IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2024 Term 

_______________ 

No. 23-155 

_______________ 

STATE OF WEST VIRGINIA EX REL. STATE OF WEST VIRGINIA, 

Plaintiff Below, Petitioner, 

v. 

THE HONORABLE PAUL W. GWALTNEY, JR., JUDGE OF 

THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA; 

J.L. AND D.F.,

Respondents. 

____________________________________________________________ 

Petition for a Writ of Prohibition 

WRIT GRANTED 

____________________________________________________________ 

Submitted: February 6, 2024 

Filed: May 3, 2024 

JUSTICE BUNN delivered the Opinion of the Court. 

JUSTICE WOOTON concurs in part and dissents in part and may write separately. 

Patrick Morrisey, Esq.

Attorney General

Michael R. Williams, Esq.

Principal Deputy Solicitor General

Andrea Nease Proper

Deputy Attorney General

Office of the Attorney General

Charleston, West Virginia

Attorneys for the Petitioner 

Kevin T. Tipton, Esq.

Tipton Law Offices 

Morgantown, West Virginia 

Attorney for Respondents J.L. and D.F.

FILED

May 3, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “The State may seek a writ of prohibition in this Court in a criminal 

case where the trial court has exceeded or acted outside of its jurisdiction. Where the State 

claims that the trial court abused its legitimate powers, the State must demonstrate that the 

court’s action was so flagrant that it was deprived of its right to prosecute the case or 

deprived of a valid conviction. In any event, the prohibition proceeding must offend neither 

the Double Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the 

application for a writ of prohibition must be promptly presented.” Syllabus point 5, State 

v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded on other grounds by statute 

as recognized in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d 718, 729 

n.27 (2017).

2. “In determining whether to entertain and issue the writ of prohibition 

for cases not involving an absence of jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether 

the party seeking the writ had no other adequate means, such as direct appeal, to obtain the 

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not 

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter 

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent 

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s 
ii

order raises new and important problems or issues of law of first impression. These factors 

are general guidelines that serve as a useful starting point for determining whether a 

discretionary writ of prohibition should issue. Although all five factors need not be 

satisfied, it is clear that the third factor, the existence of clear error as a matter of law, 

should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 

W. Va. 12, 483 S.E.2d 12 (1996).

3. A circuit court may not grant a defendant’s pretrial motion to dismiss 

an indictment on the basis of the sufficiency of the evidence or whether a factual basis for 

the indictment exists.
1

BUNN, Justice:

Petitioner, the State of West Virginia, invokes this Court’s original 

jurisdiction and seeks a writ of prohibition to prevent the Honorable Paul W. Gwaltney, 

Jr., Judge of the Circuit Court of Monongalia County, from enforcing the circuit court’s

order dismissing a six-count indictment.

1 The indictment charged the defendants in the 

underlying action, Respondents J.L. and D.F. (“the parents”), with crimes relating to child 

abuse and neglect.

2 Because we find that the circuit court exceeded its legitimate powers 

and invaded the province of the grand jury by dismissing the indictment, and the State will 

be damaged in a way uncorrectable on appeal, we grant the writ.

1 Petitioner listed the Honorable Susan B. Tucker, former Judge of the Circuit 

Court of the Seventeenth Judicial Circuit, which serves Monongalia County, as one of the 

original respondents in this matter, as she issued the order that is the subject of the petition 

for a writ of prohibition. However, while the petition was pending, Judge Tucker retired 

and Judge Gwaltney was appointed to serve the unexpired portion of Judge Tucker’s term. 

Accordingly, Judge Gwaltney is the appropriate party and has been substituted pursuant to 

Rule 41(c) of the West Virginia Rules of Appellate Procedure. 

2 As this case involves juveniles and a prior abuse and neglect proceeding, 

we use the initials for the last names of the defendants in the underlying action. See W. Va. 

R. App. P. 40(e)(1).
2

I.

