State of West Virginia v. Zachary Elijah Bland, 239 W. Va. 463

Background

Petitioner Bland was tried in magistrate court on domestic battery charges arising from a February 17, 2015 incident.
Key witnesses included Bland, his wife, and Bland’s stepson Wanstreet; Bland claimed self-defense.
During trial, the State requested jury instructions on domestic assault as a lesser included offense of domestic battery.
The magistrate court instructed on both domestic battery and domestic assault; the jury found a ruling on a lesser included offense was applicable.
The circuit court affirmed Bland’s conviction for domestic assault, and Bland appealed.
The Supreme Court of Appeals analyzed whether domestic assault is a lesser included offense of domestic battery and whether there was evidence to support it.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is domestic assault a lesser included offense of domestic battery?	Bland: not a lesser included offense; improper instruction.	Bland: domestic assault is a lesser included offense as construed by Henning and Wilkerson.	Yes; domestic assault is a lesser included offense of domestic battery.
Was there evidence to support a domestic assault instruction?	Evidence did not prove domestic assault beyond domestic battery.	Evidence showed attempts to place Wanstreet in apprehension and other facts supporting assault.	There was sufficient evidence to warrant the domestic assault instruction.
Did charging only domestic battery preclude a domestic assault instruction?	Constitutional notice requires indictment alignment with charged offense.	Rule allows conviction for a lesser included offense without additional notice.	No; lesser included offense instruction permissible and consistent with Rule 31(c).
Did the jury verdict properly reflect the lesser included offense given the record evidence?	Conviction on a charge not proven by the indictment is per se error.	Henning and Wilkerson authorize lesser included offense verdicts when supported by evidence.	Yes; the verdict on domestic assault was proper given the evidence presented.
Are the domestic assault and domestic battery offenses properly distinguished for double jeopardy and legislative intent?	Different offenses require separate proof and punishment.	Statutory structure places lesser offenses under the umbrella of the greater offenses; no double jeopardy violation.	Yes; domestic assault is a lesser included offense of domestic battery and properly limited by the statutory framework.

Key Cases Cited

State v. Hinkle, 200 W.Va. 280 (1996) (abuse of discretion vs. de novo review for jury instruction adequacy)
State v. Corra, 223 W.Va. 573 (2009) (per se error when convicting of a charge not in the indictment)
State v. Henning, 238 W.Va. 193 (2016) (lowered form of assault as lesser included offense; statutory structure and double jeopardy consideration)
State v. Wilkerson, 230 W.Va. 366 (2013) (two-step inquiry for lesser included offense and sufficiency of evidence)
State v. Louk, 169 W.Va. 24 (1981) (test for lesser included offenses)
State v. Vance, 168 W.Va. 666 (1981) (corpus delicti elements and relevance to lesser offenses)
State v. Derr, 192 W.Va. 165 (1994) (abuse of discretion standard for evidence supporting instructions)
State v. Bradford, 199 W.Va. 338 (1997) (abuse of discretion review in evaluating lesser included offenses)