Submitted: April 25, 2017
from the Circuit Court of Harrison County The Honorable James
A. Matish, Judge Criminal Action No. 16-M-AP-3-3.
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.
BY THE COURT
"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).
"'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).
"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).
"'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).
"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).
"'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
"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).
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 §
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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, ...