FACTUAL AND PROCEDURAL HISTORY

Prior to 2020, J.L. and D.F. adopted three children. In 2020, the West 

Virginia Department of Human Services (“DHS”)3 filed a petition alleging that J.L., the 

mother, and D.F., the father, abused and neglected those children. During that proceeding, 

both parents stipulated that they “engaged in excessive corporal punishment . . . which 

resulted in physical abuse.” In re A.F.-1, No. 21-0712, 2022 WL 3949414, at *6 (W. Va.

Aug. 31, 2022) (memorandum decision) (alteration in In re A.F.-1) (regarding mother); 

accord In re A.F.-1, No. 21-0711, 2022 WL 3949315, at *6 (W. Va. Aug. 31, 2022) 

(memorandum decision) (regarding father and containing same quotation). Ultimately, in 

August 2021, the circuit court terminated the parental rights of both parents, although it 

did not find that the abuse and neglect met the standard for “aggravated circumstances”

that would relieve the DHS of the requirement that it provide certain services.

4 In re A.F.-1, 

2022 WL 3949414 at *3; accord In re A.F.-1, 2022 WL 3949315, at *4. This Court 

3 Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency 

formerly known as the West Virginia Department of Health and Human Resources was 

terminated. It is now three separate agencies—the Department of Health Facilities, the 

Department of Health, and the Department of Human Services. See W. Va. Code § 5F-1-2. 

For purposes of abuse and neglect proceedings, the agency is now the Department of 

Human Services (“DHS”), and we will reference the newly formed agency throughout this 

opinion.

4 In an abuse and neglect case, if DHS proves aggravated circumstances, it 

“is not required to make reasonable efforts to preserve the family.” W. Va. Code 

§ 49-4-604(c)(7). “Aggravated circumstances” include “abandonment, torture, chronic 

abuse, and sexual abuse.” § 49-4-604(c)(7)(A).
3

affirmed the circuit court’s termination of J.L. and D.F.’s parental rights. In re A.F.-1, 2022 

WL 3949414, at *1; accord In re A.F.-1, 2022 WL 3949315, at *1.

At some point in time, the State charged the parents in a criminal complaint

with crimes relating to the abuse and neglect of the children. The complaint alleged

violations of West Virginia Code § 61-8D-4(b), child neglect causing serious bodily injury. 

During the preliminary hearings related to the criminal complaint, the State purportedly 

argued that bodily injury included psychological injury. At one of the preliminary hearings, 

a magistrate found that there was no probable cause to support the charges against J.L.5

In September 2021, a grand jury returned a six-count indictment against the 

parents, as follows:

• Counts One and Two alleged J.L. and D.F. together committed 

“‘Child Abuse Resulting in Bodily Injury’ by unlawfully, 

intentionally and feloniously abusing” children A.F. (Count 

One) and J.F. (Count Two), “causing substantial physical pain, 

illness or imprint [sic] of physical condition,” in violation of 

West Virginia Code § 61-8D-3(a).

• Counts Three and Four alleged that J.L. and D.F. together 

committed “‘Child Neglect Creating Risk of Serious Injury’ by 

unlawfully, intentionally and feloniously neglecting” A.F.

(Count Three) and J.F. (Count Four), “and that by gross neglect 

5 Although the complaint and subsequent preliminary hearings were not 

included in the appendix record, the parties’ briefs and documents in the record refer to 

these circumstances. We include facts related to the complaint and the preliminary hearings 

because the circuit court relied on arguments occurring at the preliminary hearings to rule 

on the motion to dismiss the indictment.
4

created a substantial risk of serious injury” to each child, in 

violation of West Virginia Code § 61-8D-4(c). 

• Counts Five and Six alleged that J.L. and D.F. together 

committed “‘Child Neglect Causing Bodily Injury’ by 

unlawfully, intentionally and feloniously neglecting” A.F. 

(Count Five) and J.F. (Count Six), and that neglect “caused 

bodily injury” to each child, in violation of West Virginia Code 

§ 61-8D-4(a).6

The indictment did not include any charges alleging violations of West Virginia Code 

§ 61-8D-4(b), child neglect causing serious bodily injury, previously charged in the 

complaint, nor did it charge the parents with any crimes relating to the parents’ third 

adopted child.

