BUNN, Chief Justice:

Petitioner Austin Stevens appeals the Circuit Court of Cabell County’s September 20, 2023 sentencing order following his conviction for a single count of unlawfully, feloniously, and intentionally torturing, mutilating, or maliciously killing an animal, in violation of West Virginia Code § 61-8-19(b). On appeal, Mr. Stevens raises a single assignment of error: that the circuit court erred by finding that misdemeanor animal cruelty is not a lesser included offense of the felony provision in the same statute and, in turn, denying his motion for a jury instruction on the lesser offense. We conclude that the circuit court committed no error and affirm Mr. Stevens’s conviction.

I. FACTUAL AND PROCEDURAL HISTORY Vickie and Rusty Scarberry owned and raised cattle in Cabell County, West Virginia. On December 4, 2021, a neighbor noticed that one of the Scarberrys’ calves was wounded1 and notified Mrs. Scarberry. Mrs. Scarberry saw that the calf had been shot by two arrows, with one protruding from the calf’s side and another from its head; the calf was having difficulty breathing; and blood was streaming down its face. Mrs. Scarberry first called 9-1-1, then she called her husband. Upon arriving home, Mr. Scarberry observed that the calf was “foaming out the nose[.]” Based upon his knowledge as a cattle owner, he believed that an arrow had punctured the calf’s lung and that there was no way to save the calf’s life. He then followed the trail of blood from the calf’s wounds to Mr. Stevens’s home.^[2] Mr. Scarberry confronted Mr. Stevens, but Mr. Stevens denied shooting the calf.

Among other officers, Animal Control Officer3 Jon Rutherford arrived at the scene of the incident. When Officer Rutherford saw the calf, “it still had the arrow sticking out of its chest to where it was ticking to each heartbeat, which is a sign that it was shot directly into the heart.” The calf stood near its mother, not moving and struggling to breathe. Officer Rutherford first spoke with Mr. Scarberry. Mr. Scarberry indicated he was unable to “put the animal down” because it was “a baby,” but he consented to Officer Rutherford euthanizing the calf.^[4] Officer Rutherford also followed the trail of blood from the calf’s wounds to Mr. Stevens’s residence. He spoke with Mr. Stevens, who admitted to shooting the calf. In his initial statement, Mr. Stevens provided various reasons for shooting the calf: (1) he was tired of the calf coming onto his property and defecating, (2) he did not like Mr. Scarberry, and (3) he was fearful for his life because the calf was on his property.^[5] Mr. Stevens went back inside his home feeling “scared.” Mr. Stevens said he was in his car leaving his home with his girlfriend when Mr. Scarberry confronted him about shooting the calf.

first year to be served on home incarceration. The court also ordered Mr. Stevens to pay $1,500 in restitution.

cruelty as a lesser included offense of the felony provision under the same statute. Specifically, Mr. Stevens argues that the misdemeanor animal cruelty offense of intentionally, knowingly, or recklessly “mistreat[ing] an animal in a cruel manner is a lesser included offense of the felony offense of maliciously kill[ing] an animal[.]” (alterations in original). He further contends that he presented evidence at trial that would support giving the instruction on the lesser included offense. We disagree and conclude that the misdemeanor animal cruelty offense of intentionally, knowingly, or recklessly mistreating an animal in a cruel manner is not a lesser included offense of the felony offense of maliciously killing an animal.

assault in the first degree is not a lesser included offense of sexual assault in the first degree and Petitioner was not entitled to the instruction because the first prong of Neider is not met.”); see also Wilkerson, 230 W. Va. at 372, 738 S.E.2d at 38 (declining to proceed to the second inquiry after concluding that the first inquiry was not satisfied).

required of the felony provision. See Syl. Pt. ^[1], Louk, 169 W. Va. 24, 285 S.E.2d 432. Generally, we have strictly followed this elements test. See Wilkerson, 230 W. Va. at 370- 71, 738 S.E.2d at 36-37 (“This Court has always applied the strict elements test as set forth in syllabus point one of Louk to determine whether a lesser included instruction is warranted.”); see also State v. Henning, 238 W. Va. 193, 196, 793 S.E.2d 843, 846 (2016) (“[H]istorically, this Court has applied the strict elements test to determine whether a lesser included offense instruction is warranted in a particular case.” (quotations and citation omitted)).7 commit animal cruelty, under this specific subpart, an individual must (1) intentionally, knowingly or recklessly (2) mistreat an animal (3) in a cruel manner. In contrast, the felony provision provides that,

(b) A person who intentionally tortures, or mutilates or maliciously kills an animal, or causes, procures or authorizes any other person to torture, mutilate or maliciously kill an animal, is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility not less than one nor more than five years and be fined not less than one thousand dollars nor more than five thousand dollars. For the purposes of this subsection, “torture” means an action taken for the primary purpose of inflicting pain. Relevant to this matter, an individual commits felony animal cruelty when the individual (1) maliciously (2) kills an animal.^[9] W. Va. 584, 587, 378 S.E.2d 449, 452 (1989). As one example, this Court approved the following instruction regarding malice:

