No. 12-1309 – State of West Virginia v. James Scott Yocum 

FILED 

May 12, 2014 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Benjamin, Justice, dissenting: 

The majority is mistaken when it concludes that the horrific bodily injuries 

threatened by the petitioner to the loved ones of Sergeant A.H. are not terroristic acts 

under W. Va. Code 61-6-24. A threat on the official who executes the laws in his status 

as an official is a threat to a level of the executive branch of government. I therefore 

dissent. 

It was not error to prosecute the petitioner under W. Va. 61-6-24. It is a purpose of 

the statute to criminalize retaliation by the making of a threat of serious bodily injury 

designed to intimidate or coerce. Sergeant A. was acting in an official manner exercising 

the police power of the government at all times during the petitioner’s interaction with 

him. Indeed, Sergeant A. was performing the official duties delegated to him when he 

arrested petitioner for domestic violence. It was to this officer, acting in his official 

capacity, that petitioner made despicable threats meant to intimidate or coerce him. The 

majority finds that an individual police officer does not constitute a level of government 

under the statute. I disagree. This was not a citizen’s arrest, nor was Sergeant A. at any 

time acting in anything other than an official capacity. Indeed, it is undisputed that the 

arrest of the petitioner by Sergeant A. was a valid exercise of the police power of the state 

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through its executive function. To whom or what would the majority believe a valid 

terroristic threat in such a setting should instead be made? The governor? The police 

department? The executive branch can only function by and through its employees acting 

in their official capacities. It is simply absurd therefore to contend that Sergeant A. was 

anything but a personification of the executive level of government at all times during his 

interaction with petitioner. 

That petitioner’s threats were to specific family members of Sergeant A. rather 

than to the general public is likewise of little consequence. What more impact could 

petitioner have made in attempting to intimidate or coerce Sergeant A. than making 

threats deeply personal to Sergeant A? In personalizing the violence which he intended to 

visit upon Sergeant A.’s loved ones, petitioner clearly sought to maximize the terror felt 

by Sergeant A. and thereby maximize his intimidation of him in the execution of his 

official duties. 

Finally, while I recognize that reasonable persons can disagree on the 

construction of W. Va. Code § 61-6-24, I find that the majority opinion’s hostility toward 

Sergeant A. for reporting the petitioner’s threat is nothing short of bizarre. The facts show 

that Sergeant A. did his duty. He arrested the petitioner for domestic violence and 

reported the petitioner’s threat to the prosecutor. Nevertheless, the majority refers to 

Sergeant A. as “overly-zealous” and intimates that a seasoned officer like Sergeant A. 

should not be so thin skinned in giving credence to “empty” threats. Why should 

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Sergeant A. consider the threat empty when he was arresting the petitioner for domestic 

violence? Obviously, Sergeant A. had good reason to believe that the petitioner is a 

violent person. Also, considering Sergeant A.’s knowledge that the petitioner is a violent 

person, why should Sergeant A. presume that his family was in no danger? The majority 

implies that putting up with violent threats against his or her family members is part of a 

police officer’s daily routine, and police officers simply should shrug off such threats and 

go about their business. Perhaps such threats against other public actors doing their 

official duties should likewise be considered to be empty threats; actors such as teachers, 

firefighters, legislators and, perhaps, even judges. 

So, at the end of the day, where are we with petitioner’s threat to viciously attack 

Sergeant A.’s loved ones simply because Sergeant A. did the job we ask of him? The 

petitioner is left to laugh. He pulled off a good one and got away with it. Sergeant A. is 

left to worry and perhaps hug his family a bit tighter. And us? We’re left by the majority 

to believe that this is what the legislature intended. Petitioner’s threats should have 

consequences and I believe the legislature thought so too. I therefore dissent. 

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