The parents moved the circuit court to dismiss the indictment, arguing that 

Counts One and Two failed to track the statutory language, as the indictment used the term 

“imprint,” which does not appear in the statute, and that Counts Three and Four alleged “a 

substantial risk of serious injury,” rather than reciting West Virginia Code § 61-8D-4(c)’s 

language by alleging “a substantial risk of serious bodily injury.”7 They also asserted that 

6 For the purposes of West Virginia Code § 61-8D-4(a), “‘[b]odily injury’

means substantial physical pain, illness or any impairment of physical condition.” W. Va. 

Code § 61-8B-1(9); see W. Va. Code § 61-8D-4(a) (referring to W. Va. Code § 61-8B-1 

for definition of “bodily injury”).

7 For the purposes of West Virginia Code § 61-8D-4(c), “‘[s]erious bodily 

injury’ means bodily injury which creates a substantial risk of death, which causes serious 

or prolonged disfigurement, prolonged impairment of health or prolonged loss or 

impairment of the function of any bodily organ.” W. Va. Code § 61-8B-1(10); see W. Va. 
5

during the preliminary hearing, the State maintained that the alleged “bodily injury” 

included psychological trauma. The parents contended that this Court’s holding in State v. 

Hartshorn, 175 W. Va. 274, 332 S.E.2d 574 (1985), precluded that interpretation of bodily 

injury, and that Counts One, Two, Five, and Six should be dismissed. Finally, they 

maintained that the circuit court had already heard the State’s evidence in the earlier abuse 

and neglect proceeding,

8 and that Counts Three and Four should be dismissed because 

“absolutely no evidence” supported “any verdict in this case, under any standard of proof, 

much less beyond a reasonable doubt, that the [parents] grossly neglected their children to 

the point that they were at a substantial risk of dying, suffering serious and prolonged 

disfigurement, or anything else.” 

In response, the State asserted that the parents were “not charged solely based 

on psychological harm, but also for physical abuse.” The State detailed the evidence of 

physical injuries and potential risks of serious bodily injury, which the State contended 

supported each of the indictment’s counts. The State further explained that it had an expert

witnesses who opined that psychological trauma or emotional abuse also can result in 

Code § 61-8D-4(c) (referring to W. Va. Code § 61-8B-1 for definition of “serious bodily 

injury”).

8 The parents did not name this proceeding specifically in their motion to 

dismiss but reminded the circuit court that it had “heard all the evidence that the State has 

in this regard.” In support of their argument before this Court, the parents repeatedly quote 

testimony from the abuse and neglect proceeding in their brief. However, the appendix 

record does not include any transcripts or documents from that proceeding.
6

physical impairment or injury that can meet the standard of bodily injury as defined in West 

Virginia Code § 61-8B-1. 

During the first hearing on the parents’ motion to dismiss, the parties focused 

on whether the State could prove the charged crimes at trial. The parents relied primarily 

on evidence submitted in the abuse and neglect proceeding and noted that the court “had 

days and days of testimony.” Arguing that a witness testified in the related abuse and 

neglect proceeding “that there was absolutely no evidence of physical injury,” the parents 

insisted that no evidence of gross neglect creating a substantial risk of serious injury

existed. The parents also repeatedly emphasized the State’s legal arguments during the 

preliminary hearing, asserting that those arguments were misleading and a misstatement of 

the law.The State contended it had evidence that (1) for Counts Three and Four, the parents 

grossly neglected the children, creating a substantial risk of serious bodily injury; and 

(2) for Counts One, Two, Five, and Six, the parents caused bodily injury that met the

statutory requirements charged, without relying on proof of any psychological harms 

caused by the parents.

After the hearing, the parents moved the court to exclude testimony and 

evidence of psychological harm or injury, which the State opposed. The circuit court held 

another hearing, where it requested the parties again address the parents’ motion to dismiss. 

