Full Opinion

FILED November 4, 2026 released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2026 Term _____________ No. 24-102 _____________ STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, V. JACQUAIN CRAWFORD, Defendant Below, Petitioner. ________________________________________________ Appeal from the Circuit Court of Marion County The Honorable David R. Janes, Judge Criminal Action No. CC-24-2022-F-245 REVERSED, IN PART, VACATED, IN PART, AND REMANDED ________________________________________________ Submitted: September 8, 2026 Filed: November 4, 2026 Lance E. Rollo, Esq. John B. McCuskey, Esq. Morgantown, West Virginia Attorney General Attorney for the Petitioner Andrea Nease, Esq. Deputy Attorney General Office of the Attorney General Charleston, West Virginia Attorneys for the Respondent JUSTICE KIRKPATRICK delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. “This Court applies a de novo standard of review to a circuit court’s denial of a motion for judgment of acquittal.” Syllabus Point 5, State v. Thompson, 253 W. Va. 23, 927 S.E.2d 885 (2026). 2. “The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). 3. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Crystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). i 4. “In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error 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.” Syllabus Point 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). 5. “‘“Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syl. [P]t. 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).’ Syllabus [P]oint 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).” Syllabus Point 1, Lively v. Rufus, 207 W. Va. 436, 533 S.E.2d 662 (2000). 6. “‘When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case[,] it is the duty of the courts not to construe but to apply the statute.’ Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).” Syllabus Point 6, State v. Jones, 251 W. Va. 611, 915 S.E.2d 389 (2025). ii 7. To sustain a conviction under the “use” prong of West Virginia Code § 61-7-15a (2016), the State must show that the defendant actively employed a firearm during the commission of a felony. 8. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.” Syllabus Point 6, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006), holding modified on other grounds by State v. Jako, 245 W. Va. 625, 862 S.E.2d 474 (2021). 9. “Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a testimonial statement is, generally, a statement that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Syllabus Point 8, State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006), holding modified on other grounds by State v. Jako, 245 W. Va. 625, 862 S.E.2d 474 (2021). iii 10. The Confrontation Clause of the Sixth Amendment to the United States Constitution and of Section 14 of Article III of the West Virginia Constitution bars admission of a forensic laboratory report made for the purpose of proving a particular fact through the in-court testimony of an expert who did not perform or observe the test reported. iv KIRKPATRICK, Justice: Following a one-day trial, a petit jury in Marion County, West Virginia, convicted the petitioner, Jacquain H. Crawford, of five drug- and firearm-related felonies. After the jury returned its verdict, the petitioner filed a motion for judgment of acquittal notwithstanding the verdict or, in the alternative for a new trial, stating two grounds for relief. First, the petitioner claimed that the evidence presented at trial was insufficient to sustain his conviction for use or presentation of a firearm during the commission of a felony. Second, the petitioner alleged that his Sixth Amendment right of confrontation was violated when the circuit court allowed the State to call a substitute witness who was not the analyst who performed the analysis on the seized controlled substances. By order entered on November 17, 2023, the circuit court denied the petitioner’s motion. The petitioner appeals. Upon review of the parties’ briefs1 and oral arguments, the appendix record, and pertinent legal authority, we find that the circuit court erred in denying the petitioner’s motion. First, the evidence was insufficient to prove use or presentment of a firearm during the commission of a felony because the record contains no evidence that the petitioner actively employed a firearm during the commission of a felony. Second, we find that the petitioner’s right to confrontation was violated by the State’s failure to call the analyst who 1 Because a new Attorney General took office while this appeal was pending, his name has been substituted as counsel. 