their insurance contract.4 Based on this evidence, the circuit court 

ordered Mr. Wasson to pay restitution to the Boytons in the amount of $5,739.80 for their 

unrecovered loss. The Court further ordered Mr. Wasson to pay $5,478.93 to State Farm, 

1

The plea agreement also encompassed charges against Mr. Wasson in two other 

unrelated cases. Consequently, in addition to burglarly, Mr. Wasson pled guilty to gross 

child neglect creating risk of serious bodily injury and robbery in the first degree. 

2

The items stolen from the Boynton home included an X-Box gaming console, X-Box 

games, jewelry, three televisions, and nine firearms. Three of the stolen guns were recovered 

when Mr. Wasson was arrested. 

3

The depreciation calculated by State Farm was not challenged by any party. 

4

The Boyntons’ insurance policy had a $1,000.00 deductible, a $2,500.00 aggregate 

policy limit for firearms, and a $1,000.00 aggregate policy limit on jewelry and fur. The total 

amount claimed by the Boyntons for firearms and jewelry was $5,043.80 more than the total 

aggregate policy limit for these items. 

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which was the amount that State Farm paid to the Boyntons to settle their claim. The court’s 

decision was set forth in the final order entered on August 25, 2014, and this appeal 

followed. 

II. Standard of Review 

Our standard for reviewing orders of restitution was set forth in syllabus point 

one of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), as follows: “The Supreme 

Court of Appeals reviews sentencing orders, including orders of restitution made in 

connection with a defendant’s sentencing, under a deferential abuse of discretion standard, 

unless the order violates statutory or constitutional commands.” Because the issue upon 

which Mr. Wasson bases his appeal involves statutory interpretation, we will also employ a 

de novo standard of review. As explained in syllabus point one of Chrystal R.M. v. Charlie 

A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), “[w]here the issue on an appeal from the circuit 

court is clearly a question of law or involving an interpretation of a statute, we apply a de 

novo standard of review.” 

III. Discussion 

West Virginia Code §§ 61-11A-1 through -8 (2014), known as the Victim 

Protection Act (the “Act”) “codif[y] the principal statutory law governing court-ordered 

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restitution by a person convicted of a crime.” Lucas, 201 W.Va. at 276, 496 S.E.2d at 226. 

Addressing the subject of restitution, this Court has previously observed that 

[r]ead in pari materia, the provisions of W.Va.Code, 

61-11A-1 [1984], W.Va.Code, 61-11A-4(a) [1984], W.Va.Code, 

61-11A-4(d) [1984], W.Va.Code, 61-11A-5(a) [1984] and 

W.Va.Code, 61-11A-5(d) [1984], establish that at the time of a 

convicted criminal defendant’s sentencing, a circuit court should 

ordinarily order the defendant to make full restitution to any 

victims of the crime who have suffered injuries, as defined and 

permitted by the statute, unless the court determines that 

ordering such full restitution is impractical. 

Lucas, 201 W.Va. at 273, 496 S.E.2d at 223, syl. pt. 2. This Court further recognized in 

Lucas that 

[u]nder W.Va.Code, 61-11A-1 through -8 and the 

principles established in our criminal sentencing jurisprudence, 

the circuit court’s discretion in addressing the issue of restitution 

to crime victims at the time of a criminal defendant’s sentencing 

is to be guided by a presumption in favor of an award of full 

restitution to victims, unless the circuit court determines by a 

preponderance of the evidence that full restitution is impractical, 

after consideration of all of the pertinent circumstances, 

including the losses of any victims, the financial circumstances 

of the defendant and the defendant’s family, the rehabilitative 

consequences to the defendant and any victims, and such other 

factors as the court may consider. 

201 W.Va. at 273, 496 S.E.2d at 223, syl. pt. 3. In this appeal, Mr. Wasson does not 

challenge the portion of the circuit court’s final order requiring him to pay restitution to the 

Boyntons. He only asserts error insofar as the order requires him to pay restitution to State 

Farm. 

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Mr. Wasson argues that he should not be required to pay restitution to State 

Farm because it was not a “direct victim” of his criminal act. Focusing upon West Virginia 

Code § 61-11A-4(a), Mr. Wasson contends that State Farm is not a “victim” within the 

meaning of this provision so as to give the insurer the right to an award of restitution. This 

provision of the Act provides: 

The court, when sentencing a defendant convicted of a 

felony or misdemeanor causing physical, psychological or 

economic injury or loss to a victim, shall order, in addition to or 

in lieu of any other penalty authorized by law, that the defendant 

make restitution to any victim of the offense, unless the court 

finds restitution to be wholly or partially impractical as set forth 

in this article. 

