          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                September 2016 Term


                                                             FILED
                                    No. 15-0854         November 14, 2016
                                                                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.

                               DARIUS HENNING,

                             Defendant Below, Petitioner




                   Appeal from the Circuit Court of Harrison County

                          Honorable James A. Matish, Judge

                            Criminal Action No. 15-F-114


                                     AFFIRMED



                            Submitted: October 12, 2016
                            Filed: November 14, 2016


Jason T. Gain, Esq.                                          Patrick Morrisey, Esq.
Gain Law Offices                                             Attorney General
Bridgeport, West Virginia                                    Nic Dalton, Esq.
Attorney for Petitioner                                      Assistant Attorney General
                                                             Shannon Frederick Kiser, Esq.
                                                             Assistant Attorney General
                                                             Charleston, West Virginia
                                                             Attorneys for Respondent


JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “‘This Court reviews the circuit court’s final order and ultimate

disposition under an abuse of discretion standard. We review challenges to findings of fact

under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syllabus Point

4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, State v. Noll,

223 W.Va. 6, 672 S.E.2d 142 (2008).



              2.     “[T]he question of whether a jury was properly instructed is a question

of law, and the review is de novo.” Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489

S.E.2d 257 (1996).



              3.     “‘It is the duty of a court to construe a statute according to its true intent,

and give to it such construction as will uphold the law and further justice. It is as well the

duty of a court to disregard a construction, though apparently warranted by the literal sense

of the words in a statute, when such construction would lead to injustice and absurdity.’

Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).” Syl. Pt. 2, Conseco

Fin. Servicing Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).




                                                i
              4.     “A statute should be so read and applied as to make it accord with the

spirit, purposes, and objects of the general system of law of which it is intended to form a

part[.]” Syl. Pt. 5, in part, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).



              5.     “One of the axioms of statutory construction is that a statute will be read

in context with the common law unless it clearly appears from the statute that the purpose

of the statute was to change the common law.” Syl. Pt. 2, Smith v. W.Va. St. Bd. of Educ.,

170 W.Va. 593, 295 S.E.2d 680 (1982).



              6.     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).




                                              ii
LOUGHRY, Justice:



                The petitioner and defendant below, Darius Henning, appeals an August 19,

2015, final order of the Circuit Court of Harrison County denying his motion for judgment

of acquittal and sentencing him to a term of imprisonment of six months for his conviction

of the misdemeanor offense of assault.1 The petitioner was indicted on one count of

malicious assault in May 2015.2 In this appeal, the petitioner contends that the crime of

misdemeanor assault is not a lesser included offense of malicious assault, and, therefore, his

conviction must be set aside because he was not charged with the offense for which he was

convicted.



                This Court has considered the parties’ briefs and oral arguments, the submitted

record, and pertinent authorities. For the reasons set forth below, we affirm the petitioner’s

conviction.

       1
       The court ordered the sentence to be served concurrently with the term of
imprisonment the petitioner was then serving for two other separate convictions.
       2
           The indictment provided:

                       That on or about the 19th day of December 2014, in
                Harrison County, West Virginia, DARIUS JORDAN
                HENNING committed the offense of Malicious Assault by
                unlawfully, intentionally, maliciously and feloniously stabbing,
                cutting, wounding and causing bodily injury to Skilor Perdue,
                with the intent to maim, disable, disfigure or kill Skilor Perdue,
                against the peace and dignity of the State.

                                                1

                         I. Factual and Procedural Background

              The petitioner’s one-day trial occurred on June 29, 2015. The State’s primary

witness was the victim, Skilor Perdue.3 On direct examination, Ms. Perdue testified that late

in the evening of December 18, 2014, she was driving a car owned by her friend, Cara

Carpenter, who was riding in the front passenger seat. According to Ms. Perdue, she and Ms.

Carpenter picked up the petitioner to take him to a friend’s house. Ms. Perdue and the

petitioner had been dating but their relationship had deteriorated.



              As Ms. Perdue began to drive, she and the petitioner got into an argument. Ms.

