CHARLESTON, W.Va. — West Virginia DNR Director Stephen McDaniel has had a misdemeanor domestic battery charge wiped out, but still must comply with a deferred prosecution agreement.
“He has to complete the terms of the agreement completely and if he completes that the case will be dismissed,” said Bryan Shorstein, executive director for the State Attorney’s office in St. Augustine, Fla.
McDaniel was accused of threatening his ex-wife. An initial police report stated she feared for her life.
An order filed by a Florida judge this week might have made it seem like McDaniel was off the hook.
The “Order removing erroneously filed information” was filed Monday. The order contained additional language that retroactively wiped out the charge, as if it never existed.
The situation is a little more complicated than it sounds.
An information — basically a charge — was filed by accident earlier this month, lawyers on both sides of the case agreed.
McDaniels’ lawyer, Terry Shoemaker, said that happened when he was talking informally with the prosecutor’s office about the deferred prosecution.
“It kind of all got out of whack,” Shoemaker said. “I’d been talking to one prosecutor. The case was actually in another prosecutor’s division. One person in the office didn’t know what the other one was doing.”
So the information was filed in error.
“So that document was the error that had to be corrected,” said Shorstein in the prosecutor’s office. “Nothing changed the fact that both parties made the deferred prosecution agreement.”
He said such deferred prosecution agreements are common in Florida, particularly for first-time offenders.
“It’s really a common disposition for a first time offense disposition case,” Shorstein said. “In a situation like this, domestic violence cases, the conditions they have to complete are pretty intense.”
Shumaker said his client should have no trouble abiding by the terms.
“He jumps through a few hoops and he never has to face these charges,” Shumaker said.
The deferred prosecution agreement lasts for a year but may be terminated early after nine months.
It says McDaniel must not commit any criminal offenses while it’s in effect, must complete an approved batterer’s prevention program, must not possess or consume alcohol or other mind-altering substances, may not enter bars and may have no contact with his ex-wife.
It states, “If the state discovers the defendant has violated any conditions of this agreement, this agreement shall be rendered null and void and the State of Florida may recommence prosecution of this action.”
The agreement does say McDaniel may be able to possess firearms as a result of his employment as West Virginia’s DNR director.
McDaniel received $74,999.65 pay last year, according to West Virginia records.
Some first-year Democrats earlier this week called for his resignation — or for Gov. Jim Justice to dismiss him.
Brian Abraham, general counsel for Gov. Jim Justice, has consistently said McDaniels’ legal situation has not endangered his employment.
“Based on the events I would not change my recommendation to the governor. What has transpired is what he described to us originally.
“He has no charges pending against him. If they thought it was a very, very serious issue it probably wouldn’t have been the posture it’s in,” said Abraham, a former Logan County prosecutor.
Abraham made reference to details of the original police report that have been described by West Virginia media. He said McDaniel did not admit any of those details to staff at the Governor’s Office.
“He did not ever admit to any of those allegations in the criminal complaint,” Abraham said, “and now those charges have been completely dismissed.”
The arrest report notes that McDaniel’s ex-wife made a statement to police with a bruise on her left eye and a laceration under her upper lip. Police observed red marks on her neck.
“It is to be noted, the victim was shaken up, crying and appeared terrified,” the police report stated.
McDaniel’s ex-wife was at a home she has been preparing to be sold when McDaniel arrived after drinking at local bars, the report alleges. The report indicates a verbal altercation was prompted by accusations that McDaniel had been cheating.
“The victim stated the verbal altercation escalated when the defendant became physical with her,” the arrest record states.
“The victim stated the incident was a blur, but the defendant had the victim on the bed, was on top of her with his knee pressing down on her left forearm. The victim stated her hair was in her face when the defendant placed one hand on her mouth and nose, causing her to have some trouble breathing.”
The report continues, “It is to be noted the victim never lost consciousness.”
She felt like her life was in danger, the report alleges.
“The victim stated the defendant picked up a lamp and was standing next to the bed, and was shaking the lamp,” the report stated. “The victim believed the defendant was going to kill her.”
The report described a separate initial statement from McDaniel, saying he provided conflicting accounts about whether he had been drinking. McDaniel told police he had asked his ex-wife for a ride but she refused. So he took an Uber to her home.
“The defendant stated he never became physical with her, but she began throwing things around the house,” the report stated. “The defendant stated that he put his hand over her mouth to prevent her from screaming. The defendant once again denied that a physical altercation occurred.”
Furthermore, “a small cut was observed on the top of the defendant’s left hand. When asked where the cut came from, the defendant stated he was unsure.”