Jimmy Ray Bonnett Jr., by counsel Jeremy B. Cooper, appeals
the Circuit Court of Lewis County's January 4, 2017,
order denying his appeal of a magistrate court jury verdict.
The State of West Virginia, by counsel Gordon L. Mowen II,
filed a response in support of the circuit court's order.
Petitioner filed a reply. On appeal, petitioner argues that
the circuit court erred in finding that he was not prejudiced
by the State's amendment of the criminal complaint during
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
criminal complaint filed in magistrate court on March 8,
2015, petitioner was charged with domestic battery. The
criminal complaint set forth that petitioner violated the
domestic battery statute, and the portion of the criminal
complaint form in which the statutory language of the offense
was to be listed was completed as follows: "[a]ny person
who unlawfully and intentionally makes physical contact of an
insulting and provoking nature with his or her family or
household member or unlawfully and intentionally causes
physical harm to his or her family member[, ]" which
tracks the language of the 2011 version of the statute. The
facts alleged in support of this charge were that petitioner
"unlawfully and intentionally ma[d]e contact of an
insulting or provoking nature by slapp[ing] and push[ing] the
March 29, 2016, a jury trial commenced in magistrate court.
After opening statements, petitioner moved to dismiss the
domestic battery charge on the ground that the criminal
complaint included language from a prior version of the
domestic battery statute. In other words, it included language
not in effect at the time petitioner committed the offense.
The State, in response to the motion, moved to amend the
complaint to update the statutory language. The magistrate
court granted the State's motion. The State then
crossed-out the 2011 language and amended the criminal
complaint to include the updated statutory language as
follows: "[a]ny person who unlawfully and intentionally
makes physical contact force capable of causing physical pain
or injury with his or her family or household member or
unlawfully and intentionally causes physical pain to his or
her family or household members." Additionally, the
facts in support of the charge were amended to include that
petitioner "did unlawfully and intentionally make
physical contact force capable of causing physical pain or
injury by slapping and pushing the victim[, ]" and the
terms "a family or household member" were added.
Previously-asserted facts that comported with the prior
version of the statute were crossed out and replaced with the
handwritten updates provided above.
resumed, and petitioner was found guilty of domestic assault,
a lesser-included offense of domestic battery. Petitioner
moved for a new trial, which was denied by the magistrate
court. Petitioner then filed a "Petition for
Appeal" with the circuit court asserting various alleged
errors. Of specific relevance to the instant appeal is the
circuit court's ruling that no error resulted from the
State's amendment of the criminal complaint pursuant to
Rule 6 of the West Virginia Rules of Criminal Procedure for
Magistrate Courts. By order entered on January 4, 2017, the
circuit court denied petitioner's petition for appeal and
affirmed the magistrate court's judgment. It is from this
order that petitioner appeals.
previously articulated the following standard of review:
In reviewing challenges to the findings and conclusions of
the circuit court, we apply a two-pronged deferential
standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard,
and we review the circuit court's underlying factual
findings under a clearly erroneous standard. Questions of law
are subject to a de novo review.
Syl. Pt. 2, Walker v. W.Va. Ethics Comm'n, 201
W.Va. 108, 429 S.E.2d 167 (1997).
argues on appeal that the criminal complaint should have been
dismissed and that he was prejudiced by the amendment.
Petitioner cites West Virginia Code § 62-1-1 for the
proposition that "a basic requirement of a criminal
complaint is that it sets forth the offense charged, "
and argues that the criminal complaint here was defective for
failing to set forth an offense, and asserts that this defect
warranted dismissal. While acknowledging that criminal
complaints and indictments are "not comparable in every
circumstance, " petitioner relies upon State v.
Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006), to
support his contention that the criminal complaint should
have been dismissed for failing to charge an actual offense.
Id. at 698, 639 S.E.2d at 790, Syl. Pt. 5, in part
("Without objection, the indictment should be upheld
unless it is so defective that it does not, by any reasonable
construction, charge an offense under West Virginia law or
for which the defendant was convicted.")
begin, we note that West Virginia Code § 62-1-1 provides
only that "[t]he complaint is a written statement of the
essential facts constituting the offense charged. It shall be
made upon oath before a justice of the peace." We have
noted that criminal complaints are "the first of many
steps in a criminal prosecution. [Their] essential function
is informative, not adjudicative. It is enough that a
fair-minded magistrate could conclude that the facts and
circumstances alleged justify further criminal proceedings
and that the charges are not merely capricious."
State ex rel. Walls v. Noland, 189 W.Va. 603, 606,
433 S.E.2d 541, 544 (1993) (internal quotations and citation
omitted). A criminal indictment, on the other hand, is
sufficient under Article III, § 14 of the West Virginia
Constitution and W.Va. R. Crim. P. 7(c)(1) if it (1) states
the elements of the offense charged; (2) puts a defendant on
fair notice of the charge against which he or she must
defend; and (3) enables a defendant to assert an acquittal or
conviction in order to prevent being placed twice in
Syl. Pt. 6, in part, State v. Wallace, 205 W.Va.
155, 517 S.E.2d 20 (1999). As petitioner acknowledges, these
pronouncements make clear that the sufficiency of a criminal
complaint is judged differently from a criminal indictment.
Thus, we decline to find, pursuant to Johnson, that
the criminal complaint was so defective that dismissal was
the proper remedy.
also argues that, although Rule 6 of the West Virginia Rules
of Criminal Procedure for Magistrate Courts allows for the
amendment of a criminal complaint, the amendment prejudiced
his substantial rights. Petitioner relies on this Court's
articulation of what constitutes "substantial
rights" where the plain error doctrine is applied to