State of West Virginia v. James Wilkerson

No. 11-1123 – State of West Virginia v. James Wilkerson
FILED
March 4, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benjamin, Chief Justice, 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 crime charged and there is no
independent evidence that would warrant a conviction of lesser offenses an instruction
relative to lesser offenses need not be given.” Id. at syl. pt. 3.
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
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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
case: 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.
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