State of West Virginia v. Tracy A. Back

Summary

The Supreme Court of Appeals of West Virginia affirmed Tracy A. Back’s conviction and sentence for threatening to commit a terrorist act under West Virginia Code § 61-6-24(b). The court held that a defendant must make a prima facie showing of willful, intentional fraud before a court may review evidence presented to a grand jury. It also held that the threatened act, rather than the threat itself, must satisfy the statutory definition of a terrorist act, and concluded that the evidence was sufficient.

Holdings

1. A defendant must make a prima facie showing of willful, intentional fraud in obtaining the indictment before a court may go behind the indictment to examine the legality or sufficiency of the evidence presented to the grand jury. Because Back expressly disclaimed and failed to establish such fraud, the circuit court properly denied his motion to dismiss.
2. Under West Virginia Code § 61-6-24(b), the State must prove a knowing and willful threat to commit a terrorist act, but need not prove an intent or present ability to carry out the threatened act. The threat itself need not satisfy the statutory definition of a terrorist act; the specific act threatened must be likely to cause serious bodily injury or property or environmental damage and must be intended to intimidate or coerce the civilian population, or satisfy another statutory intent category. The evidence that Back threatened an active-shooter-style mass killing to gain attention was sufficient.

Questions Presented

1. Whether the circuit court erred in refusing to dismiss the indictment based on allegedly misleading or insufficient evidence presented to the grand jury.
2. Whether the evidence was sufficient to prove that Back knowingly and willfully threatened to commit a terrorist act under West Virginia Code § 61-6-24(b).

Disposition

affirmed