Perdue testified that the petitioner threatened to slash the tires on the car if she did not give

him the money she had in her bra.4 As the argument escalated, Ms. Perdue stopped the car

and told the petitioner to get out. The petitioner was in the back seat, and in order for him

to exit the two-door car, Ms. Perdue had to get out of the car first. She did so, and when the

petitioner refused to get out, she reached into the back seat in an attempt to pull him out of

the car. Ms. Perdue testified that when she removed her hand, she realized that she had been

cut. Ms. Perdue stated that she did not see a knife until after she was injured. At that point,

       3
       The State’s other witnesses included Kristy Davis, the records custodian at United
Hospital Center, who presented Ms. Perdue’s medical records related to the laceration on her
hand; Cara Carpenter, a friend of Ms. Perdue, who was with her when she was injured; and
Tasha Cox, the investigating police officer. The petitioner did not testify and did not present
any witnesses in his defense.
       4
        Ms. Perdue stated that because she and the petitioner had been dating, he knew she
kept her money in her bra.

                                               2

the petitioner got out of the car, and she observed that he was holding a knife with a four-

inch blade. On cross-examination, however, Ms. Perdue acknowledged she testified at the

preliminary hearing that she was cut when she tried to grab the knife. On redirect, Ms.

Perdue stated that she was afraid of the petitioner when she testified at the preliminary

hearing and maintained she did not see the knife until after she was cut.5



              Ms. Perdue further testified that after she was injured, she and Ms. Carpenter

left the petitioner on the side of the road and went to the hospital. At the hospital, Ms.

Perdue told medical personnel that she “cut [herself] with a knife while cleaning up.” The

laceration was closed with ten stitches. Ms. Perdue said she reported the incident to the

police two days later.



              Following the close of the evidence, the trial court instructed the jury that it

could return one of five verdicts under the indictment: (1) guilty of malicious assault; (2)

guilty of unlawful assault; (3) guilty of battery; (4) guilty of assault; and (5) not guilty.

Consistent with the statutory definitions of the offenses, which are set forth in West Virginia




       5
        Ms. Carpenter testified that she was standing outside of the car when Ms. Perdue was
cut, and she did not remember the conversation between Ms. Perdue and the petitioner that
evening because she was intoxicated.

                                              3

Code § 61-2-9 (2014),6 the jury was instructed on the elements of each crime.7 The jury

       6
       The offenses of malicious assault and unlawful assault are set forth in West Virginia
Code § 61-2-9(a) as follows:

                      (a) If any person maliciously shoot, stab, cut or wound
              any person, or by any means cause him or her bodily injury with
              intent to maim, disfigure, disable or kill, he or she shall, except
              where it is otherwise provided, be guilty of a felony and, upon
              conviction, shall be punished by confinement in a state
              correctional facility not less than two nor more than ten years.
              If such act be done unlawfully, but not maliciously, with the
              intent aforesaid, the offender is guilty of a felony and, upon
              conviction, shall either be in a state correctional facility not less
              than one nor more than five years, or be confined in jail not
              exceeding twelve months and fined not exceeding $500.

The offenses of assault and battery are set forth West Virginia Code § 61-2-9(b) and (c),
respectively:

                     (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.
       7
       As set forth in note 6 and discussed more fully infra, West Virginia Code § 61-2-9(b)
provides two methods of committing an assault. The State did not offer an instruction on the

                                               4

returned a verdict finding the petitioner guilty of assault, thereby acquitting him of malicious

assault, unlawful assault, and battery. Subsequently, the petitioner filed a motion for

judgment of acquittal contending that assault is not a lesser included offense of malicious

assault and, therefore, his conviction must be set aside.8 The circuit court denied the motion

and sentenced the petitioner to six months in the regional jail. This appeal followed.



                                   II. Standard of Review

               Generally, “‘[t]his Court reviews the circuit court’s final order and ultimate

disposition under an abuse of discretion standard. We review challenges to findings of fact

under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syllabus Point

4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, State v. Noll,

223 W.Va. 6, 672 S.E.2d 142 (2008). In this case, we must determine whether the jury was

properly instructed. We have explained that “the question of whether a jury was properly

instructed is a question of law, and the review is de novo.” Syl. Pt. 1, in part, State v. Hinkle,

200 W.Va. 280, 489 S.E.2d 257 (1996). With these standards in mind, we consider the

parties’ arguments.



attempt method of committing assault whereby a person “unlawfully attempts to use physical
force capable of causing pain or injury to the person of another.” W.Va. Code § 61-2-9(b).
However, the trial court read the statute in its entirety during the general jury charge thereby
relating both methods of committing an assault to the jury.
       8
        The petitioner also objected to the assault instruction when it was tendered by the
State at trial.

                                                5

                                       III. Discussion

              In syllabus point one of State v. Corra, 223 W.Va 573, 678 S.E.2d 306 (2009),

this Court observed:

                      No principle of procedural due process is more clearly
              established than that notice of the specific charge, and a chance
              to be heard in a trial of the issues raised by that charge, if
              desired, are among the constitutional rights of every accused in
              a criminal proceeding in all courts, state or federal.