W.Va. Code § 61-11A-4(a). Mr. Wasson maintains this provision only allows an insurance 

company to be granted an award of restitution when a criminal defendant intends to and does 

obtain money or other benefits from said company through his or her criminal conduct. 

Acknowledging that the Act does not explicitly define “victim,” Mr. Wasson relies upon this 

Court’s decisions in Lucas and State v. McGill, 230 W.Va. 85, 736 S.E.2d 85 (2012), to 

support his argument. 

In Lucas, the defendant was convicted of first degree arson after he set fire to 

his grocery store business and collected the insurance proceeds. At his sentencing hearing, 

the trial court ordered the defendant to pay restitution of $1,430,000.00 to Aetna Casualty 

Company, which was the exact amount the company paid to settle the defendant’s insurance 

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claim as a result of the fire. On appeal, the defendant argued that Aetna was not a “victim” 

under the Act and, therefore, was not entitled to restitution. Rejecting the defendant’s 

argument, this Court held that “[w]here a criminal defendant intends to and does obtain 

money or other benefit from an insurance company by committing a criminal act of arson, 

the insurance company is a direct victim of the crime and is eligible for restitution under the 

provisions of W.Va.Code, 61-11A-4(a) [1984].” 201 W.Va. at 274, 496 S.E.2d at 224, syl. 

pt. 8. 

In contrast, in McGill, this Court reversed a circuit court order requiring a 

defendant to pay restitution to the state for expenses incurred in apprehending him after he 

escaped from custody. We explained that the Act is aimed at compensating the “direct 

victims of the crime–that is, individuals harmed directly by the criminal acts at issue–rather 

than society as a whole.” Id. at 89, 736 S.E.2d at 89. Therefore, we concluded the word 

“victim” could not be read so broadly as to include law enforcement authorities. 

Accordingly, this Court held in syllabus point five of McGill that “[t]he restitution provisions 

of the Victim Protection Act of 1984, West Virginia Code §§ 61-11A-1 to 8, do not extend 

to recovery of costs or expenses incurred by governmental agencies in apprehending 

perpetrators of criminal acts.” 230 W.Va. at 86, 736 S.E.2d at 86. 

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Based upon the above, Mr. Wasson maintains that the award of restitution to 

State Farm was improper because he did not intend to, nor did he obtain, any money, 

property, or benefit from the company as a result of his criminal conduct. Upon review of 

the record, we find Mr. Wasson’s reliance upon Lucas and McGill to be misplaced. Here, 

the circuit court made no finding that State Farm was a “direct victim” of Mr. Wasson’s 

criminal activity. Rather, the circuit court granted State Farm an award of restitution 

pursuant to West Virginia Code § 61-11A-4(e), a provision authorizing restitution payments 

to third parties that have reimbursed the victim. In that regard, the statute provides, in 

pertinent part: 

The court shall not impose restitution with respect to a 

loss for which the victim has received or is to receive 

compensation, except that the court may, in the interest of 

justice, order restitution to any person who has compensated the 

victim for loss to the extent that the person paid the 

compensation. 

Id. (emphasis supplied). 

The circuit court concluded that State Farm was a “person” within the meaning 

of West Virginia Code § 61-11A-4(e) and, therefore, was entitled to restitution because it 

compensated the Boyntons for a portion of their loss. Acknowledging that the term “person” 

is not defined by the provisions of the Act, the circuit court relied upon West Virginia Code 

§ 2-2-10 (2013), a statute that provides controlling rules for statutory construction “unless 

a different intent on the part of the Legislature be apparent from the context.” In particular, 

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the court applied West Virginia Code § 2-2-10(i), which defines “person” to include 

“corporations, societies, associations and partnerships, if not restricted by the context[.]” 

Given the qualifying phrase “restricted by the context” included in West 

Virginia Code § 2-2-10(i) coupled with the phrase “in the interest of justice” set forth in West 

Virginia Code § 61-11A-4(e), Mr. Wasson asserts that the definition of “person” should have 

been interpreted more narrowly by the circuit court. He maintains that it is inherently unfair 

and contrary to the interests of justice to require an indigent defendant5 to pay restitution to 

an insurance company for a settlement paid pursuant to an insurance contract given that the 

insurance company assessed and assumed the risk, collected premiums therefor, and has an 

adequate remedy through subrogation. For these reasons, Mr. Wasson asserts that other 

states prohibit insurance companies from collecting restitution unless they are a direct victim 

of the defendant’s criminal conduct. 

