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.