Diversion Agreement For Breaking And Entering Requires Plea For Domestic Battery

A pretrial diversion agreement for felony breaking and entering was entered into Greenbrier County Circuit Court on Monday, November 22. The agreement comes with several conditions, such as a guilty plea to a misdemeanor domestic battery case.

Shortly after Nathan Kirk’s arrest on April 1, 2019, the Greenbrier County Sheriff’s Department issued a press release on the incident.

“On Monday, … three individuals were taken into custody by members of the Greenbrier County Sheriff’s Office, West Virginia Division of Natural Resources, West Virginia State Police and the Rainelle Police Department in connection with a rash of break ins occurring in the western end of Greenbrier County over the past six weeks,” posted the department on April 2, 2019. “Matthew Riffle, age 28, and Holly Riffle, age 34, of Rupert and Nathan Kirk, age 23, of Rainelle were arrested and incarcerated in the Southern Regional Jail. Additional charges will be forthcoming, as well as additional arrests, in connection with the investigation of these crimes.”

In February 2020, Nathan Kirk was indicted on one count of felony breaking and entering and misdemeanor petite larceny.

During the Monday, November 22, plea hearing under Greenbrier County Circuit Court Judge Jennifer Dent, Greenbrier County Prosecuting Attorney Patrick Via explained that the case emerged on March 18, 2019, when “Mr. Nathan R. Kirk, together with other individuals named in the indictment, did break and enter into a business in Greenbrier County, commonly known as Allegheny Wood Products,” explained Via. “It’s in the Smoot area. … That breaking and entering did take place with the intent to commit a larceny within those premises and a larceny was in fact committed [by taking] United States currency.”

Kirk agreed this description was “substantially” correct and declined to give the story in his own words. Via later noted the plea deal also required Kirk pay $940, his portion of the restitution.

“I don’t know if any of the other defendants have paid anything on it yet or not. I’m not sure how much he ultimately will have to pay under the Joint and Several Liability Act, but we do consider that to be a specific term and condition,” Via noted.

During the Monday hearing, Via also noted that the prosecution has “never had any successful … communications with the victim. … Frankly, from the beginning, I don’t recall any response from them. I believe that this is now [at least] three of the four defendants [whose cases] have been resolved. What we’ve done is to account for the restitution and to account for some accountability from each of the defendants. I believe it’s a fair result. I cannot speak to specific victim communications in the matter.”

In contrast to the felony indictment, currently estimated to be $940 in restitution, the plea deal also required Kirk to plead to a misdemeanor domestic battery case.

“It also indicates that you will enter a plea of guilty to a misdemeanor offense of domestic battery, … which is another matter … in [Greenbrier County] Magistrate Court,” Dent explained. “The state is going to recommend a sentence of 60 days and it be suspended and you be placed on probation to run concurrently with this particular case, but those matters will be taken up separately in the Magistrate Court.”

According to the criminal complaint in the domestic battery charge, on October 23, 2020, an officer “was dispatched to … Rainelle … for a disturbance call. Upon arrival, this officer was met by the victim. … The victim stated [Kirk] had showed up and started cussing and screaming at [them]. The victim stated, the defendant then grabbed [their] jaw with one of his hands and grabbed [their] hair with the other hand. The victim stated the defendant then squeezed [their] jaw, causing pain, and was pulling [their] hair behind [them], causing [them] to bend backwards. [Kirk] was then nose to nose with [them], cussing and yelling. [Kirk] then let go of her jaw and hair and punched [them] in the upper thigh part of [their] right leg. The victim also stated, [they have] an active domestic violence petition (DVP) against the defendant which is valid until November 30, 2020. This officer was able to obtain a copy of said DVP [and it is] valid until November 30, 2020. This officer attempted to make contact with the defendant at another location. The defendant ran out the back door.”

The plea deal recommends a pretrial diversion agreement, which would allow Kirk to seek drug treatment before moving to sentencing. Defense Attorney Martha Fleshman confirmed Kirk was enrolled in a rehabilitation program and was at work during the hearing, the main reason for him appearing over the phone rather than through a video call. Dent asked Kirk what the diversion and the plea agreement would do.

“I’m entering a plea of guilty to the [felony] breaking and entering,” Kirk said. “In my own words, I would say the diversion program is being in rehab, finishing rehab, doing the right things in life, paying back my part of the restitution, and a chance to withdraw my entered [guilty] plea. [Then] the case would be held with prejudice and they would dismiss it.”

Dent asked several follow up questions.

“Do you understand that not only would you be completing your rehabilitation program, but in the next year during this diversion, you can’t violate any laws of this state, the United States, or any political subdivision [of it]? Do you understand that you’ll be subjected to random drug and alcohol screenings and that you’re not to possess any drugs or alcohol or medication unless it’s prescribed to you by a lawful physician?”

Kirk answered yes to each question.

“Now, if you successfully complete the diversion program, then you’re correct, you would be able to withdraw your plea and the case would be dismissed,” Dent continued. “Tell me what’s going to happen if you do not successfully complete the diversion program.”

“Then I’ll go to sentencing on the felony offense of breaking and entering for one to 10 [potential years of incarceration],” Kirk answered.

After the plea, Via moved to dismiss count two, petite larceny, and Dent approved the dismissal.

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