The parents continued to assert that during the abuse and neglect proceeding, the State 
7

presented no evidence of bodily or physical injury. The State reiterated, in detail, that it 

would present evidence to the jury to satisfy the elements of each indictment count. At the 

hearing, the court granted the parents’ motion to dismiss, stating that “there is not sufficient 

evidence to support this indictment.” The court did not consider any grand jury testimony 

when making its determination, and neither party submitted transcripts of the grand jury 

testimony.

In the subsequent written order, the court explained that it had “extensive 

knowledge of the facts and evidence in this case due to numerous hours of testimony in a 

companion abuse and neglect case[.]” It also based its decision, in part, on the State’s

purported argument in a preliminary hearing on the criminal complaint that bodily injury 

could include psychological trauma, which the circuit court found false and a 

“misrepresentation of the law” based upon its reading of Hartshorn, 175 W. Va. 274, 332 

S.E.2d 574. Resolving “that the current law does not support the indictment” relating to 

Counts One, Two, Five, and Six, the court dismissed those counts.

9 The court dismissed

Counts Three and Four as well, reciting the statutory definitions of “gross neglect” and 

“serious bodily injury” in relation to the alleged violations of West Virginia Code 

§ 61-8D-4(c) and determining that it had “heard the State’s evidence while presiding over 

9 The court did not analyze Counts Five and Six individually, but instead 

recited the charges and stated, “[f]or all the reasons set forth herein, specifically as they 

relate to Counts [One] and [Two], these two counts must also be dismissed.”
8

the companion abuse and neglect case,” and found that no evidence supported “any verdict 

beyond a reasonable doubt” that the parents “‘grossly’ neglected their children to the point 

that the children were at a substantial risk of dying, [or] suffering serious or prolonged 

disfigurement.” The court reasoned that “the State put on a great deal of evidence in the

[parents’] abuse and neglect case in its attempt to prove aggravating circumstances, which 

this [c]ourt ruled did not exist.” In dismissing Counts Three and Four, the court concluded

that no evidence existed that the parents “exhibited a ‘clear disregard’ for their children’s 

health[,] safety[,] or welfare.” The circuit court concluded by dismissing the entire 

indictment against the parents and striking the matter from its docket.

The State then filed a petition for a writ of prohibition, requesting that this 

Court prevent the circuit court from enforcing its dismissal order. In this action, the State

argues that the circuit court had no authority to dismiss the indictment returned by a grand

jury against the parents. We agree and grant the writ of prohibition.

II.

STANDARD FOR ISSUANCE OF WRIT

In criminal cases, in limited circumstances the State may request a writ of 

prohibition, asking this Court to prevent a circuit court from enforcing an order:

The State may seek a writ of prohibition in this Court in 

a criminal case where the trial court has exceeded or acted 

outside of its jurisdiction. Where the State claims that the trial 
9

court abused its legitimate powers, the State must demonstrate 

that the court’s action was so flagrant that it was deprived of 

its right to prosecute the case or deprived of a valid conviction. 

In any event, the prohibition proceeding must offend neither 

the Double Jeopardy Clause nor the defendant’s right to a 

speedy trial. Furthermore, the application for a writ of 

prohibition must be promptly presented.

Syl pt. 5, State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded on other 

grounds by statute as recognized in State v. Butler, 239 W. Va. 168, 179 n.27, 799 S.E.2d 

718, 729 n.27 (2017).

In cases where the petitioner asserts that the lower court exceeded its 

legitimate powers, this Court has discretion to issue the writ: 

In determining whether to entertain and issue the writ of 

prohibition for cases not involving an absence of jurisdiction 

but only where it is claimed that the lower tribunal exceeded 

its legitimate powers, this Court will examine five factors: 

(1) whether the party seeking the writ had no other adequate 

means, such as direct appeal, to obtain the desired relief; 

(2) whether the petitioner will be damaged or prejudiced in a 

way that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; 

(4) whether the lower tribunal’s order is an oft repeated error 

or manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as a 

useful starting point for determining whether a discretionary

writ of prohibition should issue. Although all five factors need 

not be satisfied, it is clear that the third factor, the existence of 

clear error as a matter of law, should be given substantial 

weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
10

III.