Consequently, “[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.” Id. at 575-76, 678 S.E.2d

at 308-09, syl. pt. 7. Rule 31(c) of the West Virginia Rules of Criminal Procedure provides,

however, that 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.” In other words, 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.



              Recently, in State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013), we

explained that, historically, this Court has applied “the strict elements test” to determine

whether a lesser included offense instruction is warranted in a particular case. Id. at 371-72,

738 S.E.2d at 36-37. As first enunciated in syllabus point one of State v. Louk, 169 W.Va.


                                              6

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):

                          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.

Applying the strict elements test in Wilkerson, we determined that neither battery nor assault

is a lesser included offense of robbery. 230 W.Va. at 367, 738 S.E.2d at 33, syl. pts. 6 and

7.



                 Relying upon Wilkerson, the petitioner contends that the circuit court erred by

instructing the jury on the offense of assault.9 The record shows that the jury was instructed

as follows with regard to the offense of assault:

                         Before the Defendant, Darius Jordan Henning, can be
                 convicted of Assault, the State of West Virginia must prove to
                 the satisfaction of the jury beyond a reasonable doubt that:
                 1. The defendant, Darius Jordan Henning,
                 2. in Harrison County, West Virginia,
                 3. on or about the 19th day of December, 2014,
                 4. did unlawfully commit an act,
                 5. that placed Skilor Perdue
                 6. in reasonable apprehension of immediately suffering physical
                 pain or injury.10

       9
           The petitioner did not challenge the jury instructions on unlawful assault and battery.
       10
        As previously noted, the jury was instructed on the attempt method of committing
an assault during the general jury charge. See note 7, supra.

                                                 7

(Footnote added). As for the offense of malicious assault, the jury was instructed:

                       Before the defendant, Darius Henning, can be convicted
               of Malicious Assault, the State of West Virginia must proved to
               the satisfaction of the jury beyond a reasonable doubt that:
               1. The defendant, Darius Jordan Henning,
               2. in Harrison County, West Virginia,
               3. on or about the 19th day of December, 2014,
               4. did unlawfully, feloniously, intentionally and maliciously
               stab, cut or wound
               5. Skilor Perdue,
               6. with the intent to maim, disfigure, disable or kill Skilor
               Perdue.

The petitioner argues that the absence of the “reasonable apprehension” element from the

statutory definition of malicious assault, which is reflected in the jury instructions, establishes

that assault is not a lesser included offense. To support his argument, the petitioner relies

upon Wilkerson, wherein we stated:

                       As it is possible to commit robbery in the first degree
               without force, it is also possible to commit robbery in the first
               degree without placing a person in fear of injury. For example,
               in the instance where the victim’s back is turned and force is
               used against him or her unknowingly, robbery in the first degree
               is accomplished without the victim perceiving the threat of
               force.

Id. at 372, 738 S.E.2d at 38. The petitioner asserts that, like robbery, malicious assault can

be committed without placing a person in reasonable apprehension of immediately suffering

physical pain or injury. Therefore, because assault requires proof of an element not required

to establish the greater offense of malicious assault, i.e., “reasonable apprehension,” the

petitioner maintains that assault is not a lesser included offense.


                                                8

              While acknowledging that the elements of the crimes of malicious assault and

misdemeanor assault differ, the State argues that the circuit court properly instructed the jury

because this Court has long held that assault and battery are lesser included offenses of

malicious assault. Indeed, prior to the 1978 codification of the offenses of assault and

battery, this Court held: “A conviction for assault and battery will be sustained under an

indictment for violating the provisions of Code 61-2-9 [defining malicious assault and

unlawful assault], because of the provisions of Code, 62-3-14.” Syl. Pt. 1, State v. Craft, 131

W.Va. 195, 47 S.E.2d 681 (1948).11 West Virginia Code § 62-3-14 (2014), which was

enacted in 1923 and has never been amended, provides:

                      If a person indicted for a felony be by the jury acquitted
              of part and convicted of part of the offense charged, he shall be
              sentenced by the court for such part as he is so convicted of, if
              the same be substantially charged in the indictment, whether it
              be felony or misdemeanor.