1 analyzed the drugs and prepared the forensic laboratory report. Accordingly, we reverse the circuit court’s order denying the petitioner’s motion, reverse the petitioner’s conviction for use or presentation of a firearm during the commission of a felony, vacate the petitioner’s convictions for possession with intent to deliver cocaine and fentanyl, and remand this case for a new trial on the two charges of possession with intent to deliver cocaine and fentanyl. I. FACTUAL AND PROCEDURAL HISTORY On September 9, 2021, the petitioner and a female entered a Walmart in White Hall, West Virginia. A Walmart asset protection employee observed the couple, believed they were shoplifting, confronted them, and eventually called law enforcement, describing to law enforcement the vehicle the petitioner and his female companion were driving when they left Walmart. Law enforcement stopped and searched the vehicle, and the petitioner was arrested and eventually indicted on six counts: (1) possession with intent to deliver a controlled substance, cocaine; (2) possession with intent to deliver a controlled substance, fentanyl; (3) use or presentation of a firearm during the commission of a felony; 2 (4) possession of a firearm by a prohibited person; (5) conspiracy to commit felony controlled substance offenses; and (6) prohibited person carrying a concealed firearm.2 A one-day jury trial commenced on July 19, 2023, and four witnesses testified. The first witness was the Walmart asset protection employee who observed and confronted the petitioner in the Walmart store regarding suspected shoplifting. He testified that the petitioner had a “fanny pack thing over his shoulder,” and surveillance videos admitted into evidence showed the petitioner wearing the fanny pack. The witness testified that he called law enforcement and described the vehicle that petitioner and his companion were driving. Based on this information, Sergeant Steve Garrett of the Marion County Sheriff’s Department responded to Walmart and stopped the described vehicle while it was still in the Walmart parking lot. Sergeant Garret testified that he approached the female driver of the vehicle and smelled marijuana. He stated that the only other occupant of the vehicle was the petitioner who was in the passenger seat, but he did not interact meaningfully with the petitioner. The third witness to testify was Sergeant Charles Funk with the White Hall Police Department. He testified that he arrived at the scene after Seargeant Garrett. Based on the smell of marijuana coming from the vehicle, Sergeant Funk searched the vehicle. 2 A copy of the indictment is not included in the appendix record, but the charges were read by the court at the commencement of the jury trial, the transcript of which is provided in the appendix. 3 He testified that “[t]ucked under the front passenger seat was a black fanny pack” that appeared to be the same fanny pack seen on the petitioner in the surveillance videos. Sergeant Funk testified that the fanny pack contained various items including a loaded firearm; four separate baggies of a substance believed to be cocaine; and two other baggies, each containing fifteen pills “that were stamped M30, blue in color,” and believed to be oxycontin. On cross-examination, Sergeant Funk testified that “the first time anybody, law enforcement or otherwise, . . . saw the gun” was when he discovered it in the fanny pack that was under the passenger seat of the vehicle. He testified that the petitioner did not present the firearm to anyone and did not use the firearm. On re-direct, the State questioned Sergeant Funk about why, in his experience, people who traffic in controlled substances possess firearms. Sergeant Funk responded: “to protect themselves and merchandise.” The prosecutor then asked Sergeant Funk for clarification about what someone is doing with a firearm if they are protecting themselves and their merchandise with that firearm, to which Sergeant Funk responded: “[p]ossessing it.” The prosecutor persisted, asking whether such a person is “using the firearm,” and Seargeant Funk responded affirmatively. On re-cross, Seargeant Funk conceded that the petitioner did not “deploy a weapon.” The State’s final witness was Blake Kinder of the West Virginia State Police Forensic Laboratory. At the time the State called Mr. Kinder, the petitioner raised no 4 objection to Mr. Kinder testifying or being qualified as an expert. Mr. Kinder’s testimony began with a discussion about the process for how items are received and processed at the forensic laboratory. When the State sought to admit the West Virginia State Police Forensic Laboratory Report, prepared by Tiffany A. Neu, Forensic Scientist, and marked as State’s Exhibit 7, the prosecution asked Mr. Kinder if those were “[his] findings regarding [his] analysis,” and Mr. Kinder responded that the conclusions in the forensic laboratory report were “the findings of the scientist who performed the test.” At this point, the petitioner’s counsel objected. Additional questions revealed that Ms. Neu prepared the report but that she “had to relocate” and was no longer employed by the State Police Forensic Laboratory. The following relevant exchange took place: Q: And [the report is] signed under authorized by Tiffany Neu; right? A: Correct. Q: But it also appears to have the signature of one Blake Kinder on there as well? A: Yes, that is correct. As part of our peer review process, all case files are one hundred percent administratively reviewed and technically reviewed. Q: So you were part of this examination and this testing, these results. A: While I did not perform the testing that was done in this case, I had the chance to review the data that was generated. And I came to the same conclusions that Ms. Neu did. 5 Q: And you, in fact, are what, you’re the supervisor of this section or something to that