Senate Bill No. 446
(By Senator McKenzie)
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[Introduced March 8, 2001; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section nine, article two, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to creating
graduating degrees of criminal assault and penalties therefor;
providing for the offense of aggravated vehicular assault; and
providing for the offense of menacing.
Be it enacted by the Legislature of West Virginia:
That section nine, article two, chapter sixty-one of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious assault; assault; battery; menacing; penalties.
(a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to
maim, disfigure, disable or kill, he shall, except where it is
otherwise provided, be guilty of a felony and, upon conviction,
shall be punished
according to the following:
(1) Malicious assault in the sixth degree. -- If the intended
victim suffers minor physical injury and the person did not use a
deadly weapon, he or she shall be confined in a correctional
facility for not less than one nor more than three years or fined
not more than five hundred dollars or both fined and confined:
Provided, That, for the purposes of this section, "minor physical
injuries" means a bruising or scratching of the skin of the
intended victim that did not cause any physical or mental
disability and that did not result in the intended victim needing
emergency care services or hospitalization;
(2) Malicious assault in the fifth degree. -- If the intended
victim suffers minor physical injury and the person used a deadly
weapon, he or she shall be confined in a correctional facility not
less than two nor more than four years or fined one thousand
dollars, or both fined and confined: Provided, That, for the
purposes of this section, deadly weapon has the meaning ascribed to
it in subsection nine, section two, article seven of this chapter;
(3) Malicious assault in the fourth degree. -- If the intended
victim suffers serious physical injury and the person did not use
a deadly weapon, he or she shall be confined in a correctional
facility not less than three nor more than five years: Provided,
That, for the purposes of this section, "serious bodily injury"
means any cut or laceration of the skin requiring clamping,
suturing or stitching to close, any broken bone, any permanent head
injury other than as set forth under subdivision five of this
subsection, any bruising of an internal organ or any other injury
that results in a physical or mental disability of permanent or
significant duration;
(4) Malicious assault in the third degree. -- If the intended
victim suffers serious physical injury and the person used a deadly
weapon, he or she shall be confined in a correctional facility not
less than four nor more than eight years;
(5) Malicious assault in the second degree. -- If the intended
victim suffers life threatening or physically altering injuries and
the person did not use a deadly weapon, he or she shall be confined
in a correctional facility not less than five nor more than ten
years: Provided, That, for the purposes of this section, "life
threatening injury" means an injury or injuries which likely would have resulted in the death of the intended victim had it not been
for the taking of heroic measures by medical personnel or the use
and accessibility of uncommon medical technology or expertise:
Provided, That, for the purposes of this section, "physically
altering injuries" means injuries so substantial that they result
in paralysis of a body part or body parts, the loss or loss of use
of a body part, such as a finger, toe or limb, a head injury
resulting in the loss of the sense of sight, hearing, smell or
touch or intellectual function, or a head injury that otherwise
results in a medically verifiable permanent injury to the brain
that substantially impairs the emotional or intellectual
functioning of the intended victim;
(6) Malicious assault in the first degree. -- If the intended
victim suffers life threatening or physically altering injuries and
the person used a deadly weapon, he or she shall be confined in a
correctional facility not less than six nor more than eleven years
.
by confinement in the penitentiary not less than two nor more than
ten years. If such act be done unlawfully, but not maliciously,
with the intent aforesaid, the offender shall be guilty of a
felony, and, upon conviction, shall, in the discretion of the
court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve
months and fined not exceeding five hundred dollars
(b) Aggravated vehicular assault. -- If any person maliciously
hits any person with a motor vehicle, thereby causing him or her
serious, life-threatening or altering bodily injury with intent to
maim, disfigure, disable or kill, he shall, except where it is
otherwise provided, be guilty of a felony and, upon conviction,
shall be confined in a correctional facility for not less than six
nor more than twelve years.
(b) (c) Assault. -- If any person unlawfully attempts to
commit a violent injury to the person of another or unlawfully
commits an act which places another in reasonable apprehension of
immediately receiving a violent injury, he shall be guilty of a
misdemeanor and, upon conviction, shall be confined in a county or
regional jail for not more than six months, or fined not more than
one hundred dollars, or both such fine and imprisonment.
(c) (d) Battery. -- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with the
person of another or unlawfully and intentionally causes physical
harm to another person that does not rise to the level of physical
harm required for conviction under subdivision (1), subsection (a) of this section, he shall be guilty of a misdemeanor and, upon
conviction, shall be confined in jail for not more than twelve
months, or fined not more than five hundred dollars, or both such
fine and imprisonment.
(e) Menacing. -- If any person by their words or gestures
knowingly causes another person to have a reasonable apprehension
of receiving physical harm in the future, or that their unborn
child, immediate family member or property will receive future
physical harm, injury or damage in the future, the person causing
the reasonable apprehension is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail
facility for not more than six months, or fined not more than two
hundred fifty dollars, or both fined and confined.
NOTE: The purpose of this bill is to create graduating degrees
of criminal culpability for unlawful assaults against victims.
Increased criminal culpability is determined by the extent of the
physical injury and whether a deadly weapon was used in the
assault. Therefore the old distinctions related to malicious and
unlawful wounding are completely rewritten, while misdemeanor
assault and battery remain, for the most part, unmodified. The
criminal offense of aggravated vehicular assault is, additionally,
created. The criminal offense of "menacing" is also created to
address situations when a perpetrator by mere words or gestures
does not necessarily place one in apprehension of receiving
immediate bodily harm, but rather places them in reasonable
apprehension for themselves, immediate family members, their unborn
child, or property, of receiving future physical harm, injury or damage.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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