As is clear from a review of cases from other jurisdictions, the decisions 

addressing this issue vary depending on the specific language of the relevant statute. For 

instance, in State v. Alford, 970 S.W.2d 944 (Tenn. 1998), the defendant was convicted of 

aggravated assault and ordered to pay restitution to the victim and the insurance carrier that 

5

Mr. Wasson has not challenged the restitution awarded to State Farm based on an 

inability to pay. 

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paid the victim’s medical expenses. Vacating the restitution order with respect to the 

payment directed to the insurance carrier, the Tennessee Supreme Court found that the 

meaning of “victim” as used in the Tennessee restitution statute referred to “the individual 

or individuals against whom the offense was actually committed” and that “the guidance 

offered from the language of the statute [was] that the legislature did not intend ‘victim’ to 

apply to insurers in this context.” 970 S.W.2d at 946. 

Similiarly, in State v. Stanley, 339 S.E.2d 668 (N.C. Ct. App. 1986), the 

defendant, who pled guilty to one count of felonious larceny of a motor vehicle, was ordered 

by the trial court to pay $18,400.00 as restitution to an insurance company for payment it 

made to the car dealership that owned the subject vehicle. In awarding restitution to the 

insurance company, the trial court declared that the North Carolina restitution statute was 

unconstitutional to the extent that it provided “no third party shall benefit by way of 

restitution and reparation as a result of liability of that third party to pay indemnity to an 

aggrieved party for the damage or loss caused by the defendant.” Id. at 670. The appellate 

court reversed the trial court’s decision, reasoning that the distinction set forth in the statute 

between “aggrieved parties” and third-party indemnitors was rationally related to the state’s 

goals to “promote the rehabilitation of criminal defendants and to provide restitution and 

reparation to victims or ‘aggrieved parties’ who directly suffered damage or loss as a 

consequence of criminal misconduct.” Id. at 671. The court explained that “the legislature 

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could have rationally concluded that third-party indemnitors should be precluded from 

receiving restitution” because “more often than not third-party indemnitors are insurance 

companies” that “have voluntarily contracted to assume liability for damage or loss arising 

out of criminal conduct.” Id. However, the court recognized that “[a]n indemnitor’s right 

to pursue civil remedies against a criminal defendant, or against the insured to recover funds 

paid by the criminal defendant to the insured, remain[ed] intact.” Id. 

In Clayborn v. Commonwealth, 701 S.W.2d. 413 (Ky. Ct. App. 1985), the 

Kentucky court determined the insurance company that paid an assault victim $22,000.00 for 

impaired earnings and medical expenses was not a reimbursable entity under the Kentucky 

restitution statute. The relevant statute limited restitution to “the victim’s actual out-ofpocket expenses which are paid by the victim, the Department for Human Resources, the 

crime victim compensation board or other governmental entity.” Id.at 415. Consequently, 

the insurance company was not entitled to restitution despite the fact that it had incurred 

expenses as a result of the defendant’s assault. 

In marked contrast to these rulings, a Virginia appellate court upheld an order 

requiring the defendant, who had been convicted of multiple counts of burglary and grand 

larceny, to make restitution to the insurance companies that had paid the victims of his 

crimes. See Alger v. Commonwealth, 450 S.E.2d 765 (Va. Ct. App. 1994) In so holding, 

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the court rejected the defendant’s contention that a corporation was not an “individual” to 

whom restitution could be ordered because it would have required a finding that the state 

legislature intended to curtail the class of victims entitled to restitution. Id. at 767. Instead, 

the court construed the applicable restitution statutes “as declaring a legislative intent to 

provide for restitution for the victims of crimes, including corporations.” Id. 

Likewise, in State v. Merrill, 665 P.2d 1022 (Ariz. Ct. App. 1983), the 

appellate court was tasked with determining whether the trial court had erred by ordering the 

defendant, who pled guilty to burglary, to make restitution to an insurance company as a 

condition of probation. The applicable Arizona statute mandated restitution where there was 

“a victim who suffered economic loss.” Id. at 1023. Upon review, the court concluded that 

the insurance company that reimbursed the owner of the property involved in the burglary 

had suffered an economic loss and therefore, was “a victim” within the scope of the statute. 

