State v. Wilkerson

Decision Date21 February 2013
Docket NumberNo. 11–1123.,11–1123.
Citation230 W.Va. 366,738 S.E.2d 32
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. James WILKERSON, Defendant Below, Petitioner.
CourtWest Virginia Supreme Court

OPINION TEXT STARTS HERE

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. Syl. pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).” Syl. Pt. 1, State v. Shingleton, 222 W.Va. 647, 671 S.E.2d 478 (2008).

2. ‘A trial court's refusal to give a requested instruction is reversible 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.’ Syllabus point 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).” Syl. Pt. 3, State v. Blankenship, 208 W.Va. 612, 542 S.E.2d 433 (2000).

3. “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. 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).

4. “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).

5. “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).

6. Battery as defined by West Virginia Code § 61–2–9(c) (2010) is not a lesser included offense of robbery in the first degree.

7. Misdemeanor assault as defined by West Virginia Code § 61–2–9(b) (2010) is not a lesser included offense of robbery in the first degree.

Peter P. Kurelac, III, Esq., Kurelac Law Offices, PLLC, Moundsville, West Virginia, Attorney for Petitioner.

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

LOUGHRY, Justice:

The petitioner and defendant below, James Wilkerson (hereinafter petitioner), appeals the July 6, 2011, order of the Circuit Court of Ohio County sentencing him to a total of eighty years in the West Virginia Penitentiary for his conviction of two counts of robbery in the first degree. 1 The petitioner was also sentenced to a term of not less than two nor more than ten years for his conviction of assault during the commission of a felony and sentenced to a term of not less than one nor more than five years for his conviction of conspiracy to commit the felony offense of robbery in the first degree. These latter two sentences were ordered to be served concurrent to each other and concurrent to the eighty-year sentence. In this appeal, the petitioner contends that the circuit court committed reversible error by refusing to give the jury an instruction for misdemeanor assault and/or an instruction for battery as lesser included offense(s) to the charge of robbery in the first degree. Upon consideration of the parties' briefs and oral arguments and the submitted record, the final order of the circuit court is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioner's convictions arise out of events that occurred on the evening of November 14, 2008, at a public playground in Wheeling, West Virginia. At the petitioner's trial, conflicting testimony was given regarding what actually occurred on that night. According to the petitioner, he and his codefendant, Brandon Myers (hereinafter “codefendant”),2 went to the parking lot of a beauty salon located across the street from a public playground for the purpose of skateboarding. While the petitioner and codefendant were skateboarding with a couple of other individuals, the two victims, Stephen Surgent and David Wood (hereinafter referred to individually as “Stephen” and “David” or jointly as “the victims”), were walking down the street. The victims were walking toward David's house located nearby after going to a convenience store. The victims testified that as they came down the street, they observed a group of people in the parking lot of the salon. The people were rowdy and appeared to be intoxicated so they crossed the street to avoid them and began walking through the playground.

According to the petitioner, the codefendant saw the victims and asked the petitioner to follow him to the playground. The petitioner testified that the codefendant did not give him a reason for going to the playground. According to the victims, as they entered the playground, the petitioner and codefendant confronted them. The codefendant asked Stephen, “Where's the weed at?” Both victims replied that they did not have any weed. The codefendant testified at the petitioner's trial that he believed that one of his friends had “fronted” Stephen marijuana and Stephen had never paid for it. After the victims indicated that they did not have any weed, Stephen testified that the codefendant then asked, “Where's the money?” He replied that they did not have any money. The codefendant testified that he became angry after the victims said that they did not have any weed and that he punched Stephen and then hit him several more times. Stephen testified that the petitioner actually hit David first and then the codefendant began punching him. David testified that he was hit multiple times. The codefendant admitted that he hit David once. The codefendant further testified that he did not intend to rob either of the alleged victims, but to collect a debt that was owed. The codefendant maintained during his testimony that the petitioner did not hit either victim. 3 The State, however, presented testimony from three eyewitnesses, other than the victims, who stated that both the petitioner and codefendant attacked and hit the victims.

Stephen testified that he gave his wallet to the codefendant and that the codefendant continued to kick him and demand money. David offered his cell phone to the petitioner and codefendant during the attack. Stephen said that the codefendant then asked how old he was and when he said he was thirteen, the attack stopped.4 The petitioner and codefendant left the victims on the ground, retrieved their skateboards and ran back to their residence, 5 which was approximately two blocks away. During the police investigation that followed, a cell phone and wallet containing money were found on the ground in the park where the offenses occurred.

Both victims were beaten unconscious and suffered significant injuries. Stephen testified that he woke up on the ground and David was still unconscious. He went to David's house for help and David's mother called the police. Eventually, David made it back to his house as well. The victims then went to the hospital. Stephen had a severely broken nose that required plastic/reconstructive surgery. David suffered a concussion and required stitches in his mouth making it difficult for him to eat for a period of time. Both victims testified that they continue to be affected emotionally by the attack.

On January 12, 2009, the petitioner was indicted on two counts of robbery in the first degree,6 two counts of assault during the commission of a felony and one count of conspiracy to commit first degree robbery. The codefendant was indicted on these same charges. The petitioner's trial began on April 18, 2011, and ended on April 19, 2011. As noted above, the jury convicted him of two counts of first degree robbery, one count of assault during the commission of a felony, and one count of conspiracy to commit first degree robbery. The petitioner was acquitted of one count of assault during the commission of a felony. Following his sentencing, the petitioner filed this appeal.

II. STANDARD OF REVIEW

‘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. Syl. pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).” Syl. Pt. 1, State v. Shingleton, 222 W.Va. 647, 671 S.E.2d 478 (2008). This Court has also held:

“A trial court's refusal to give a requested instruction is reversible 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.” Syllabus point 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

Syl. Pt. 3, State v. Blankenship, 208 W.Va. 612, 542 S.E.2d 433 (2000). With these standards in mind, the...

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