State of West Virginia v. Joshua M.
16-0465
| W. Va. | Sep 5, 2017Background
- In April 2014 petitioner Joshua M. was babysitting a two-year-old who became unresponsive; she died the following day. An autopsy ruled the death a homicide from blunt head, neck, and trunk trauma.
- Petitioner told police the child’s injuries were from an accidental fall; the State indicted him on felony child abuse resulting in death, gross child neglect creating substantial risk, and presenting false information (the neglect count was later dismissed).
- At trial petitioner requested a jury instruction that child neglect resulting in death is a lesser-included offense of child abuse resulting in death; the circuit court denied the request.
- The jury convicted petitioner of felony child abuse resulting in death and acquitted him on the other charged count; the court sentenced him to 40 years’ imprisonment.
- On appeal petitioner argued the court erred by refusing the lesser-included instruction; the Supreme Court of Appeals affirmed, holding neglect is not a lesser-included offense of abuse under West Virginia law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether child neglect resulting in death is a lesser-included offense of child abuse resulting in death | Joshua: Abuse necessarily includes a prior failure to exercise minimal care, so neglect resulting in death is a lesser-included offense | State/Court: Abuse and neglect are distinct statutory elements; neglect is not required to prove abuse | Court: Denial of instruction proper; neglect is not a lesser-included offense of abuse |
Key Cases Cited
- State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996) (standard of review for mixed fact-law issues)
- State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010) (application of Head standard)
- State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996) (review standards for jury instruction rulings)
- State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994) (criteria for reversible error when a requested instruction is refused)
- State v. Brock, 235 W.Va. 394, 774 S.E.2d 60 (2015) (reciting Derr instruction requirements)
- State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981) (test for lesser-included offenses: impossibility of committing greater without first committing lesser)
- State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982) (application of Louk test)