Id. 

In People v. Bond, 297 N.W.2d 620 (Mich. Ct. App. 1980), the defendant, who 

was convicted of negligent homicide, was ordered by the trial court to pay the decedent’s 

insurance company restitution for the automobile damage and funeral expenses that were 

paid to the decedent’s estate. The applicable Michigan statute allowed the sentencing court 

to impose restitution “as the circumstances of the case may require or warrant, or as in its 

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judgment may be proper.” Id. at 621. The appellate court interpreted this language as 

affording broad discretion to the sentencing judge “to fashion a just remedy under all 

circumstances.” Id. Accordingly, the sentencing court’s order of restitution requiring the 

defendant to pay the decedent’s insurance company was upheld. 

As the cases discussed above illustrate, the parameters of an award of 

restitution must be determined based upon the language of the applicable statute. We have 

long held that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, 

the statute should not be interpreted by the courts, and in such case it is the duty of the courts 

not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel Morgan Post No. 

548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). In addition, we have 

previously observed that 

[t]he legislative intent of the West Virginia Legislature in 

enacting West Virginia’s restitution act is set forth in 

W.Va.Code § 61-11A-1, which provides in relevant part: 

The Legislature declares that the purposes 

of this article are . . . to ensure that the state and 

local governments do all that is possible within 

the limits of available resources to assist victims 

. . . of crime . . . 

W.Va.Code § 61-11A-1(b). 

State v. Whetzel, 200 W.Va. 45, 48, 488 S.E.2d 45, 48 (1997). The language of West 

Virginia Code § 61-11A-4(e) clearly and unambiguously provides for restitution to “to any 

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person who has compensated the victim for loss.” By definition set forth in West Virginia 

Code § 2-2-10(i), the Legislature afforded corporations, which necessarily include insurance 

companies, the status of a “person.” As such, we decline to narrowly read West Virginia 

Code § 61-11A-4(e) so as to preclude an insurance company from receiving restitution from 

a defendant to the extent it has compensated a victim for a loss attributable to the defendant’s 

criminal conduct. Allowing trial courts to order defendants to make restitution directly to 

insurance companies further assists victims by relieving them from the burden associated 

with an insurer pursuing its own subrogation claim and the possibility of involvement in 

litigation to resolve such a claim. 

We further find that absolving defendants from the financial consequences of 

their crimes when their victims have insurance would not comport with the rehabilitative and 

punitive aspects of restitution. In that regard, we have noted that in addition to compensating 

crime victims for their losses, 

[r]estitution can aid an offender’s rehabilitation by 

strengthening the individual’s sense of responsibility. The 

probationer may learn to consider more carefully the 

consequences of his or her actions. One who successfully 

makes restitution should have a positive sense of having earned 

a fresh start and will have tangible evidence of his or her 

capacity to alter old behavior patterns and lead a law-abiding 

life. Conditioning probation on making restitution also protects 

the community’s interest in having the victims of crime made 

whole. 

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Thus, [r]estitution imposed in a proper case and in an 

appropriate manner may serve the salutary purpose of making a 

criminal understand that he has harmed not merely society in the 

abstract but also individual human beings, and that he has a 

responsibility to make them whole. 

Fox v. State, 176 W.Va. 677, 681, 347 S.E.2d 197, 201-02 (1986) (internal quotations and 

citations omitted). To that end, “the criminal restitution scheme should always require the 

offender to pay the full cost of his crime, receiving no windfall from the fortuity that the 

victim was otherwise reimbursed[.]” People v. Birkett, 980 P.2d 912, 925 (Cal. 1999). In 

other words, “[t]he interests of justice would not be served by allowing a thief to retain or 

otherwise benefit from the spoils of his crime simply because he picked a victim who was 

prudent enough to have obtained insurance.” State v. Tuialii, 214 P.3d 1125, 1131 (Haw. Ct. 

App. 2009). Accordingly, we now hold that pursuant to West Virginia Code § 61-11A-4(e), 

a court may order a defendant to make restitution to an insurance company to the extent that 

the insurance company has compensated a victim for loss attributable to the defendant’s 

criminal conduct. 

IV. Conclusion 

For the reasons set forth above, the circuit court did not err in ordering Mr. 

Wasson to make restitution to State Farm. Therefore, the final order of the Circuit Court of 

Berkeley County entered on August 25, 2014, is affirmed. 

Affirmed. 

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