IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
_______________ FILED
June 14, 2017
No. 16-0592 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
ZACHARY ELIJAH BLAND,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Harrison County
The Honorable James A. Matish, Judge
Criminal Action No. 16-M-AP-3-3
AFFIRMED
____________________________________________________________
Submitted: April 25, 2017
Filed: June 14, 2017
Lorena E. Litten, Esq. Patrick Morrisey, Esq.
Assistant Public Defender Attorney General
WV Public Defender Corporation Benjamin F. Yancey, III, Esq.
Fifteenth Judicial Circuit Assistant Attorney General
Clarksburg, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for the Respondent
JUSTICE WALKER delivered the Opinion of the Court.
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
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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).
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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).
iii
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.
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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,” that she needed to “show him some
respect.” She alleged that Petitioner then threw her on the couch and hit her in the face.
At the time of this incident, Mrs. Bland’s sons (and Petitioner’s stepsons),
Mr. Wanstreet and Mark Richards, were also in the living room. Mr. Wanstreet testified
that when he saw Petitioner hit his mother, he tried to intervene by getting in between
them and shoving Petitioner back with his shoulders. Petitioner began shoving Mr.
Wanstreet back and at one point during the incident, Petitioner punched Mr. Wanstreet in
the mouth and chipped his tooth.
According to trial testimony, the violence then de-escalated for
approximately five minutes. However, after Mrs. Bland went into the kitchen, a second
incident occurred when, according to Mrs. Bland, Petitioner “picked [her] up. . . slammed
[her] against the cabinet . . . and then threw [her] on the floor.” Mrs. Bland testified that
as Mr. Wanstreet came into the kitchen to ask what was going on, Petitioner asked Mr.
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Wanstreet “if he wanted some more,” after which Petitioner “snatched him up, threw
[Mr. Wanstreet] against the sink and tried to throw him on the floor[.]” After that
incident subsided, the parties subsequently went into the living room. Mrs. Bland
testified that Petitioner then “punched the TV, . . . picked it up and busted it over his knee
and then threw it on the floor[.]” At that point, Mr. Wanstreet “picked [his mother] up
and carried [her] next door to the neighbors” and called the police.
Following this incident, Petitioner was charged with one count of domestic
battery against Mrs. Bland and one count of domestic battery against Mr. Wanstreet. At
trial, Petitioner did not dispute that he made physical contact with both Mrs. Bland and
Mr. Wanstreet. Rather, he maintained that he was attacked first and in self-defense, had
to use force to protect himself. At the close of the evidence, the State submitted proposed
jury instructions not only on domestic battery but also on domestic assault as a lesser
included offense of domestic battery. Petitioner objected to the State’s proposed jury
instruction of domestic assault asserting that he was not charged with domestic assault
and that the evidence presented by the State did not prove domestic assault. The
magistrate court instructed the jury on both domestic battery and domestic assault, as a
lesser included offense.1 Following deliberations, the jury returned a verdict finding
1
The jury was instructed on the offense of domestic assault as follows:
(continued . . .)
3
Petitioner not guilty of committing domestic battery against Mrs. Bland and Mr.
Wanstreet, and not guilty of committing domestic assault against Mrs. Bland. However,
it convicted Petitioner on the charge of domestic assault against Mr. Wanstreet. In
February 2016, Petitioner appealed his conviction to the Circuit Court of Harrison
County. The circuit court conducted a hearing in April 2016, and on May 18, 2016,
entered an order affirming Petitioner’s magistrate court conviction. This appeal
followed.
II. STANDARD OF REVIEW
In this case, we must determine whether the jury was properly instructed.
“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). Additionally, “[i]f an objection to a jury instruction is a
[B]efore the Defendant, Zachary Elijah Bland, can be
convicted of the domestic assault, the State of West Virginia
must . . . prove to the satisfaction of the jury beyond a
reasonable doubt that the Defendant, Zachary Elijah Bland, . .
. on or about the 17th day of February, 2015, did unlawfully
attempt to use force capable of causing physical pain or injury
against Tony Wanstreet and/or committed an act which
placed Tony Wanstreet a [sic] reasonable apprehension of
immediately suffering physical pain or injury, and which
Tony Wanstreet is a family or household member of the
Defendant.
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challenge to a trial court’s statement of the legal standard, this Court will exercise de
novo review.” State v. Guthrie, 194 W.Va. 657, 671, 461 S.E.2d 163, 177 (1995).
However,
“[w]hether 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).
Syl. Pt. 3, State v. Bradford, 199 W.Va. 338, 484 S.E.2d 221 (1997). With these
standards in mind, we consider the parties’ arguments.
III. DISCUSSION
Petitioner alleges that the magistrate court erred by instructing the jury on
the offense of domestic assault when he was charged solely with domestic battery. We
have held that “[w]hen 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.” Syl. Pt. 7, State v.