DISCUSSION

As we discuss below, the circuit court exceeded its legitimate powers in 

dismissing the six-count indictment returned by the grand jury, which prevents the State 

from prosecuting the case. See Syl pt. 5, Lewis, 188 W. Va. 85, 422 S.E.2d 807. After we 

briefly review the function of the grand jury, discuss the circuit court’s limited ability to 

review an indictment, and consider the Hoover factors, we issue the writ of prohibition. 

See Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12.

A. The circuit court abused its legitimate powers by dismissing the indictment

An understanding of the basic purpose and procedures of the grand jury

process demonstrates that the circuit exceeded its legitimate powers by dismissing the 

indictment in this case. The West Virginia Constitution establishes the grand jury’s 

responsibility to determine whether to charge an individual with a felony: “No person shall 

be held to answer for treason, felony or other crime, not cognizable by a justice, unless on 

presentment or indictment of a grand jury.” W. Va. Const. art. III, § 4.10 In felony

10 Similarly, the Fifth Amendment to the United State Constitution provides 

that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless 

on a presentment or indictment of a grand jury[.]” While the United States Supreme Court 

has not held that the Fifth Amendment’s grand jury clause applies to the States, State v. 

Adams, 193 W. Va. 277, 280 n.3, 456 S.E.2d 4, 7 n.3 (1995) (citing Hurtado v. California, 

110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884)), we do look to federal case law, especially 

United States Supreme Court decisions, interpreting the Fifth Amendment’s grand jury 

clause as guidance in interpreting the West Virginia’s grand jury clause.
11

prosecutions, the grand jury’s position is constitutional, not merely ministerial, as it is “the 

tribunal representing the people, for the purpose of charging crime and designating the 

criminal.” See State ex rel. Noll v. Dailey, 72 W. Va. 520, 522, 79 S.E. 668, 669 (1913). 

Furthermore, the grand jury serves a “protective role” in the criminal justice system. State 

ex rel. Swanigan v. Cline, 177 W. Va. 107, 108, 350 S.E.2d 734, 736 (1986). Having “dual

function,” the grand jury behaves as “a sword” that investigates cases to bring accused 

individuals to trial on “just grounds” and as “a shield” to protect people against baseless 

prosecutions. State ex rel. Miller v. Smith, 168 W. Va. 745, 751, 285 S.E.2d 500, 504 

(1981). Ultimately, the grand jury decides whether probable cause exists to charge a person 

with committing a crime, not whether the evidence proves beyond a reasonable doubt that 

a defendant must be convicted of that crime; the grand jury’s role “is not to determine the 

truth of the charges against the defendant, but to determine whether there is sufficient 

probable cause to require the defendant to stand trial.” State ex rel. Pinson v. Maynard, 181 

W. Va. 662, 665, 383 S.E.2d 844, 847 (1989) (explaining the grand jury institution and its 

function).

11

After a grand jury returns an indictment, circuit courts have limited powers 

of review. A court may review an indictment “only for constitutional error and 

11 See also Bracy v. United States, 435 U.S. 1301, 1302, 98 S. Ct. 1171, 1172, 

55 L. Ed. 2d 489 (1978) (Rehnquist, J., in chambers) (“The grand jury does not sit to 

determine the truth of the charges brought against a defendant, but only to determine 
12

prosecutorial misconduct.” See, e.g., State v. Adams, 193 W. Va. 277, 284, 456 S.E.2d 4, 

11 (1995). Consequently, the court may not appraise the legality or sufficiency of the 

evidence considered by the grand jury in the absence of willful, intentional fraud. Syl., 

Barker v. Fox, 160 W. Va. 749, 238 S.E.2d 235 (1977) (“Except for willful, intentional 

fraud the law of this State does not permit the court to go behind an indictment to inquire 

into the evidence considered by the grand jury, either to determine its legality or its 

sufficiency.”).12 Instead, courts must presume that “every indictment is found upon proper 

whether there is probable cause to believe them true, so as to require him to stand his 

trial.”).

