State of West Virginia v. James Wilkerson, 738 S.E.2d 32

Wilkerson was convicted of two counts of first-degree robbery, and additional counts of assault during the commission of a felony and conspiracy to commit robbery.
Sentences: two fifteen-year terms? Actually eighty years total for robbery counts, plus 2–10 years for assault and 1–5 years for conspiracy; all concurrent.
Appeal contested the trial court's refusal to give jury instructions on misdemeanor assault and battery as lesser included offenses of robbery.
Material events occurred on the evening of November 14, 2008, at a Wheeling playground; victims were beaten and injured.
Eyewitnesses testified that both Wilkerson and codefendant attacked the victims; codefendant testified he only intended to collect a debt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are misdemeanor assault or battery lesser included offenses of robbery in the first degree?	Wilkerson	Wilkerson	Not entitled to lesser included offense instructions

State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981) (strict elements test for lesser included offenses)
State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982) (no lesser included instruction where elements differ)
State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985) (two-step inquiry for lesser included offenses)
State v. Wade, 200 W.Va. 637, 490 S.E.2d 724 (1997) (murder variants not lesser included offenses of felony murder)
State v. Bradford, 199 W.Va. 338, 484 S.E.2d 221 (1997) (accessory after the fact not lesser included of murder)
State v. Noll, 223 W.Va. 6, 672 S.E.2d 142 (2008) (daytime entering without breaking not lesser included of burglary)