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State v. Bland

Supreme Court of West Virginia

June 14, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
ZACHARY ELIJAH BLAND, Defendant Below, Petitioner

          Submitted: April 25, 2017

         Appeal from the Circuit Court of Harrison County The Honorable James A. Matish, Judge Criminal Action No. 16-M-AP-3-3.

          Lorena E. Litten, Esq. Assistant Public Defender WV Public Defender Corporation Fifteenth Judicial Circuit Clarksburg, West Virginia Counsel for the Petitioner.

          Patrick Morrisey, Esq. Attorney General Benjamin F. Yancey, III, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent.

         SYLLABUS BY THE COURT

         1. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syllabus Point 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

         2. "'Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution.' Syl. Pt. 12, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)." Syllabus Point 3, State v. Bradford, 199 W.Va. 338, 484 S.E.2d 221 (1997).

         3. "When a defendant is charged with a crime in an indictment, but the State convicts the defendant of a charge not included in the indictment, then per se error has occurred, and the conviction cannot stand and must be reversed." Syllabus Point 7, State v. Corra, 223 W.Va. 573, 678 S.E.2d 306 (2009).

         4. "'The question of whether a [party] is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).' Syl. Pt. 1, State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985)." Syllabus Point 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

         5. "The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense." Syl. Pt. 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on other grounds by State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994). Syllabus Point 4, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

         6. "'Before a lesser offense can be said to contribute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense. If an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense.' Syl. Pt. 5, State v. Vance, 168 W.Va. 666, 285 S.E.2d 437 (1981)." Syllabus Point 5, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013).

          7. "The crime of assault as defined by West Virginia Code § 61-2-9(b) (2014) is a lesser included offense of malicious assault as set forth in West Virginia Code § 61-2-9(a)." Syllabus Point 6, State v. Henning, 238 W.Va. 193, 793 S.E.2d 843 (2016).

         8. The crime of domestic assault as defined by West Virginia Code § 61-2-28(b) (2014) is a lesser included offense of domestic battery as set forth in West Virginia Code § 61-2-28(a).

          OPINION

          WALKER, JUSTICE.

         Petitioner Zachary Elijah Bland, defendant below ("Petitioner"), appeals the May 18, 2016, order of the Circuit Court of Harrison County affirming his magistrate court conviction of the offense of domestic assault. Petitioner asserts that the magistrate court erred by instructing the jury on the offense of domestic assault when he was charged solely with domestic battery. Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm the circuit court's order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner's trial in magistrate court occurred on January 13, 2016. The primary witnesses at trial were Petitioner's wife, Mrs. Bland, Petitioner's stepson, Mr. Wanstreet, and Petitioner. Mrs. Bland testified that on the evening of February 17, 2015, she and Petitioner went to their neighbors' house to visit with friends. After having some drinks, Mrs. Bland got into an argument with Petitioner after she saw him "getting flirtatious with a girl" and, according to Petitioner, Mrs. Bland "hauled off and smacked [him] in the face. . ." Following this argument, the couple left their friends' house to go home. On the way home, Petitioner and Mrs. Bland continued to argue. Shortly after they got home, Mrs. Bland went into the bedroom to go to sleep.

          At some point that night, Petitioner went into the bedroom to retrieve a pillow, and the couple began arguing again when Petitioner took her pillow. Petitioner testified that when he went back to his chair in the living room, the argument escalated when Mrs. Bland, who had been yelling and screaming at him, followed him to his chair and began smacking him. The testimony varies about the series of events that next occurred. According to Mrs. Bland, Petitioner then picked her up by her shirt over his head, told her he had had enough of her "f'ing sh-t, ...


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