effect? A: I am not the supervisor. I am the technical leader. Q: The technical leader. So you lead the group that does this analysis? A: As technical leader my main responsibilities do more with instrument validations, calibrations, things of that nature. Q: To make sure that the tests are done correctly? A: Yes. (Emphasis added). Following this exchange, the petitioner’s counsel objected to the fact that Ms. Neu was identified on the witness list, that Mr. Kinder was never disclosed as a witness, and that Mr. Kinder was not the person who performed the tests but was, instead, testifying about the work of Ms. Neu. The State responded that they did not know until “the last 10 days or so” that Ms. Neu was no longer at the forensic laboratory. The circuit court expressed some hesitation but agreed to permit Mr. Kinder to testify regarding the report and then admitted into evidence the forensic laboratory report, as State’s Exhibit 7. The last page of the forensic laboratory report states that it was “Authorized by: Tiffany A. Neu, Forensic Scientist” and is signed by Tiffany A. Neu. Below Ms. Neu’s signature and the “Enclosure” notation, is a line that reads: “Reviewed by Blake Kinder.” Below that line are hand-written initials, “BAK.” 6 Mr. Kinder continued to testify regarding the forensic laboratory report. During Mr. Kinder’s testimony about the report, there were several questions he could not answer with certainty because he had not performed the testing on the seized substances, and his testimony repeatedly referred to Ms. Neu’s analysis. Ultimately, Mr. Kinder’s testimony established that the baggies of white power, identified in the laboratory report as Items 1.1.1, 1.1.2, and 1.1.3, contained cocaine, and the pills, identified in the laboratory report as Item 1.2.1, contained fentanyl. At the conclusion of the petitioner’s trial, the jury found the petitioner guilty of (1) possession with intent to deliver a controlled substance, cocaine; (2) possession with intent to deliver a controlled substance, fentanyl; (3) use or presentation of a firearm during the commission of a felony; (4) possession of a firearm by a prohibited person; and (5) prohibited person carrying a concealed firearm. The jury found the petitioner not guilty of conspiracy to commit felony controlled substance offenses. On July 24, 2023, the petitioner filed “Defendant’s Motion for Judgment of Acquittal Nothwithstanding the Verdict, or, In the Alternative, Motion for New Trial,” arguing (1) that the evidence presented at trial was insufficient to sustain a conviction for the use or presentation of a firearm during the commission of a felony, and (2) that his Sixth Amendment right to confront the forensic scientist who performed the analysis upon which the State relied was violated when the court permitted Mr. Kinder to testify regarding the forensic laboratory report prepared by Ms. Neu. The State responded, and the circuit 7 court heard arguments on November 1, 2023. By order entered on November 17, 2023, the court denied the petitioner’s motion. With respect to the petitioner’s use or presentation of a firearm during the commission of a felony, the court found the question of whether the petitioner “used or presented a firearm” during the commission of a felony was a question of fact to be resolved by the jury and that the evidence presented was sufficient to sustain the conviction. With respect to the Confrontation Clause issue, the court found that Mr. Kinder, “as Ms. Neu’s supervisor,” reviewed and initialed the certification to the laboratory report, and the petitioner’s right to be confronted with the analyst who made the certification was satisfied by Mr. Kinder’s testimony. The petitioner was sentenced on January 10, 2024, and he now appeals. II. STANDARDS OF REVIEW The petitioner states two assignments of error, both of which arise from the circuit court’s denial of the petitioner’s motion for judgment of acquittal notwithstanding the verdict or, in the alternative, motion for a new trial. In his first assignment of error, the petitioner argues that the evidence presented at trial was insufficient to sustain his conviction for use or presentation of a firearm during the commission of a felony. In challenging the sufficiency of the evidence, the petitioner’s first assignment of error concerns the denial of his motion to the extent that he moved for judgment of acquittal. State v. Phillips, 205 W. Va. 673, 677, 520 S.E.2d 8 670, 674 (1999) (“The motion for judgment of acquittal challenges the sufficiency of the evidence. 2 Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure 292 (2d ed.1993).”). “This Court applies a de novo standard of review to a circuit court’s denial of a motion for judgment of acquittal.” Syl. Pt. 5, State v. Thompson, 253 W. Va. 23, 927 S.E.2d 885 (2026). In Syllabus Point 1 of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), this Court explained the standard of review governing evidentiary sufficiency challenges in criminal cases: The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Before evaluating the sufficiency of the evidence, however, this Court is required to examine the statute the petitioner was convicted of violating, thereby presenting a purely legal question. Our review of the statutory language is de novo: “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Crystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). The petitioner’s second assignment of error, concerning the alleged Confrontation Clause violation, raises evidentiary and constitutional issues and arises from 9 the circuit court’s denial of the petitioner’s motion to the extent that he sought a new trial. Our general standard for reviewing findings and rulings made by the trial court is as follows: In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error 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. