Lead Opinion
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.
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 “eodefendant”),
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 Stephen, “Where’s the weed at?” Both victims replied that they did not have any weed. The eodefendant 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.
Stephen testified that he gave his wallet to the eodefendant and that the eodefendant continued to kick him and demand money. David offered his cell phone to the 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.
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/reeonstruetive 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.
On January 12, 2009, the petitioner was indicted on two counts of robbery in the first degree,
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 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 ease 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*370 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.
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,
[bjefore 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.
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 determine whether the evidence adduced at trial supports a lesser included instruction.
We now turn to the offenses at issue in the instant case and apply our strict elements test to determine whether misdemean- or 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 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. at 707, 285 S.E.2d at 462.
With respect to the offense of misdemean- or assault, West Virginia Code § 61 — 2—9(b) (2010) provides:
Assatdt. — 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 per*372 son 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 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.
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 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.
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.
. 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.
. The petitioner and codefendant were tried separately. See note 3, infra.
. 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.
. When the events at issue occurred, Stephen and David were thirteen years old. The petitioner was twenty and the codefendant was eighteen.
. The petitioner and codefendant were roommates.
.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.
. 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.
. See note 11, infra.
. 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.
.The petitioner also cited McFarland v. State, 179 Ind.App. 143, 384 N.E.2d 1104 (1979). We also find this case unpersuasive.
. We note that Kansas has now adopted the strict elements test. See State v. McKissack, 283 Kan. 721, 156 P.3d 1249, 1254 (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).
. See State ex ret 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).
. Other jurisdictions applying the strict elements test have also concluded that battery is not a lesser included offense of robbery. See Commonwealth v. Stewart, 460 Mass. 817, 957 N.E.2d 712 (2011) (assault and battery by dangerous weapon not lesser included offense of armed robbery); Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008) (battery not lesser included offense of robbery); Waibel v. State, 808 N.E.2d 750 (Ind.Ct.App.2004) (same).
.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).
Concurrence Opinion
concurring:
I agree with the Majority’s disposition of this case. I write separately to highlight an alternative basis for affirming the circuit court’s final order.
In State v. Hudson, 157 W.Va. 939, 945, 206 S.E.2d 415, 419-20 (1974), the defendant argued that he was improperly denied an instruction for assault and battery during his prosecution for robbery. The Court found no merit in his argument, holding, “Where the evidence warrants the conviction of the
As noted by the Majority, other jurisdictions and authorities have discussed whether an instruction of battery or assault as lesser included offenses of robbery must be given. W.R. Habeeb, Effect of Failure or Refusal of Court, in Robbery Prosecution, to Instruct on Assault and Battery, 58 A.L.R.2d 808, 809-10 (1958), summarizes the approaches in other jurisdictions:
[I]t has been held that such an instruction need not be given, because the lesser crime is merged in the greater, where (1) the prosecuting witness testifies positively that the crime charged has been committed and there is no contradictory evidence on that issue; (2) the defendant asserts an alibi and denies his presence at the time and place of the alleged crime; or (3) the defendant admits his presence at the time and place of the alleged crime, but denies that any criminal act was committed.
(Footnotes omitted). Of the three scenarios described, the third matches the facts of this ease: The petitioner admits that he was present at the time and place of the crime, but he denies that he committed any crime.
No independent evidence was presented in this case to support an instruction on a lesser included offense. Any arguably lesser included offense — battery or assault — would have merged with the robbery charge. Therefore, the circuit court was not required to give an instruction as to lesser included offenses, regardless of this Court’s determination that battery and assault are not lesser included offenses of robbery.