          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                   January 2013 Term

                                                                    FILED

                                                               February 21, 2013

                                      No. 11-1123
                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.


                                JAMES WILKERSON,

                               Defendant Below, Petitioner




                    Appeal from the Circuit Court of Ohio County

                        Honorable Arthur M. Recht, Judge

                            Criminal Action No. 09-F-10


                                      AFFIRMED



                               Submitted: January 15, 2013
                                Filed: February 21, 2013


Peter P. Kurelac, III, Esq.                            Patrick Morrisey, Esq.
Kurelac Law Offices, PLLC                              Attorney General
Moundsville, West Virginia                             Benjamin F. Yancey, III, Esq.
Attorney for Petitioner                                Assistant Attorney General
                                                       Charleston, West Virginia
                                                       Attorneys for Respondent

JUSTICE LOUGHRY delivered the Opinion of the Court.


CHIEF JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.

                               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


                                                i
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.




                                                ii
              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.




                                              iii

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.




       1
       The court imposed a forty-year determinate term for each count of robbery in the first
degree and ordered that the sentences be served consecutively.

                                               1

                   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


       2
           The petitioner and codefendant were tried separately. See note 3, infra.

                                                2

Steven, “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



       3
        The codefendant was tried separately in 2009. Prior to the conclusion of his trial, he
made a plea agreement with the State and pled guilty to two counts of second degree robbery.
In exchange, the State dropped the remaining charges in the indictment. Subsequently, the
codefendant was sentenced to two consecutive terms of five to eighteen years in the
penitentiary. Thus, the codefendant was already serving his prison sentence when he testified
at the petitioner’s trial.

                                               3

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.




       4
        When the events at issue occurred, Stephen and David were thirteen years old. The
petitioner was twenty and the codefendant was eighteen.
       5
           The petitioner and codefendant were roommates.

                                              4

              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



       6
        Pursuant to West Virginia Code § 61-2-12(a) (2010), as set forth infra, the penalty
for robbery in the first degree or the attempt thereof is the same.

                                               5

              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 parties’ arguments will be considered.



                                     III. DISCUSSION

              The petitioner’s sole assignment of error in this case is the trial court’s refusal

to instruct the members of the jury that they could find him guilty of misdemeanor assault

and/or battery as lesser included offense(s) of robbery in the first degree. Pursuant to

syllabus point one of State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985),

                      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).

With regard to the first inquiry, this Court has held:

                       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.




                                               6

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). In other words,

              [b]efore 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). As for the second inquiry

required by syllabus point one of Jones, this Court has held that “[w]here there is no

evidentiary dispute or insufficiency on the elements of the greater offense which are different

from the elements of the lesser included offense, then the defendant is not entitled to a lesser

included offense instruction.” Syl. Pt. 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902

(1982).



              In this case, the petitioner first contends that assault and/or battery are lesser

included offense(s) of robbery in the first degree. More specifically, the petitioner argues

that battery is a lesser included offense of first degree robbery where there is some kind of

actual force used in the alleged crime.7 The petitioner points out that the use of violence



       7
        In his brief, the petitioner focuses primarily upon the trial court’s failure to give the
jury a battery instruction. During oral argument, he asserted that an assault instruction was
warranted as well. The submitted record shows that the petitioner did present separate
battery and assault instructions to the trial court.

                                               7

against a person is one of the elements of robbery, and he contends that it is the same kind

of violence that can be used to commit a battery. Noting that there are no West Virginia

cases addressing this issue, the petitioner urges this Court to follow other jurisdictions that

have reached the conclusion that battery is a lesser included offense of robbery where there

is some kind of actual force used in the alleged crime. In particular, the petitioner relies upon

State v. Hill. 825 P.2d 1141 (Kan. Ct. App. 1991) and State v. Clardy, 847 P.2d 694 (Kan.