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). With respect to a circuit court’s ruling on a motion for a new trial, we have held that: “ ‘Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.’ Syl. [P]t. 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).” Syllabus [P]oint 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). Syl. Pt. 1, Lively v. Rufus, 207 W. Va. 436, 533 S.E.2d 662 (2000). As a general matter, “‘[r]ulings on the admissibility of evidence are largely within a trial court’s sound discretion and should not be disturbed unless there has been an abuse of discretion.’ State v. Louk, [171 W.Va. 639,] 301 S.E.2d 596, 599 (1983).” Syl. Pt. 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983). However, the admissibility issue raised in this case alleges constitutional error and, therefore, presents a question of 10 law. “We review questions of law de novo.” May v. May, 214 W. Va. 394, 398, 589 S.E.2d 536, 540 (2003); see also State v. Waldron, 228 W. Va. 577, 723 S.E.2d 402 (2012) (concluding that alleged violations of the Confrontation Clause are reviewed de novo). With these standards in mind, we proceed to address the parties’ arguments. III. DISCUSSION A. Use or Presentation of Firearm At the conclusion of his trial, the jury convicted the petitioner of five of the six charged felonies, including count three of the indictment, which charged the petitioner with use or presentation of a firearm during the commission of a felony, in violation of West Virginia Code § 61-7-15a (2016). That Code Section provides: As a separate and distinct offense, and in addition to any and all other offenses provided for in this code, any person who, while engaged in the commission of a felony,[3] uses or presents a firearm shall be guilty of a felony and, upon 3 In Section B, below, we vacate the predicate felony charges for possession with intent to deliver controlled substances. Although the vacation of predicate felonies would warrant vacation of the petitioner’s conviction for use or presentation of a firearm during the commission of a felony, we find it necessary to address the substance of the petitioner’s first assignment of error because the two predicate felonies are remanded for a new trial. If we were to decide this first assignment of error solely in reliance on the vacation of the predicate felonies, then the petitioner’s conviction for use or presentation of a firearm during the commission of those felonies would also be remanded for a new trial, at which time the issues involving the petitioner’s alleged “use” of the firearm would again be presented to the trial court. Therefore, to preclude recurrence of the errors below, we find it necessary to address the merits of the petitioner’s first assignment of error. 11 conviction, shall be imprisoned in a state correctional facility for not more than ten years. W. Va. Code § 61-7-15a (emphasis added). In his first assignment of error, the petitioner argues that the evidence presented at trial was insufficient to sustain his conviction for use or presentation of a firearm during the commission of a felony,4 because the State presented no evidence that he used or presented a firearm, a necessary element under West Virginia Code § 61-7-15a. The petitioner claims that the State seeks to “rewrite the statute . . . to include the element of ‘possession’ of a firearm” in addition to “uses or presents.” He contends that West Virginia Code § 61-7-15a is unambiguous and does not include the word “possession,” which the Legislature would have included had it intended or desired for “possession” to satisfy an element of the offense. Therefore, the petitioner maintains that the State was required to prove that he either used or presented a firearm during the commission of a felony, which it failed to do. 4 The heading of the petitioner’s first assignment of error also alleges that the evidence presented was insufficient to sustain a conviction “on several charges,” including both “Possession with the Intent to Deliver a Controlled Substance charges.” However, the petitioner makes no sufficiency argument regarding any of the charges other than his conviction for use or presentation of a firearm during the commission of a felony. Therefore, we only address the sufficiency of the evidence proffered in support of the petitioner’s conviction for use or presentation of a firearm during the commission of a felony. See State v. Sites, 241 W. Va. 430, 442, 825 S.E.2d 758, 770 (2019) (declining to address an inadequately briefed issue that failed to comply with the West Virginia Rules of Appellate Procedure). 