No. 11-1123 – State of West Virginia v. James Wilkerson
                                                                                FILED
                                                                               March 4, 2013

                                                                          RORY L. PERRY II, CLERK

                                                                        SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA


Benjamin, Chief Justice, concurring:


              I agree with the Majority’s disposition of this case. I write separately to

highlight an alternative basis for affirming the circuit court’s final order.



              In State v. Hudson, 157 W. Va. 939, 945, 206 S.E.2d 415, 419–20 (1974),

the defendant argued that he was improperly denied an instruction for assault and battery

during his prosecution for robbery. The Court found no merit in his argument, holding,

“Where the evidence warrants the conviction of the crime charged and there is no

independent evidence that would warrant a conviction of lesser offenses an instruction

relative to lesser offenses need not be given.” Id. at syl. pt. 3.



              As noted by the Majority, other jurisdictions and authorities have discussed

whether an instruction of battery or assault as lesser included offenses of robbery must be

given. W. R. Habeeb, Effect of Failure or Refusal of Court, in Robbery Prosecution, to

Instruct on Assault and Battery, 58 A.L.R.2d 808, 809–10 (1958), summarizes the

approaches in other jurisdictions:

              [I]t has been held that such an instruction need not be given,
              because the lesser crime is merged in the greater, where (1)
              the prosecuting witness testifies positively that the crime
              charged has been committed and there is no contradictory
              evidence on that issue; (2) the defendant asserts an alibi and

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              denies his presence at the time and place of the alleged crime;
              or (3) the defendant admits his presence at the time and place
              of the alleged crime, but denies that any criminal act was
              committed.

(Footnotes omitted). Of the three scenarios described, the third matches the facts of this

case: The petitioner admits that he was present at the time and place of the crime, but he

denies that he committed any crime.



              No independent evidence was presented in this case to support an

instruction on a lesser included offense. Any arguably lesser included offense—battery or

assault—would have merged with the robbery charge. Therefore, the circuit court was not

required to give an instruction as to lesser included offenses, regardless of this Court’s

determination that battery and assault are not lesser included offenses of robbery.




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