Corra, 223 W.Va. 573, 678 S.E.2d 306 (2009). However, “a defendant may be convicted
of a lesser included offense of the specific charge set forth in the indictment without
violating the constitutional notice requirement.” State v. Henning, 238 W.Va. 193, __,
793 S.E.2d 843, 846 (2016). Indeed, the West Virginia Rules of Criminal Procedure
provide that a “defendant may be found guilty of an offense necessarily included in the
5
offense charged or of an attempt to commit either the offense charged or an offense
necessarily included therein if the attempt is an offense.” W.Va. R. Crim. Proc. 31(c).
Petitioner argues that domestic assault is not a lesser-included offense of
domestic battery. Generally,
“[t]he 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).
Syl. Pt. 3, State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013). With respect to the
first inquiry, this Court has held:
“[t]he 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).
Id. at Syl. Pt. 4. In other words,
“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
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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).
Id. at Syl. Pt. 5.
The offenses of domestic battery and domestic assault are codified in West
Virginia Code § 61-2-28 (2014), which provides:
(a) Domestic battery. - Any person who unlawfully
and intentionally makes physical contact force capable of
causing physical pain or injury to his . . . family . . . member
or unlawfully and intentionally causes physical harm to his . .
. family . . . member, is guilty of a misdemeanor[.]
(b) Domestic assault. - Any person who unlawfully
attempts to use force capable of causing physical pain or
injury against his . . . family . . . member or unlawfully
commits an act that places his . . . family . . . member in
reasonable apprehension of immediately suffering physical
pain or injury, is guilty of a misdemeanor[.]
Pursuant to the statute, domestic battery can be committed in two ways. First, this
offense is committed when a person unlawfully and intentionally “makes physical contact
force capable of causing physical pain or injury to his . . . family . . . member.” Second,
the offense is committed when a person unlawfully and intentionally “causes physical
harm to his . . . family . . . member.” W.Va. Code § 61-2-28(a).
Likewise, domestic assault can be committed in two ways. First, the
offense is committed when a person unlawfully “attempts to use force capable of causing
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physical pain or injury against his . . . family . . . member.” Second, the offense is
committed when a person unlawfully “commits an act that places his . . . family . . .
member in reasonable apprehension of immediately suffering physical pain or injury.”
W.Va. Code § 61-2-28(b).
The first form of domestic assault essentially is an attempted domestic
battery. Pursuant to West Virginia Code § 61-2-28(a), domestic battery occurs when a
defendant “makes physical contact force capable of causing physical pain or injury to his
. . . family . . . member.” Likewise, under West Virginia Code § 61-2-28(b), domestic
assault occurs when a defendant “attempts to use force capable of causing physical pain
or injury against his . . . family . . . member.”
As set forth above, a “defendant may be found guilty of an offense
necessarily included in the offense charged or of an attempt to commit either the offense
charged or an offense necessarily included therein if the attempt is an offense.” W.Va. R.
Crim. P. 31(c) (emphasis added); Henning, 238 W.Va. at __, 793 S.E.2d at 846.
Accordingly, the first method of committing domestic assault is a lesser included offense
of domestic battery.
The second form of domestic assault occurs when a defendant places the
victim in “reasonable apprehension” of immediately suffering physical pain or injury.
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W.Va. Code § 61-2-28(b). Petitioner argues that because “reasonable apprehension” is
not an element of domestic battery, domestic assault is not a lesser included offense. We
recently addressed this same argument in State v. Henning, 238 W.Va. 193, 793 S.E.2d
843. In that case, the defendant was charged under West Virginia Code § 61-2-9 with
malicious assault but convicted of misdemeanor assault, another offense within the same
statute. Id. at __, 793 S.E.2d at 846. The defendant argued that the absence of the
“reasonable apprehension” element from malicious assault precluded misdemeanor
assault from being a lesser included offense. Id. at __, 793 S.E.2d at 847.
In Henning, we observed that:
West Virginia Code § 61-2-9 is structured to define the
various forms of assault and assign punishments therefor,
depending upon the extent the crime was completed, the
culpability of the perpetrator, and the degree of harm
perceived by the victim. The statutory penalties decrease from
malicious assault to unlawful assault to battery to assault.
Id. at__, 793 S.E.2d at 848. We also noted that “[w]hen the strict elements test is applied
to the various forms of assault set forth in the statute, only assault committed by placing
another in reasonable apprehension of suffering physical pain or injury contains an
element not required for the greater offenses.” Id.