12 Implicitly conceding that the petitioner did not “present” a firearm, as used in West Virginia Code § 61-7-15a, the State focuses its arguments on “use.” The State contends that the petitioner’s “actions [in this case] qualify as ‘use’ beyond mere possession.” The State’s theory below was that the petitioner “used” the firearm insofar as he had it to protect himself and “[his] product.” Thus, as the State argues here, the firearm was “more than incidentally present; it was a centerpiece of Petitioner’s drug enterprise.” Therefore, the State claims that the word “uses” in West Virginia Code § 61-7-15a should be read broadly enough to encompass the petitioner’s possession of the firearm in this case and that the evidence was sufficient to convict the petitioner of use or presentation of a firearm during the commission of a felony. We have not previously addressed or defined “use” for purposes of West Virginia Code § 61-7-15a. Beginning with the language of the statute, we find that West Virginia Code § 61-7-15a is not ambiguous and clearly applies to “any person who, while engaged in the commission of a felony, uses or presents a firearm.” (Emphasis added).5 “‘When a statute is clear and unambiguous and the legislative intent is plain, the statute 5 We recently held that West Virginia Code § 61-7-15a is clear and unambiguous. Syl. Pt. 7, State v. Jones, 251 W. Va. 611, 915 S.E.2d 389 (2025) (“West Virginia's statute prohibiting the use or presentment of a firearm in the commission of a felony, West Virginia Code § 61-7-15a, is clear and unambiguous and applies to all felonies, not specific classes of felonies.”). The focus of Jones was on the predicate felonies underlying a conviction, rather than on what it means to “use” a firearm. Therefore, we consider the statute again, with our focus on the word “uses.” 13 should not be interpreted by the courts, and in such case[,] it is the duty of the courts not to construe but to apply the statute.’ Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).” Syl. Pt. 6, State v. Jones, 251 W. Va. 611, 915 S.E.2d 389 (2025). “[I]n so doing, [the statute’s] words should be given their ordinary acceptance and significance and the meaning commonly attributed to them. 50 Am.Jur., Statutes, Section 225.” State v. Epperly, 135 W. Va. 877, 884, 65 S.E.2d 488, 492 (1951); see also Smith v. United States, 508 U.S. 223, 228 (1993) (discussing the meaning of the word “use” in 18 U.S.C. § 924(c)(1) and noting that “[w]hen a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning”). “We are mindful that some interpretation or construction is involved when we assign statutory words their ordinary significance and meaning,” but will not impose another meaning on a plain and unambiguous statute under the guise of interpretation. State v. McMutary, 250 W. Va. 78, 86, 902 S.E.2d 410, 418 (2024). The ordinary and natural meaning of the verb “use,” as defined in Black’s Law Dictionary, is “[t]o employ for the accomplishment of a purpose; to avail oneself of.” Black’s Law Dictionary (12th ed. 2024). And in considering what it means to “use” a firearm for purposes of 18 U.S.C. § 924(c)(1) (1994), a federal statute that imposes penalties where a defendant “uses or carries a firearm” during the commission of certain crimes, the United States Supreme Court, in Bailey v. United States, 516 U.S. 137 (1995), interpreted “uses” as a verb of action. In Bailey, a vehicle search revealed ammunition and 14 cocaine in the passenger compartment of a vehicle and “a large amount of cash and a bag containing a loaded 9-mm. pistol” in the trunk.6 Id. at 139. As in this case, the prosecution argued “that drug dealers frequently carry a firearm to protect their drugs and money as well as themselves.” Id. The Court of Appeals for the District of Columbia Circuit affirmed the conviction and found the firearm was sufficiently accessible and proximate to the drugs and drug proceeds that the jury could properly infer that Bailey had used the gun in the trunk to protect his drugs and drug proceeds and to facilitate sales. Id. The Supreme Court found error in the “accessibility and proximity” standard adopted by the Court of Appeals, finding that it “provides almost no limitation on the kind of possession that would be criminalized; in practice, nearly every possession of a firearm by a person engaged in drug trafficking would satisfy the standard[.]” Bailey, 516 U.S. at 144. As the Court noted, “[i]f Congress had intended to deprive ‘use’ of its active connotations, it could have simply substituted a more appropriate term—‘possession’—to cover the conduct it wished to reach.” Id. at 148.7 The Supreme Court ultimately 6 The State claims that Bailey is factually distinguishable because the firearm in Bailey was located in the trunk of the vehicle as opposed to the present case, where it was found in a fanny pack under the passenger seat, which fanny pack had been seen on the petitioner’s person. This distinction does not affect our conclusion under the “active- employment” analysis adopted herein and described more thoroughly below. 7 In response to the Bailey opinion, in 1998 Congress added language extending the application of 18 U.S.C. § 924(c)(1) to “any person who . . . in furtherance of any such crime, possesses a firearm.” See 18 U.S.C. § 924(c)(1) (1998); see also Watson v. United States, 552 U.S. 74, 77 n.3 (2007) (noting that “[i]n 1998, Congress responded to Bailey by amending § 924(c)(1).”). 