State of West Virginia v. Darius Henning
238 W. Va. 193
W. Va.2016Background
- Darius Henning was indicted for malicious assault (felony) for allegedly stabbing/cutting Skilor Perdue on Dec. 19, 2014; trial occurred June 29, 2015.
- Perdue testified she was cut while trying to pull the petitioner from a car; at other points she said she did not see a knife until after being cut and told hospital staff she cut herself.
- The jury was instructed on malicious assault, unlawful assault, battery, and assault (including both "attempt" and "reasonable apprehension" theories for assault).
- The jury convicted Henning of misdemeanor assault (acquitting him of malicious assault and the other felony/offenses).
- Henning moved for judgment of acquittal arguing assault is not a lesser included offense of malicious assault and thus he was convicted of an offense not charged; the circuit court denied the motion and sentenced him to six months.
- Henning appealed to the West Virginia Supreme Court of Appeals, which considered whether misdemeanor assault is a lesser included offense of malicious assault and whether evidence supported the assault instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether misdemeanor assault is a lesser included offense of malicious assault under WV Code § 61-2-9 | State: historical common-law treatment and statutory structure show lesser degrees in § 61-2-9 are lesser included offenses | Henning: statutory elements differ (assault requires "reasonable apprehension") so strict-elements test bars inclusion | Court held assault is a lesser included offense of malicious assault under the statute and common law |
| Whether the jury could be instructed on assault based on the evidence | State: Perdue’s inconsistent testimony (saw knife earlier / attempted to grab it) provided factual basis for assault instruction | Henning: no factual support for the apprehension theory; conviction differs from indictment | Court held evidence supported an assault instruction (jury could reasonably infer apprehension or attempt) |
| Whether convicting on assault violated notice/due process because indictment charged malicious assault | Henning: convicted of offense not charged violates Corra due process rule | State: Rule 31(c) and common-law practice permit conviction of necessarily included offenses | Court held no notice violation because assault is necessarily included and Rule 31(c) applies |
| Whether an expanded lesser-included-offense test is required (beyond strict elements) | Henning: urged reliance on strict elements (Wilkerson) to exclude assault | State: relied on common law and statutory structure; declined to require adopting Burns/Model Penal Code approach | Court declined to adopt expanded test as unnecessary here; relied on common law and statutory construction |
Key Cases Cited
- State v. Corra, 223 W.Va. 573 (W.Va. 2009) (due process notice rule: conviction of unindicted charge requires reversal)
- State v. Wilkerson, 230 W.Va. 366 (W.Va. 2013) (discussion of strict elements test for lesser included offenses)
- State v. Louk, 169 W.Va. 24 (W.Va. 1981) (formulation of strict-elements test for lesser included offenses)
- State v. Craft, 131 W.Va. 195 (W.Va. 1948) (common-law rule sustaining assault/battery convictions under malicious assault indictments)
- State v. Jones, 174 W.Va. 700 (W.Va. 1985) (second factual inquiry: evidence must support instruction on lesser included offense)