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Gun Charges Reinstated Against Middle Schooler

ELKINS, W.Va. (CN) - Reinstating criminal charges against a boy who brought a gun to school, the West Virginia Supreme Court agreed with prosecutors that the student's alleged motivation made the action one of violence.

J.Y., as he is identified in the court record, was 12 when he brought a loaded semi-automatic pistol to school on Sept. 13, 2013, according to the April 9 opinion.

He allegedly later told police that he took the gun from his grandparents' home to scare a girl who had been bullying him.

Another student reported to the principal that J.Y. showed off a gun to other children the night before school, and the principal confronted J.Y. and found the gun before he was able to do anything with it.

Facing a juvenile petition in Ohio County for possession of a deadly weapon on the premises of an educational facility, J.Y. underwent a psychological evaluation that determined he had the IQ of a 9-year-old and functions on a third-grade level.

J.Y. moved to dismiss based on the psychologist's finding that he was not competent to stand trial, but the circuit court's determination rested on whether the charged offense "involved an act of violence against a person."

West Virginia law says an incompetent person involving an act of violence must remain under court jurisdiction, committed to a mental-health facility "that is the least restrictive environment to manage" him and protect the public, until the maximum sentence he would have faced expires.

In finding that J.Y.'s action was not one of violence, the circuit court noted that he did not brandish the weapon or make specific threats against anyone before the gun was discovered.

Judge David Sims with the First Circuit dismissed the petition against J.Y., but West Virginia and Ohio County prosecuting attorney Scott Smith asked the state Supreme Court for a writ of prohibition to prevent that petition's dismissal.

Granting such relief Monday, the court cited precedent that defines an act of violence against a person as encompassing "acts that indicate the incompetent defendant poses a risk of physical harm, severe emotional harm, or severe psychological harm to children."

"It matters not whether someone suffered actual harm as a result of the events that led to the charged offense; rather, the question is whether the actions of the incompetent defendant pose a risk of physical, emotional or psychological harm to children," Justice Allen Loughry wrote for the court.

The ruling emphasizes that J.Y. brought the gun loaded with three rounds in the magazine and one in the chamber ready to fire, and he had an extra magazine loaded with seven rounds.

School personnel had been aware of the bullying situation and had been checking in on J.Y., but J.Y. told police that had only made the bullying worse, Loughry added.

"J.Y.'s clearly expressed intention to use the deadly weapon to scare the girl who had been bullying him, coupled with his belief that the bullying incidents were escalating as a result of the intervention by school personnel, makes it more likely than not that he would have brandished and possibly fired the gun, if more time had elapsed before it was discovered by the principal," Loughry wrote.

The strong likelihood that J.Y. would have brandished the weapon if not caught so early, coupled with the severe physical and psychological harm his actions could have caused the other children in the school, make his crime an act of violence against a person under West Virginia code, the court found. To find otherwise "would defy logic and common sense," Loughry wrote.

On remand, the circuit court must keep in mind that cases regarding incompetent defendants must be reviewed at minimum annually, and that J.Y. is to be put in an environment that is least restrictive to him while still protecting the public, the ruling states.

Attorney General Patrick Morrisey and Assistant Attorney General Christopher Dodrill represented the state and Smith, while J.Y. was represented by Justin Herschberger.

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