The grand jury consists of sixteen members. W. Va. R. Crim. P. 6(a). 

Typically, when determining whether to return an indictment that charges a person with a 

crime, a grand jury hears evidence provided by the State, and the prosecuting attorney may 

appear before the grand jury to present evidence, via sworn witnesses, of alleged criminal 

offenses. See Syl. pt. 2, State ex rel. Miller v. Smith, 168 W. Va. 745, 285 S.E.2d 500

(1981). Grand jurors must keep their proceedings secret, W. Va. R. Crim. P. 6(e)(2), and 

only the members of the grand jury deliberate and determine whether to return an 

indictment, W. Va. R. Crim. P. 6(d).

12 Both parties address the sufficiency of the evidence relating to the 

indictment in their briefing, with the State arguing that sufficient evidence supports the 

indictment, while the parents disagree. The question of whether sufficient evidence 

supports the indictment is not properly before this Court or the circuit court. See State v. 

Clements, 175 W. Va. 463, 472, 334 S.E.2d 600, 609-10 (1985). In their briefs, both parties 

rely on Syllabus point 7 of State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 

844 (1989), which provides that “[i]n reviewing the evidence for sufficiency to support the 

indictment, the court must be certain that there was significant and material evidence 

presented to the grand jury to support all elements of the alleged criminal offense.” 

However, Pinson’s creation of Syllabus point 7 arises from an allegation that a witness 

provided misleading testimony to the grand jury. Pinson, and particularly its Syllabus 

point 7, provides part of the procedure the circuit court follows in that circumstance. See 

generally Pinson, 181 W. Va. 662, 383 S.E.2d 844. We do not apply this syllabus point or 
13

evidence.” State v. Clements, 175 W. Va. 463, 472, 334 S.E.2d 600, 609-10 (1985). As the 

grand jury is not the “ultimate” fact finder, if the grand jury hears “improper” evidence, 

any purported error “can be corrected in the trial before a petit jury.” Id.;

13 see generally 

review the evidence supporting this indictment, as the underlying court did not consider 

whether any witnesses provided misleading testimony before the grand jury.

Furthermore, to the extent that the parents now argue that a grand jury 

witness provided testimony that was misleading and inconsistent with the evidence in the 

abuse and neglect proceeding, the parents did not argue that below, and, more significantly, 

the circuit court did not base its rulings after considering any testimony before the grand 

jury. In fact, the circuit court did not have any transcripts from the grand jury proceeding

to consider in ruling on the motion to dismiss.

13 See also Syl. pt. 2, State v. Slie, 158 W. Va. 672, 213 S.E.2d 109 (1975) 

(“The general rule is that the validity of an indictment is not affected by the character of 

the evidence introduced before the grand jury, and an indictment valid on its face is not 

subject to challenge by a motion to quash on the ground the grand jury considered 

inadequate or incompetent evidence in returning the indictment.”).

Evidence that satisfies a probable cause standard, allowing a grand jury to 

return an indictment, might not prove a defendant’s guilt beyond a reasonable doubt, but 

allowing a court “to inquire into the legality, or sufficiency” of the evidence considered by 

the grand jury would “substitute . . . the opinion of the court for that of the grand jury, and 

would ultimately lead to the destruction of the grand jury system.” State ex rel. Noll v. 

Dailey, 72 W. Va. 520, 522, 79 S.E. 668, 669 (1913). Moreover, should an indictment lack 

proper evidence, or be based upon illegal evidence, and the prosecution “produces no other 

evidence at the trial than what was before the grand jury” an acquittal will result. Id. Still, 

at trial, the prosecution may produce “new and additional evidence of guilt,” and “may not 

have had all its evidence before the grand jury.” Id. Dismissing an indictment before trial 

would “cut off” the prosecution’s right. Id.
14

Barker, 160 W. Va. 749, 238 S.E.2d 235 (refusing to quash an indictment based solely on 

hearsay testimony).14

A court also may review an indictment to determine whether the indictment 

is “constitutionally sufficient.” State v. Miller, 197 W. Va. 588, 599, 476 S.E.2d 535, 546 