The word malice, as used in these instructions, is used in a technical sense. It may be either express or implied and it includes not only anger, hatred and revenge, but other unjustifiable motives. . . . Malice is not confined to ill-will toward any one or more particular persons, but malice is every evil design in general; and by it is meant that the fact has been attended by such circumstances as are ordinarily symptoms of a wicked, depraved and malignant spirit, and carry with them the plain indications of a heart, regardless of social duty, and fatally bent upon mischief. . . .[10] Id. at 588 n.1, 378 S.E.2d at 453 n.1 (quotations omitted).11 On the other hand, while our statute does not define the term “cruel manner,” other states have defined treating animals in a “cruel manner” as requiring unnecessary pain to the animal. See, e.g., Houk v. State, 316 So. 3d 788, 794 (Fla. Dist. Ct. App. 2021) (explaining that “acts of carrying [an animal] in a cruel manner naturally result in unnecessary pain or suffering to that animal” (emphasis added)).12

Based upon these definitions, an individual could maliciously kill an animal without first mistreating an animal in a cruel manner. Put another way, acts that may be malicious or cruel in general (i.e. killing an animal out of malice) is not the same as cruelty in the execution or by the means of an act (i.e. in a cruel manner). For example, one may kill an animal with malicious intent toward the owner of the animal or the animal itself, but accomplish the killing in an otherwise humane way. Cf., Syl., in part, Burgess, 205 W. Va. 87, 90, 516 S.E.2d 491 (concluding that when one “unlawfully dispatches a domestic animal belonging to another person by using a commonly accepted, humane method, and there is no evidence of any other form of malice, the killing is not malicious” (emphasis added)). Because it is possible to commit the greater offense, maliciously killing an animal, without also committing the lesser offense, mistreating an animal in a cruel manner, the strict elements test is not satisfied.

While Mr. Stevens “recognizes that the literal wording of subsection (b) does not contain all the elements of subsection (a)(1)(A), plus one or more additional elements, making it immediately obvious that one is the lesser included offense[,]” he instead argues that we should find that the Legislature intended the misdemeanor offense of animal cruelty, here cruel mistreatment, to be a lesser included offense of the felony offense, here maliciously killing an animal, based on the structure of the statute. We disagree.

As we stated above, this Court, with rare exception, has strictly applied the elements test when determining whether a lesser offense was a lesser included offense. However, we acknowledge that in a few unique circumstances, we have varied from that general rule. In Henning, the Court considered whether assault was a lesser included offense of malicious assault. 238 W. Va. at 195, 793 S.E.2d at 845. The petitioner asserted that assault could not be a lesser included offense of malicious assault because of the absence of an element from the statutory definition of malicious assault. Id. at 197, 793 S.E.2d at 847. Nevertheless, the Court acknowledged the Legislative intent in “this rare and unique circumstance” and found that “[a]s West Virginia Code § 61-2-9 is written, it is clear that the [L]egislature intended the lesser degrees of assault to be lesser included offenses.” Id. at 199, 793 S.E.2d at 849. The Henning Court explained that it had “long held that assault and battery are lesser included offenses of malicious assault.” Id. at 197, 793 S.E.2d at 847. In fact, prior to the codification of the offenses of assault and battery, the Court had held that “[a] conviction for assault and battery will be sustained under an indictment for violating the provisions of Code 61-2-9 [defining malicious assault and unlawful assault], because of the provisions of Code, 62-3-14.[13]” Id. at 197-98, 793 S.E.2d at 847-48 (first alteration added) (quoting Syl. Pt. ^[1], State v. Craft, 131 W. Va. 195, 47 S.E.2d 681 (1948)). The Court reiterated that

“Notwithstanding that the crime of assault and battery is not expressly included in the provisions of Code, 61-2-9, providing for the crimes of malicious [assault] and unlawful [assault], the penalties therefor, and that such crimes shall constitute felonies, a conviction for assault and battery, under the provisions of Code, 62-3-14, may be had in a prosecution for the crime of malicious or unlawful [assault] provided for in Code, 61-2-9.” Syl. Pt. ^[3], State v. King, 140 W.Va. 362, 84 S.E.2d 313 (1954). Henning, 238 W. Va. at 198, 793 S.E.2d at 848 (alterations in original). Ultimately, the Henning Court found that “by placing the offenses of assault and battery within the framework of West Virginia Code § 61-2-9, it [wa]s clear that the legislature intended to import the common law pertaining to the offenses of assault and battery into the statute.” Id. at 200, 793 S.E.2d at 850.14 The Court further explained that “[o]ther jurisdictions . . . have chosen to expand the definition of lesser included offense.” Id. at 199, 793 S.E.2d at 849. However, this Court has explicitly declined to modify our strict elements test, finding it was “unnecessary . . . because this Court long ago determined under the common law that a misdemeanor assault conviction is sustainable under an indictment for malicious assault.” Id. at 200, 793 S.E.2d at 850.

expand our strict elements test.^[16] Consequently, we find that the misdemeanor animal cruelty offense set forth in West Virginia Code § 61-8-19(a)(1)(A) is not a lesser included offense of the felony offense of maliciously killing an animal as set forth in West Virginia Code § 61-8-19(b). Because we find that the misdemeanor animal cruelty offense of mistreating an animal in a cruel manner is not a lesser included offense of the felony provision, it is not necessary to proceed to the second inquiry regarding whether there was evidence which would have tended to prove mistreatment of an animal in a cruel manner. We, therefore, conclude that the circuit court did not err in refusing to give Mr. Stevens’s requested instruction for misdemeanor animal cruelty.

IV. CONCLUSION

Accordingly, for the reasons set forth above, the September 20, 2023 sentencing order of the Circuit Court of Cabell County is affirmed.

Affirmed.