State v. Bell

• Decision Date: 24 May 2002
• Docket Number: No. 30022.,30022.
• Citation: 211 W.Va. 308,565 S.E.2d 430
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. David Lee BELL, Jr., Defendant Below, Appellant.

565 S.E.2d 430

211 W.Va. 308

STATE of West Virginia, Plaintiff Below, Appellee, v. David Lee BELL, Jr., Defendant Below, Appellant.

No. 30022.

Supreme Court of Appeals of West Virginia.

Submitted April 2, 2002.

Decided May 24, 2002.

Stephen M. Kenney, Special Assistant Prosecuting Attorney, Charleston, for the Appellee.

David A. Camilletti, Shepherdstown, for the Appellant.

ALBRIGHT, Justice.

This is an appeal by Mr. David L. Bell, Jr., (hereinafter "Appellant") from a final order of the Circuit Court of Jefferson County, pursuant to a jury verdict, finding the Appellant guilty of the felony of wanton endangerment. The Appellant contends that the lower court erred in failing to instruct the jury on brandishing as a lesser included offense and in failing to instruct the jury regarding the right of a landowner to prohibit firearms on his property. Having thoroughly reviewed the record and the arguments of counsel, we reverse the Appellant's conviction and remand for a new trial on a single count of wanton endangerment.

I. Facts and Procedural History

On November 25, 1998, Mr. Clyde Eggleton and his two sons, ages twenty-two and eleven,¹ were hunting on or near the "Bell Farm," land owned by Mr. Lyle Cam Tabb, Jr., and managed by the Appellant. The Appellant observed the hunters and followed them to their vehicle, which was parked on an access road near the premises managed by the Appellant. The Appellant approached the hunters as they were placing their weapons in their vehicle and asked them whether they had permission to hunt on the "Bell Farm." Mr. Eggleton informed the Appellant that he had not been on the "Bell Farm" and had actually been hunting on the adjacent "Ware Farm." The Appellant thereafter informed the hunters that they had been on the "Bell Farm" and informed them that he would shoot them if they came back to the property under his management. According to the testimony of Mr. Eggleton, the Appellant pointed a gun at him and his sons. Mr. Eggleton further testified that when he reached into his pocket to retrieve his keys, the Appellant encouraged him to pull something out because he had six bullets, enough for all three of them. Mr. Eggleton testified that when he asked the Appellant if he planned to shoot the sons, the Appellant stated that he would shoot them also.

Mr. Eggleton telephoned the Appellant at the Appellant's home on the following day, and the Appellant reiterated that the hunters would be shot if they returned to the "Bell Farm." On January 10, 1999, Mr. Eggleton and the West Virginia State Police recorded a phone conversation in which the Appellant again stated that he would shoot the hunters if they returned to the property. The Appellant was arrested on April 10, 1999.

The Appellant was thereafter indicted for three counts of wanton endangerment, three counts of civil rights violations, and three counts of impeding the right to hunt. On March 20, 2000, the State filed a motion to dismiss the indictment, based upon information that the Eggletons had not obtained permission to hunt on the day in question. The State sought and obtained a new six count indictment at the April 2000 grand jury, and trial proceeded on three counts of wanton endangerment and three counts of civil rights violations. During trial on January 23, 24, and 25, 2001, the Appellant requested an instruction on brandishing as a lesser included offense and an instruction on the right of a land owner to prohibit firearms on his premises. The lower court denied such requests. The Appellant was thereafter convicted of one count of wanton endangerment and sentenced to six months and one day.

On appeal to this Court, the Appellant contends that the lower court erred in (1) refusing to provide the Appellant's offered jury instruction on brandishing as a lesser included offense;² and (2) refusing to provide the Appellant's offered jury instruction on the right of a land owner to prohibit firearms on his premises.³

II. Standard of Review

"As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion." Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). Likewise, in State v. Lease, 196 W.Va. 318, 472 S.E.2d 59 (1996), this Court explained that we review a "trial court's failure to give a requested instruction or the giving of a particular instruction under an abuse of discretion standard...." Id. at 322, 472 S.E.2d at 63; see also State v. Guthrie, 194 W.Va. 657, 671, 461 S.E.2d 163, 177 (1995). Syllabus point eleven of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), specifies:

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.

In Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), cert. denied 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999), this Court explained that where the alleged error is based upon the trial court's refusal to give an offered instruction, this Court will presume that the lower court "acted correctly... unless it appears from the record in the case ... that the instructions refused were correct and should have been given." Id. at 144, 511 S.E.2d at 769, quoting Coleman v. Sopher, 201 W.Va. 588, 602, 499 S.E.2d 592, 606 (1997) (internal quotations and citations omitted).

III. Discussion

A. Brandishing as a Lesser Included Offense in this Circumstance

The Appellant maintains that the lower court erred in refusing to provide the jury with an instruction on brandishing as a lesser included offense to wanton endangerment with a firearm. In syllabus point one of State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985), this Court explained the standard for determining whether a lesser included offense instruction should be provided, as follows:

The question of whether a defendant 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. (Citation omitted).

In State v. Stalnaker, 167 W.Va. 225, 279 S.E.2d 416 (1981), this Court noted that "a trial court must give an instruction for a lesser included offense when evidence has been produced to support such a verdict." Id. at 227, 279 S.E.2d at 417, citing State v. Cobb, 166 W.Va. 65, 272 S.E.2d 467 (1980). Further, "it is reversible error for a trial court to refuse to instruct a jury on lesser offenses charged in the indictment if there is any evidence in the record to prove such lesser offenses[.]" State v. Wayne, 162 W.Va. 41, 46, 245 S.E.2d 838, 842 (1978), overruled on other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983); see also State v. Davis, 205 W.Va. 569, 585, 519 S.E.2d 852, 868 (1999).

Likewise, in syllabus point five of State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997), this Court explained the legal analysis, 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)[,overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994)]." Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

In Wright, this Court had the opportunity to review the issue of whether an instruction on wanton endangerment should be provided as a lesser included offense to the crime of malicious assault. Adhering to the two-part inquiry formula enunciated in Jones, the Wright Court examined both legal and factual issues. In the legal analysis, the Court acknowledged that an offense is considered a lesser included offense only where it is impossible to commit the greater offense without having first committed the lesser offense. Id. at 554, 490 S.E.2d at 641. The Court also examined the elements of the two crimes and concluded that "[w]anton endangerment also carries a less severe penalty than malicious assault." Id. at 553, 490 S.E.2d at 640, citing 42 C.J.S. Indictments and Information § 218 (1991) ("An offense, in order to be a lesser included offense, must be a less serious crime in terms of its classification and degree....").

With regard to the particular facts of the crime, the Wright Court reasoned: "Given the circumstances of this case, it would have been impossible for Mr. Wright to commit malicious assault with a single gunshot without committing wanton endangerment with a firearm." 200 W.Va. at 553, 490 S.E.2d at 640. Consequently, the Court found that the lower court had erred by refusing to provide the instruction regarding the lesser included offense.

The specific issue of whether wanton endangerment could include brandishing was addressed in Hancock v. Commonwealth, 998 S.W.2d 496 (Ky.App.1998), and the court explained that "examples of conduct which constitute wanton endangerment include discharging or brandishing firearms in public, using firearms or explosives in a grossly careless manner, and obstructing public highways." Id. at 498. The Hancock court also recognized that "wanton endangerment is not limited to specific types of conduct. It `may be committed in many ways.'" Id., quoting Hardin v. Commonwealth, 573 S.W.2d 657, 660 (Ky.1978).

...