(1996) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 2907, 41 

L. Ed. 2d 590 (1974)). A constitutionally sufficient indictment must (1) state the elements 

of the charged offense; (2) put a defendant on “fair notice” of the charge against which a 

defendant must defend; and (3) allow a defendant “to assert an acquittal or conviction” to 

avoid double jeopardy. Syl. pt. 6, in part, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 

(1999) (listing three factors establishing a sufficient indictment). However, a review for 

constitutional sufficiency is limited to the face of the indictment and does not extend to any 

evidence supporting the indictment. See Syl. pt. 2, id. (“Assessment of the facial 

sufficiency of an indictment is limited to its ‘four corners,’ and, because supplemental 

14 Similarly, in Costello v. United States, the Supreme Court of the United 

States explained that the Fifth Amendment to the United States Constitution does not 

require that a court quash an indictment based entirely on hearsay. See generally Costello, 

350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). The Costello Court noted that “[a]n 

indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its 

face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires 

nothing more.” Id. at 363, 76 S. Ct. at 409.
15

pleadings cannot cure an otherwise invalid indictment, courts are precluded from 

considering evidence from sources beyond the charging instrument.”).

The circuit court identified no reason relating to prosecutorial misconduct or 

constitutional sufficiency to support its dismissal of the indictment, and the parents did not 

argue those issues before the circuit court. Here, the circuit court dismissed the indictment 

on evidentiary grounds, because, it reasoned, no trial jury could convict the parents based 

on the evidence before the court during the related abuse and neglect proceeding. The 

circuit court noted that it had heard “numerous hours of testimony” in the abuse and neglect 

proceeding. It concluded that, for Counts One, Two, Five and Six, the “current law does 

not support the indictment,” basing its determination on its knowledge of the abuse and 

neglect proceeding’s evidence. For these counts, the court’s analysis repeatedly referred to 

a magistrate proceeding that predated the indictment and, in part, included charges that 

were not part of the indictment. For Counts Three and Four, the court specifically noted 

that the State’s evidence from the abuse and neglect proceeding could not cross the 

“beyond a reasonable doubt” threshold to secure a conviction. The resulting dismissal, 

based upon the circuit court’s interpretation of the relevant facts, rather than on a permitted 

reason for dismissal, exceeded the circuit court’s legitimate powers.

The circuit court’s dismissal based on evidentiary conclusions invaded the 

grand jury’s province. See Pinson, 181 W. Va. at 665, 383 S.E.2d at 847 (noting that an 
16

indictment determines that the grand jury found probable cause for a defendant to stand 

trial). Here, the grand jury determined probable cause existed to charge the parents with 

the crimes detailed in the indictment.

15 Circuit courts have no authority to examine an 

indictment to determine whether sufficient evidence exists to support it, much less whether 

evidence exists to support a guilty verdict, at the pretrial motions stage. As we have stated,

and now hold, “[a] circuit court may not grant a defendant’s pretrial motion to dismiss an 

indictment on the basis of the sufficiency of the evidence or whether a factual basis for the 

indictment exists.” State v. Finley, ___ W. Va. ___,___ n.8, ___ S.E. 2d ___, ___ n.8, 2023 

WL 6804936, at *3 (W. Va. Oct. 16, 2023); see also W. Va. R. Crim. P. 12(b)(1) (regarding 

pretrial motions). The circuit court had no power to dismiss the indictment based only on 

15 Furthermore, the circuit court persisted in discussing the State’s legal 

arguments at the preliminary hearing, although that hearing was of no consequence to the 

indictment’s validity. After the grand jury returned the indictment, the proceedings before 

the magistrate in determining whether probable cause existed for the criminal complaint, 

which in part regarded different statutes, were no longer at issue. See Syl. pt. 3, State ex 

rel. Rowe v. Ferguson, 165 W. Va. 183, 268 S.E.2d 45 (1980) (noting, in part, that if the 

