Background
Zeto Tape, an inmate at Eastern Regional Jail in Berkeley County, West Virginia, was jointly indicted alongside fellow inmate Mohammed Sirleaf following a physical altercation with inmate Taevon Davis. The State presented evidence that Tape and Sirleaf attacked Davis together in a cell — kicking him in the face while he was on the floor — leaving him with bruises, lacerations, and a black eye. Sirleaf pleaded guilty before trial. Tape proceeded to a jury trial.
At trial, Davis denied that Tape caused him any permanent injury and claimed he injured his face by running into a wall. Tape argued that the disruption at the jail was caused not by his assault but by Davis’s brother, Elijah Paige, who became belligerent toward correctional officers roughly seventeen minutes after the incident. The State countered with a recorded jail phone call in which Tape admitted to assaulting Davis, another call in which Davis told his father that Tape and Sirleaf “f***** up” his eye by kicking him on the floor, and testimony from a corporal that Tape and Sirleaf had previously targeted Davis in a series of shootings outside the jail.
The jury convicted Tape on all four counts in the indictment: malicious assault, conspiracy to commit malicious assault, willful disruption of governmental processes, and offense by inmate causing injury to another. The Circuit Court of Berkeley County sentenced him by order entered December 28, 2023. Tape appealed, arguing the circuit court erred in denying his motions for judgment of acquittal on each count.
The Court’s Holding
The Supreme Court of Appeals affirmed all four convictions in a unanimous memorandum decision, finding no substantial question of law and no prejudicial error on any count. Applying de novo review and the standard that evidence must be viewed in the light most favorable to the prosecution, the court held that sufficient evidence supported the jury’s verdict on each charge. The court declined to hold oral argument and resolved the appeal under West Virginia Rule of Appellate Procedure 21(c).
On the malicious assault count, the court rejected Tape’s argument that the conviction failed because Davis suffered no permanent injury. West Virginia Code § 61-2-9(a) requires only bodily injury with intent to maim, disfigure, disable, or kill — not permanent harm — and the evidence of the kicking, the photographs of Davis’s injuries, and Tape’s own recorded admission satisfied that standard. On conspiracy, the court noted Tape conceded the existence of an agreement with Sirleaf and declined to disturb the jury’s implicit finding that the agreement was to commit malicious assault rather than mere battery, given the history of targeted violence against Davis.
On the willful disruption charge, the court rejected Tape’s attempt to shift blame to Paige, finding that Tape’s assault was the initial cause of the disruption — corroborated by testimony that a lieutenant had to abandon the intake section to investigate the attack. On the inmate-offense count, the court held that photographs of swelling and discoloration around Davis’s eye, combined with the recorded phone call evidence, provided sufficient evidence of bodily injury under West Virginia Code § 62-8-1(a), notwithstanding Davis’s denial at trial that he had been in a fight.
Key Takeaways
- West Virginia’s malicious assault statute, W. Va. Code § 61-2-9(a), does not require proof of permanent injury — evidence of bodily injury combined with intent to maim, disfigure, disable, or kill is sufficient for conviction.
- A victim’s in-court denial of the assault does not defeat a conviction where other evidence — including the defendant’s own recorded statements and photographic evidence — supports the jury’s finding of guilt.
- An inmate who initiates a jail assault cannot avoid a willful disruption of governmental processes conviction by pointing to a subsequent, independent act of disruption by a third party if his own attack was the precipitating cause.
- Appellate courts will credit all reasonable inferences in the prosecution’s favor on sufficiency-of-evidence review and will not disturb a jury’s credibility determinations.
Why It Matters
This decision reinforces the breadth of West Virginia’s malicious assault and inmate-offense statutes as applied to jail violence. Prosecutors need not prove lasting physical harm — a black eye and facial lacerations, documented by photographs and corroborated by recorded admissions, are enough. Defense strategies centered on victim recantation or the absence of medical treatment face a high bar when physical evidence and the defendant’s own words tell a different story.
The case also illustrates how courts analyze the causal chain in willful disruption charges arising from correctional facility incidents. By tracing the disruption back to the initial assault rather than to a later, independent provocation, the court signals that inmates cannot insulate themselves from disruption liability through intervening conduct by others — a holding with practical consequences for the prosecution of inmate-on-inmate violence in West Virginia facilities.