1993), cases in which it was determined that the evidence was sufficient to establish the

offense of battery, and therefore, a jury instruction on battery as a lesser included offense of

robbery was required. In both cases, the Kansas courts indicated that a lesser included

instruction was required8 because the factual allegations in the charging document constituted

an allegation of a lesser crime and evidence of such offenses was adduced at trial. Hill, 825

P.2d at 1142; Clardy, 847 P.2d at 696. In other words, the facts proven at trial were

considered to determine whether a lesser included instruction was proper.9



                 Upon review, we decline to adopt the approach advanced by the petitioner and

utilized by a minority of jurisdictions whereby each case is considered individually to


       8
           See note 11, infra.
       9
        The State chose not to address this issue in its brief. Acknowledging the split of
authority with regard to whether assault and/or battery are lesser included offenses of first
degree robbery, the State focused on the second inquiry under syllabus point one of Jones,
asserting that given the violent nature of the petitioner’s actions toward the victims, a lesser
included instruction on assault and/or battery was simply not warranted.

                                               8

determine whether the evidence adduced at trial supports a lesser included instruction.10 This

Court has always applied the strict elements test as set forth in syllabus point one of Louk to

determine whether a lesser included instruction is warranted. See State v. Noll, 223 W.Va.

6, 672 S.E.2d 142 (2008) (finding that daytime entering without breaking a dwelling house

under West Virginia.Code § 61-3-11(b) does not require inclusion of element not required

in greater offense of daytime burglary by breaking and entering under West Virginia Code

§ 61-3-11(a) and therefore is lesser included offense); State v. Wade, 200 W.Va. 637, 490

S.E.2d 724 (1997) (finding that second degree murder and voluntary manslaughter are not

lesser included offenses of felony-murder because each require element that is not necessary

for conviction of felony murder); State v. Bradford, 199 W.Va. 338, 484 S.E.2d 221 (1997)

(concluding that offense of accessory after the fact cannot be lesser included offense of

murder because to be accessory after the fact one must prove that accused was not present

when crime was committed which is not element of murder); State v. Hays, 185 W.Va. 664,

408 S.E.2d 614 (1991) (applying Louk test and concluding that West Virginia Code § 61-3­

39a proscribing issuing a worthless check in order to satisfy preexisting debt is not lesser

include offense of issuing worthless check to obtain property or thing of value as proscribed

by West Virginia Code § 61-3-39); State v. Horton, 170 W.Va. 395, 294 S.E.2d 248 (1982)

(stating that under Louk, unauthorized entry upon lands is not a lesser included offense of



       10
        The petitioner also cited McFarland v. State, 384 N.E.2d 1104 (Ind. Ct. App. 1979).
We also find this case unpersuasive.

                                              9

crime of breaking and entering). There is simply no basis for this Court to adopt the fact-

driven and case-specific test suggested by the petitioner to determine whether an instruction

on a lesser included offense should be given.11



               We now turn to the offenses at issue in the instant case and apply our strict

elements test to determine whether misdemeanor assault and/or battery are lesser included

offenses of robbery in the first degree. West Virginia.Code § 61-2-12(a) (2010) provides,

in pertinent part:

                       Any person who commits or attempts to commit robbery
               by: (1) Committing violence to the person, including, but not
               limited to, partial strangulation or suffocation or by striking or
               beating; or (2) uses the threat of deadly force by the presenting
               of a firearm or other deadly weapon, is guilty of robbery in the
               first degree and, upon conviction thereof, shall be imprisoned in
               a state correctional facility not less than ten years.

It has been recognized that this statute does not actually define robbery. State v. Harless,

168 W.Va. 707, 710, 285 S.E.2d 461, 464 (1981); State ex rel. Vandal v. Adams, 145 W.Va.

566, 569, 115 S.E.2d 489, 490 (1960). Rather, “the elements of robbery, unaffected by the

statute, are derived from the common law[.]” State v. England, 180 W.Va. 342, 347, 376




       11
        We note that Kansas has now adopted the strict elements test. See State v.
McKissack, 156 P.3d 1249, 1254 (Kan. 2007) (explaining that pursuant to a 1998
amendment, K.S.A.2006 Supp. 21-3107(1),(2) now requires use of strict elements test to
determine whether defendant may be convicted of either crime charged or lesser included
offense).