Six years after Craft was decided, this Court again held:

                     Notwithstanding that the crime of assault and battery is
              not expressly included in the provisions of Code, 61-2-9,
              providing for the crimes of malicious [assault] and unlawful
              [assault], the penalties therefor, and that such crimes shall
              constitute felonies, a conviction for assault and battery, under
              the provisions of Code, 62-3-14, may be had in a prosecution for
              the crime of malicious or unlawful [assault] provided for in
              Code, 61-2-9.



       11
        When Craft was decided, West Virginia Code 61-2-9 only defined the offenses of
malicious assault and unlawful assault. The statute was amended in 1978 to add the common
law offenses of assault and battery.

                                               9

Syl. Pt. 3, State v. King, 140 W.Va. 362, 84 S.E.2d 313 (1954).



                 The State contends that when the legislature codified the offenses of assault

and battery and placed them within the framework of West Virginia Code § 61-2-9, it did not

alter the common law rule. Rather, the State maintains that the placement of the statutory

offenses of assault and battery within West Virginia Code § 61-2-9 evidences legislative

intent to set forth differing degrees of punishment depending upon the severity of the form

of assault committed. Accordingly, the State reasons that misdemeanor assault is a lesser

included offense of malicious assault.



                 West Virginia Code § 61-2-9 is structured to define the various forms of assault

and assign punishment 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.12 With

respect to the crime of assault, which is classified as a misdemeanor, the statute provides that

a person can commit the offense in two ways: (1) “attempt[ing] to use physical force capable

of causing physical pain or injury” or (2) “unlawfully commit[ting] an act that places another

in reasonable apprehension of immediately suffering physical pain or injury.” W.Va. Code

§ 61-2-9(b). When the strict elements test is applied to the various forms of assault set forth


       12
            See note 6, supra.

                                                10

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.

The attempt method of committing an assault is unquestionably a lesser included offense

pursuant to Rule 31(c) of the West Virginia Rules of Criminal Procedure.13



              Pursuant to our rules of statutory construction, we cannot read a statute in such

a manner so as to create an absurdity. Rather,

                       “[i]t is the duty of a court to construe a statute according
              to its true intent, and give to it such construction as will uphold
              the law and further justice. It is as well the duty of a court to
              disregard a construction, though apparently warranted by the
              literal sense of the words in a statute, when such construction
              would lead to injustice and absurdity.” Syllabus Point 2, Click
              v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).

Syl. Pt. 2, Conseco Fin. Servicing Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).

See also Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938) (“Where

a particular construction of a statute would result in an absurdity, some other reasonable

construction, which will not produce such absurdity, will be made.”). Moreover, “[a] statute

should be so read and applied as to make it accord with the spirit, purposes, and objects of



       13
         As the jury was instructed, a conviction for unlawful assault requires evidence that
a person “did unlawfully, feloniously and intentionally, but not maliciously, stab, cut or
wound” the person of another. See W.Va. Code § 61-2-9(a). A battery is proven by evidence
that a person “did unlawfully and intentionally cause physical pain or injury” to the person
of another. See W.Va. Code § 61-2-9(c). The petitioner does not dispute that unlawful
assault and battery are lesser included offenses of malicious assault.

                                               11

the general system of law of which it is intended to form a part[.]” Syl. Pt. 5, in part, State

v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).



               Our prior cases, like Wilkerson, have concerned the propriety of a lesser

included offense instruction for distinct crimes defined in separate statutes. In this rare and

unique circumstance, we are confronted with essentially one offense that is assigned differing

degrees of punishment depending on the extent of its completion. As West Virginia Code

§ 61-2-9 is written, it is clear that the legislature intended the lesser degrees of assault to be

lesser included offenses. Consequently, it would be absurd to construe West Virginia Code

§ 61-2-9 in such a fashion as to conclude that a misdemeanor assault–when committed by

placing a person in reasonable apprehension of immediately suffering physical injury–is not

a lesser included offense of malicious assault.



               Critically, 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,


                                               12

416 S.E.2d 253 (1992).14 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.



                 Other jurisdictions that have been confronted with the situation presented by

the case at bar have chosen to expand the definition of lesser included offense. Recognizing

that there are instances where application of the statutory elements test precludes an

instruction on a lesser-related offense because that lesser offense contains an element not

required for the greater offense, the Supreme Court of Tennessee adopted a modified version

of the Model Penal Code’s15 approach to defining a lesser included offense in State v. Burns,

6 S.W.3d 453 (Tenn. 1999). The approach adopted in Burns for defining a lesser included

offense “modifies the statutory elements test by creating two exceptions to the requirement

that all the statutory elements of a lesser included offense must be included within the

statutory elements of the offense charged.” Id. at 467. Under this approach, “the lesser­

       14
         See, e.g., State ex rel. Games-Neely v. Silver, 226 W.Va. 11, 16, 697 S.E.2d 47, 52
(2010) (recognizing that whether multiple punishments for same offense run afoul of double
jeopardy clause is controlled by legislative intent and concluding first degree arson set forth
in W.Va. Code § 61-3-1(a) (2005) and arson resulting in bodily injury defined in W.Va. Code
§ 61-3-7(b) were “expressly designed to mete out two distinct punishments for the same
underlying conduct.”).
       15
            See Model Penal Code § 1.07 (Am. Law Inst. 1985).

