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State v. Joshua M.

Supreme Court of West Virginia

September 5, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Joshua M., Defendant Below, Petitioner

         (Berkeley County 15-F-49)

          MEMORANDUM DECISION

         Petitioner Joshua M., by counsel Matthew Brummond, appeals the Circuit Court of Berkeley County's April 20, 2016, order sentencing him to a determinate term of incarceration of forty years for his conviction of felony child abuse resulting in death. The State, by counsel Cheryl K. Saville, filed a response. Petitioner filed a reply and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying his request to instruct the jury on child neglect resulting in death as a lesser-included offense of child abuse resulting in death.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On April 2, 2014, petitioner was babysitting his girlfriend's two-year-old child, S.S. At approximately 2 p.m., a neighbor saw petitioner running toward his house holding the child by the torso. According to the neighbor, the child was limp. The neighbor called 911, and petitioner attempted CPR on the child with instructions from a 911 operator. Emergency personnel arrived at approximately 2:16 p.m. and transported the child to the hospital. After transporting the child to another hospital, she died on April 3, 2014. Following the child's death, law enforcement interviewed petitioner, who indicated that the child received her injuries in an accidental fall after jumping on a bed. An autopsy later determined that the child's cause of death was blunt head, neck, and trunk trauma, and the death was ruled a homicide.

         In May of 2015, petitioner was indicted on one count of felony child abuse resulting in death; one count of gross child neglect creating substantial risk of serious bodily injury; and one count of presentation of false information regarding a child's injuries. According to respondent, the State initially included the charge of gross child neglect creating substantial risk of serious bodily injury because it believed that petitioner may have delayed seeking medical treatment for the child after she sustained injuries. However, the State eventually dismissed that count for lack of evidence.

         Petitioner's jury trial commenced in February of 2016. At the close of evidence, petitioner requested that the jury be instructed on child neglect resulting in death as a lesser-included offense of child abuse resulting in death. The circuit court denied petitioner's request for an instruction on child neglect resulting in death. Thereafter, petitioner was found guilty of one count of felony child abuse resulting in death and was acquitted of the remaining charge. In April of 2016, the circuit court sentenced petitioner to a determinate term of forty years of incarceration. It is from the sentencing order that petitioner appeals.

We have held as follows:
"In reviewing the findings of fact and conclusions of law of a circuit court . . ., we apply a three-pronged standard of review. We review the decision . . . under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review." Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). On appeal, petitioner argues that the circuit court erred in denying his request to instruct the jury on child neglect resulting in death as a lesser-included offense of child abuse resulting in death. According to petitioner, one cannot engage in abuse of a child without first neglecting the child by failing to exercise a minimum degree of care to assure the minor child's physical safety or health. As such, petitioner argues that child neglect resulting in death must necessarily be a lesser-included offense of child abuse resulting in death. We do not agree.

         This Court has previously stated that "[a]s 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." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). Further, we have held that

"[a] trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense." Syl. Pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

Syl. Pt. 3, State v. Brock, 235 W.Va. 394, 774 S.E.2d 60 (2015). Here, it is clear that the circuit court did not err in denying petitioner's request for an instruction on child neglect resulting in death as a lesser-included offense of child abuse resulting in death. In discussing lesser-included offenses, we have held as follows:

"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." Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).

Syl. Pt. 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982). Based on the plain language of West Virginia Code §§ 61-8D-2a(a) and 61-8D-4a(a), it is clear that petitioner was able to commit child abuse resulting in death without first committing child neglect resulting in death because child abuse resulting in death does not require proof of neglect. West Virginia Code § ...


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