                                              10

S.E.2d 548, 553 (1988). Those elements were summarized in syllabus point one of Harless,

which states:

                       At common law, the definition of robbery was (1) the
                unlawful taking and carrying away, (2) of money or goods, (3)
                from the person of another or in his presence, (4) by force or
                putting him in fear, (5) with intent to steal the money or goods.

168 W.Va. 707, 285 S.E.2d 462.



                With respect to the offense of misdemeanor assault, West Virginia Code § 61­

2-9(b) (2010) provides:

                       Assault.– If any person unlawfully attempts to commit a
                violent injury to the person of another or unlawfully commits an
                act which places another in reasonable apprehension of
                immediately receiving a violent injury, he shall be guilty of a
                misdemeanor and, upon conviction, shall be confined in jail for
                not more than six months, or fined not more than one hundred
                dollars, or both such fine and imprisonment.

Battery is defined in West Virginia Code § 61-2-9(c) as follows:

                       Battery.–If any person unlawfully and intentionally
                makes physical contact of an insulting or provoking nature with
                the person of another or unlawfully and intentionally causes
                physical harm to another person, he shall be guilty of a
                misdemeanor and, upon conviction, shall be confined in jail for
                not more than twelve months, or fined not more than five
                hundred dollars, or both such fine and imprisonment.



                Based on the above, in order for a person to be convicted of battery, there must

be physical contact with the victim. In other words, an element of battery is actual harm or

                                               11

physical contact. As set forth above, the elements of robbery include “by force or putting

him in fear.” Harless, 168 W.Va. at 707, 285 S.E.2d at 462, syl. pt. 1, in part (emphasis

added). The use of the word “or” indicates an alternative choice.12 Thus, a person can

commit the offense of robbery in the first degree without ever touching the victim. Robbery

can be perpetrated by simply threatening the use of force. In addition, an element of battery

is the intent to cause physical harm to another person. The intent to injure, however, is not

an element of robbery. Rather, robbery requires the specific intent to steal money or goods.

As such, there are elements necessary to prove battery that are irrelevant to the proof of

robbery in the first degree. Therefore, the Louk test is not satisfied. Accordingly, we now

hold that battery as defined by West Virginia Code § 61-2-9(c) is not a lesser included

offense of robbery in the first degree.13



               Likewise, misdemeanor assault is not a lesser included offense of robbery in

the first degree. 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

       12
         See State ex rel. Dewey Portland Cement Co. v. O’Brien, 142 W.Va. 451, 464, 96
S.E.2d 171, 178 (1956) (use of disjunctive particle “or” denotes alternative choice); State v.
Carter, 168 W.Va. 90, 92, 282 S.E.2d 277, 279 (1981) (use of word “or” indicates various
alternative ways).
       13
          Other jurisdictions applying the strict elements test have also concluded that battery
is not a lesser included offense of robbery. See Commonwealth v. Stewart, 957 N.E.2d 712
(Mass. 2011) (assault and battery by dangerous weapon not lesser included offense of armed
robbery); Clark v. State, 282 S.W.3d 801 (Ark. 2008) (battery not lesser included offense
of robbery); Waibel v. State, 808 N.E.2d 750 (Ind. Ct. App. 2004) (same).

                                                12

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. Moreover, assault requires the intent to place a person in fear of harm.

As discussed, such an intent is not required for robbery in the first degree. Therefore, we

now hold that misdemeanor assault as defined by W.Va. Code § 61-2-9(b) is not a lesser

included offense of robbery in the first degree.14



              Having found that misdemeanor assault and battery are not lesser included

offenses of first degree robbery, it is not necessary to proceed to the second inquiry under

syllabus point one of Jones. The circuit court did not commit error in refusing to give the

petitioner’s requested instructions for assault and battery.




                                    IV. CONCLUSION

              For the reasons set forth above, the final order of the Circuit Court of Ohio

County entered on July 6, 2011, is affirmed.

                                                                                  Affirmed.




       14
        This Court has previously held that malicious or unlawful assault as defined by West
Virginia Code § 61-2-9(a) is not a lesser included offense of robbery. State v. Vance, 168
W.Va. 666, 285 S.E.2d 437 (1981).

                                              13