15 concluded that “to sustain a conviction under the ‘use’ prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.” Id. at 150 (emphasis added). Accordingly, the Supreme Court found that the evidence presented was insufficient to sustain a conviction for “use” of a firearm in the absence of any evidence that the defendant had actively employed the firearm during and relation to the predicate crime. Id. at 150-151. In urging us to adopt a broader construction of the term “use,” the State first suggests that “uses” includes inactive possession of a firearm. However, the Legislature did not include the word “possession” in the statute, and we will not read into the statute “that which it does not say.” See State v. Jones, 251 W. Va. 611, 624, 915 S.E.2d 389, 402 (2025) (refusing to “arbitrarily read into” West Virginia Code § 61-7-15a “that which it does not say” regarding limitations on predicate felonies). As the Supreme Court noted in Bailey, [h]ad [the Legislature] intended possession alone to trigger liability under [the statute], it easily could have so provided. This obvious conclusion is supported by the frequent use of the term “possess” in the gun-crime statutes to describe prohibited gun-related conduct. See, e.g., [West Virginia Code §§ 61-7-7 (2026), 61-7-8 (2026), 61-7-9 (1989), 61-7-11a (2025)]. Bailey, 516 U.S. at 143. 16 Second, the State relegates the Bailey opinion to a footnote in its response brief and relies, instead, on Smith v. United States, 508 U.S. 223 (1993),8 in which the 8 The State cited several other cases in support of a broader definition of “use,” but none are persuasive. For instance, in United States v. Hall, 20 F.3d 1084 (10th Cir. 1994), the Tenth Circuit found that a firearm located in a bedroom closet was not being “used” for purposes of 18 U.S.C. § 924(c)(1). Hall applied a pre-Bailey standard that considered whether there was “ready access” to a firearm and whether the firearm was an integral part of the criminal undertaking. After Bailey, the Tenth Circuit’s “broader definition” referred to by the State is no longer good law. See Smith v. United States, 516 U.S. 1105 (1996) (remanding decision based on Hall to the Tenth Circuit “for further consideration in light of Bailey”); see also United States v. Hager, 969 F.2d 883 (10th Cir. 1992) (establishing “ready access” standard), abrogated by Bailey, 516 U.S. 137. Likewise, the Eighth Circuit case of United States v. Lara-Ruiz, 781 F.3d 919 (8th Cir. 2015) is unpersuasive, as it involved a conviction under 18 U.S.C. § 924(c) where the defendant “had displayed guns to his drug customers and used a handgun to hit another customer in her head and to shoot her unoccupied car.” Id., 781 F.3d at 921. The court in that case never discussed the definition of “use,” and the language quoted by the State regarding a sufficient nexus between the gun and the drug trafficking offense was from pre-Bailey case law. Id., 781 F.3d at 924. Additionally, the out of jurisdiction state court cases cited by the State are inapplicable. In Garrett v. State, 998 S.W.2d 307 (Tex. App. 1999), the court concluded the evidence was sufficient to prove that the defendant used a deadly weapon during the commission of a felony where the victim testified that the defendant had the gun in his hand while he sexually assaulted her and that she yielded to his demands because he had the gun. Id. at 312. As discussed in footnote 10, infra, this clearly falls within the “active- employment understanding of ‘use’” as it was “a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense . . . [and] the silent but obvious and forceful presence of a gun[.]” Bailey, 516 U.S. at 149. Lastly, the defendant in Fowler v. State, 375 So.2d 879 (Fla. Dist. Ct. App. 1979) was convicted of “burglary while armed.” The lower court reclassified his conviction as a life felony because a firearm was involved, but the appellate court remanded for resentencing because the sentence enhancement statute did not apply to a “felony in which the use of a weapon or firearm is an essential element.” The opinion never discussed what it means to “use” a firearm. 17 Supreme Court found that the exchange of a firearm for narcotics constituted “use” of a firearm during a drug trafficking crime. In reaching its conclusion, the Smith Court determined that, “[b]y attempting to trade his [firearm] for the drugs, [the defendant] ‘used’ or ‘employed’ it as an item of barter to obtain cocaine; he ‘derived service’ from it because it was going to bring him the very drugs he sought.” Smith, 508 U.S. at 229. The holding in Smith is not inconsistent with the “active-employment” standard set forth in Bailey. Although Smith declined to limit “use” to mean that a firearm must be “used as a weapon,” the holding still “adhered to an active meaning of the term.” Bailey, 516 U.S. at 148.9 For these reasons, we find the United States Supreme Court’s “active- employment” analysis in Bailey persuasive and applicable to the term “uses” in West Virginia Code § 61-7-15a. Therefore, we adopt that Court’s reasoning and holding and conclude that to sustain a conviction under th