                                               13

included offense may contain a statutory element or elements establishing: (1) a different

mental state indicating a lesser kind of culpability, and/or (2) a less serious risk of harm to

the same person, property or public interest.”16 Id.; see also People v. Welch, 268 N.E.2d

242, 245 (Ill. App. Ct. 1971) (recognizing under state statute that included-offense is

established by proof of the same or less than all the facts or a less culpable mental state (or

both), which is required to establish the commission of the offense charged); State v. Clark,

486 A.2d 935, 938 (N.J. Super. Ct. App. Div. 1985) (observing “an offense may be a lesser

include offense even though the greater offense could also be proved without it” based on

state statute).17



                Upon review, we find it is unnecessary to adopt an expanded definition of a

lesser included offense because this Court long ago determined under the common law that

a misdemeanor assault conviction is sustainable under an indictment for malicious assault.

“One of the axioms of statutory construction is that a statute will be read in context with the

common law unless it clearly appears from the statute that the purpose of the statute was to

change the common law.” Syl. Pt. 2, Smith v. W.Va. St. Bd. of Educ., 170 W.Va. 593, 295

        16
          This approach also “includes the inchoate offenses of facilitation, attempt, and
solicitation as lesser-included offenses where the evidence in the case would support a
conviction for those offenses.” Burns, 6 S.W.3d at 467.
        17
         Pursuant to statutory enactment, several other states utilize the expanded definition
of lesser included offense. See, e.g., Ala. Code § 13A-1-9 (LexisNexis 2015); Ark. Code
Ann. § 5-1-110(b) (2013); Colo. Rev. Stat. Ann. 18-1-408 (2016); Del. Code Ann. tit. 11, §
206(b) (2015); Ga. Code Ann.§ 16-1-6 (2011); Haw. Rev. Stat. § 701-109(4) (1993).

                                              14

S.E.2d 680 (1982). There is no indication in West Virginia Code § 61-2-9 of legislative

intent to alter the common law rule set forth in syllabus point one of Craft18 and syllabus

point three of King.19 To the contrary, by placing the offenses of assault and battery within

the framework of West Virginia Code § 61-2-9, it is clear that the legislature intended to

import the common law pertaining to the offenses of assault and battery into the statute.

Accordingly, we now clarify and hold that the crime of assault as defined by West Virginia

Code § 61-2-9(b) is a lesser included offense of malicious assault as set forth in West

Virginia Code § 61-2-9(a).



                 Having found that misdemeanor assault is a lesser included offense of

malicious assault, we must now determine whether the evidence submitted at trial supported

an instruction on assault. We have held that when a crime is found to be a lesser included

offense of the charged crime, a second inquiry, which is factual in nature, is required to

determine “whether there is evidence which would tend to prove such lesser included

offense.” Syl. Pt. 1, in part, of State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985). In this

case, the record shows that while Ms. Perdue testified she did not know the petitioner had

a knife until after she was cut, she also testified that the petitioner threatened to “slash” her

tires. Moreover, she acknowledged on cross-examination that she had previously stated she


       18
            131 W.Va. at 195, 47 S.E.2d at 682.

       19
            140 W.Va. at 363, 84 S.E.2d at 314.


                                               15

was cut when she tried to grab the knife from the petitioner. Given this evidence, we find

that a jury instruction on the lesser included offense of assault was warranted. Based on the

testimony, a reasonable jury could conclude that Ms. Perdue was not truthful in her direct

testimony and that she did in fact see the knife and attempted to grab it because she was “in

reasonable apprehension of immediately suffering pain or physical injury.” W.Va. Code §

61-2-9(b).



                                      IV. Conclusion

              Accordingly, for the reasons set forth above, the final order of the Circuit Court

of Harrison County entered on August 19, 2015, is affirmed.

                                                                                     Affirmed.




                                              16