State arrests a defendant via complaint when the offense “must be brought before the grand 

jury, the defendant is entitled to a preliminary hearing,” but if the State indicts a defendant 

“without a preliminary hearing or before one can be held, the preliminary hearing is not 

required”); see also W. Va. R. Crim. P. 5.1(b) (noting that if a magistrate finds “no probable 

cause to believe that an offense has been committed or that the defendant committed it” 

and subsequently dismisses a complaint against a defendant, “[t]he discharge of the 

defendant shall not preclude the state from instituting a subsequent prosecution for the 

same offense”).
17

its improper consideration of evidence in a prior proceeding, and the dismissal exceeded 

the court’s legitimate powers.

16

In sum, the circuit court had no authority to dismiss the indictment based 

upon the court’s knowledge of the evidence in the abuse and neglect proceeding and its 

opinion regarding the State’s likelihood of obtaining convictions by a petit jury. Because 

the circuit court exceeded its legitimate powers by dismissing the indictment, absent the 

writ, the State would be prevented from prosecuting the parents with the six charged 

felonies. See Syl pt. 5, Lewis, 188 W. Va. 85, 422 S.E.2d 807.

17

B. A writ of prohibition should issue

Having found that the circuit court exceeded its legitimate powers by 

dismissing the indictment, we now turn to the standards recited in Hoover to conclude the 

State is entitled to the requested writ of prohibition. Syl. pt. 4, State ex rel. Hoover v. 

16 The State correctly notes that abuse and neglect proceedings “are not 

simply ‘companion cases’ to criminal prosecutions.” In re Taylor B., 201 W. Va. 60, 66, 

491 S.E.2d 607, 613 (1997) (affirming a circuit court’s refusal, in a civil abuse and neglect 

proceeding, to abide by the State and the father’s plea agreement in a criminal proceeding 

where the State agreed it would terminate the abuse and neglect proceeding). They are 

separate cases, with separate standards of proof and concerns. As the Taylor B. Court 

recognized, the “‘primary goal’” in abuse and neglect cases is “‘the health and welfare of 

the children.’” Syl. pt. 2, in part, id. (quoting Syl. pt. 3, In re Katie S., 198 W. Va. 79, 479 

S.E.2d 589 (1996)). 

17 While Syllabus point five of State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992) 

requires that an application for a writ of prohibition be “promptly presented” by the State, 

this issue is not raised by either party, and we do not address it here.
18

Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). First, for the same reasons that the circuit 

court exceeded its legitimate powers, the circuit court’s order is “clearly erroneous as a 

matter of law,” meeting the third Hoover factor. Id., in part. The circuit court dismissed the 

indictment on impermissible grounds. Additionally, the State “will be damaged or 

prejudiced in a way that is not correctable on appeal,” the second Hoover factor, and the 

State has “no other adequate means, such as direct appeal, to obtain the desired relief,” the 

first Hoover factor. Id., in part. The State only has limited rights to appeal in criminal cases, 

and only if the right is “conferred by the Constitution or a statute.” Syl. pt. 1, in part, State

v. Jones, 178 W. Va. 627, 363 S.E.2d 513 (1987). While the State may appeal if a circuit 

court finds an indictment “bad or insufficient,” a bad or insufficient indictment means 

“there was a failure substantively to charge a crime,” which was not alleged here. State v. 

Walters, 186 W. Va. 169, 172, 411 S.E.2d 688, 691 (1991). The State established it is 

entitled to relief in prohibition. The circuit court’s findings, based on evidence presented 

in another proceeding, invaded the grand jury’s constitutionally prescribed function and 

was clear error, and the State may not appeal the circuit court’s ruling. For these reasons,

we grant a writ of prohibition, precluding the circuit court from dismissing the indictment.
19

IV.

CONCLUSION

For the reasons stated above, this Court grants the writ of prohibition to

prevent the circuit court from enforcing its order dismissing the six-count indictment.

Writ Granted.