Upon considering the common law pertaining to assault and battery and our
rules of statutory construction which require us to construe statutes to avoid an absurd
9
result, we concluded that “the legislature intended the lesser degrees of assault to be
lesser included offenses.” Id. at __, 793 S.E.2d at 849. Explaining further, we stated:
if we were to find that the offense of assault, when committed
by placing another in apprehension of pain or injury, is not a
lesser included offense of malicious assault, then an accused
could potentially be charged with both offenses for the same
act or transaction. Double jeopardy principles, however,
would preclude convictions for both offenses. In that regard,
“[a] claim that double jeopardy has been violated based on
multiple punishments [for the same offense] imposed after a
single trial is resolved by determining the legislative intent as
to punishment.” Syl. Pt. 7, State v. Gill, 187 W.Va. 136, 416
S.E.2d 253 (1992). By imposing different degrees of
punishment depending on the extent to which the assault was
completed, the legislature has made it clear that it did not
intend to impose multiple punishments for a single act
involving one victim when it codified the offenses of assault
and battery. Instead, the legislature has created a hierarchy of
lesser included offenses in West Virginia Code § 61-2-9 in
accordance with the common law.
Id. (footnoted omitted). Accordingly, we held in syllabus point 6 of Henning that “[t]he
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).” Id. at Syl.
Pt. 6.
Applying Henning to the case at bar, we conclude that like the offenses
contained in West Virginia Code § 61-2-9 (2014), the placement of the statutory offenses
of domestic assault and domestic battery within West Virginia Code § 61-2-28 evidences
legislative intent to set forth differing degrees of punishment depending upon the severity
of the form of the crime committed. But for the domestic violence application, the
10
offenses of domestic battery and domestic assault are virtually identical to the offenses of
battery and assault set forth in West Virginia Code § 61-2-9.2 In fact, West Virginia
Code § 61-2-28(f) expressly provides that “[a] person charged with a violation of this
section may not also be charged with a violation of subsection (b) [assault] or (c)
[battery], section nine of this article for the same act.”3 Accordingly, we conclude that
2
West Virginia Code § 61-2-9 (2014), provides, in pertinent part:
(b) Assault. – Any person who unlawfully attempts to
use physical force capable of causing physical pain or injury
to the person of another or unlawfully commits an act that
places another in reasonable apprehension of immediately
suffering physical pain or injury, he or she is guilty of a
misdemeanor and, upon conviction, shall be confined in jail
for not more than six months, or fined not more than $100, or
both fined and confined.
(c) Battery. – Any person who unlawfully and
intentionally makes physical contact with force capable of
causing physical pain or injury to the person of another or
unlawfully and intentionally causes physical pain or injury to
another person, he or she is guilty of a misdemeanor and,
upon conviction, shall be confined in jail for not more than
twelve months, or fined not more than $500, or both fined and
confined.
3
Furthermore, West Virginia Code § 61-2-9(d) provides:
(d) Any person convicted of a violation of subsection
(b) or (c) of this section who has, in the ten years prior to said
conviction, been convicted of a violation of either subsection
(b) or (c) of this section where the victim was a current or
former spouse, current or former sexual or intimate partner, a
person with whom the defendant has a child in common, a
person with whom the defendant cohabits or has cohabited, a
(continued . . .)
11
the crime of domestic assault as defined by West Virginia Code § 61-2-28(b) is a lesser
included offense of domestic battery as set forth in West Virginia Code § 61-2-28(a).
Having found that domestic assault is a lesser included offense of domestic
battery, we must now determine “whether there [was] evidence [at trial] which would
tend to prove [the] lesser included offense” of domestic assault. Syl. Pt. 3, Wilkerson.
First, while the jury heard evidence at trial that Petitioner struck Mr. Wanstreet, it also
heard evidence that during the altercation in the kitchen, Petitioner “threw [Mr.
Wanstreet] against the sink and tried to throw him on the floor[.]” Thus, considering this
evidence in the light most favorable to the prosecution, we conclude that the issue of
whether a domestic assault was committed by Petitioner attempting, but failing, to throw
Mr. Wanstreet on the floor was a question of fact for the jury. Furthermore, there was
evidence from which the jury could conclude that Mr. Wanstreet was, at different times,
placed in reasonable apprehension of bodily injury. Mrs. Bland testified that Petitioner
asked Mr. Wanstreet, “if he wanted more” during the altercation, and subsequently
parent or guardian, the defendant’s child or ward or a member
of the defendant’s household at the time of the offense or
convicted of a violation of section twenty-eight of this article
or has served a period of pretrial diversion for an alleged
violation of subsection (b) or (c) of this section or section
twenty-eight of this article when the victim has such present
or past relationship shall upon conviction be subject to the
penalties set forth in section twenty-eight of this article for a
second, third or subsequent criminal act of domestic violence
offense, as appropriate.
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punched and broke a television over his knee during a fit of rage. Additionally, Mr.
Wanstreet testified that during his efforts to protect his mother from Petitioner, “[he] was
in shock and [his] adrenalin was going because of what was going on around [him][.]”
Given this evidence, we conclude that the jury instruction on domestic assault was
warranted and that the jury was properly instructed on the offense of domestic assault
regarding Mr. Wanstreet.
IV. CONCLUSION
For all these reasons, we affirm the May 18, 2016 order of the Circuit Court
of Harrison County affirming Petitioner’s conviction for domestic assault.
Affirmed.
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