lesser included offense instruction in West Virginia

2020Va. 663 , 337 S.E.2d 321 (1985)] FINDS that [petitioner] does not have the right to preclude the State from seeking a lesser included offense instruction where it is determined that the offense is legally lesser included and that such an instruction is warranted by the evidence.

1996In considering the point raised by appellant, we note that in State v. Wallace, 175 W.Va. 663 , 337 S.E.2d 321 (1985), this Court concluded that “a defendant does not have the right to preclude the State from seeking a lesser included offense instruction where it is determined that the offense is legally lesser included and that such an instruction is warranted by the evidence.” Id. at 667 , 337 S.E.2d at 325-26 .

2009As noted in Watson [ 99 W.Va. 34 , 127 S.E. 637 (1925) ], State v. Lutz, 85 W.Va. 330 , 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment.

1988As noted in Watson, State v. Lutz, 85 W.Va. 330 , 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment.

2009As noted in Watson [ 99 W.Va. 34 , 127 S.E. 637 (1925) ], State v. Lutz, 85 W.Va. 330 , 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment.

2009As noted in Watson [ 99 W.Va. 34 , 127 S.E. 637 (1925) ], State v. Lutz, 85 W.Va. 330 , 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment.

1991Va. Code, 61-3-39 [1977], The State asserts that the appellant was not entitled to a lesser included offense instruction under this Court’s holdings in State v. Louk, 169 W.Va. 24 , 285 S.E.2d 432 (1981), and State v. Neider, 170 W.Va. 662 , 295 S.E.2d 902 (1982).

1991Va. Code, 61-3-39 [1977], The State asserts that the appellant was not entitled to a lesser included offense instruction under this Court’s holdings in State v. Louk, 169 W.Va. 24 , 285 S.E.2d 432 (1981), and State v. Neider, 170 W.Va. 662 , 295 S.E.2d 902 (1982).

2026West Virginia Code § 61-8-19(a)(1), the misdemeanor animal cruelty statute, provides in relevant part, that “[i]t is unlawful for any person to intentionally, knowingly or recklessly, (A) Mistreat an animal in cruel manner[.]”8 Therefore, in order to 7 See also State v. Wade, 200 W.

2023Let me tell you, that man [Petitioner] didn’t do it.” The State argues that this defense may preclude a criminal defendant from requesting a lesser included offense instruction. 13 See State v. Dellinger, 178 W.

2023Va. 265 , 358 S.E.2d 826 (1987) (holding that, under certain facts, sexual abuse in the first degree is a lesser included offense of sexual assault in the first degree.) 14 Although the crime of attempted sexual assault in the first degree is not a lesser included offense of sexual assault in the first degree, this Court has previously concluded that the crime of sexual abuse in the first degree is a lesser included offense of sexual assault in the first degree under certain facts.

2020Accordingly, we can reach this issue on appeal only if we find that the failure to instruct on a lesser included offense was plain error, which in turn requires us to determine whether there was “‘(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceeding.’” Games-Neely, 237 W.

2016Recently, in State v. Wilkerson, 230 W.Va. 366 , 738 S.E.2d 32 (2013), we explained that, historically, this Court has applied “the strict elements test” to determine whether a lesser included offense instruction is warranted in a particular case.

2016Recently, in State v. Wilkerson, 230 W.Va. 366 , 738 S.E.2d 32 (2013), we explained that, historically, this Court has applied “the strict elements test” to determine whether a lesser included offense instruction is warranted in a particular case.

2010Tennant, 194 W.Va. at 102 , 459 S.E.2d at 379 , syl. pt. 6.

2010Tennant, 194 W.Va. at 102 , 459 S.E.2d at 379 , syl. pt. 6.

2009As noted in Watson [ 99 W.Va. 34 , 127 S.E. 637 (1925) ], State v. Lutz, 85 W.Va. 330 , 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment.

2009As noted in Watson [ 99 W.Va. 34 , 127 S.E. 637 (1925) ], State v. Lutz, 85 W.Va. 330 , 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment.

2007The Court explained: If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant may be held accountable, then the question is whether Beck [v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980)] requires that a lesser included offense instruction be given, with the defendant being forced to waive the expired statute of limitations on those offenses, or whether the defendant should be given a choice between having the benefit of the lesser included offense instruction or asserting the statute of limitations on the lesser included offense

2007The Court explained: If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant may be held accountable, then the question is whether Beck [v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980)] requires that a lesser included offense instruction be given, with the defendant being forced to waive the expired statute of limitations on those offenses, or whether the defendant should be given a choice between having the benefit of the lesser included offense instruction or asserting the statute of limitations on the lesser included offense

2002In syllabus point one of State v. Jones, 174 W.Va. 700 , 329 S.E.2d 65 (1985), this Court explained the standard for determining whether a lesser included offense instruction should be provided, as follows: The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry.

2002In syllabus point one of State v. Jones, 174 W.Va. 700 , 329 S.E.2d 65 (1985), this Court explained the standard for determining whether a lesser included offense instruction should be provided, as follows: The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry.

2000On appeal, the appellant contends the circuit court erred by holding: (1) that a felony prosecution commences at the time of a valid arrest which distinguishes this case from State v. King, 140 W.Va. 362 , 84 S.E.2d 313 (1954); and (2) that the appellant’s request for a lesser included offense instruction acted as a waiver of the statute of limitations defense.

2000On appeal, the appellant contends the circuit court erred by holding: (1) that a felony prosecution commences at the time of a valid arrest which distinguishes this case from State v. King, 140 W.Va. 362 , 84 S.E.2d 313 (1954); and (2) that the appellant’s request for a lesser included offense instruction acted as a waiver of the statute of limitations defense.

1995See also State v. Hays, supra; State v. Murray, 180 W.Va. 41 , 375 S.E.2d 405 (1988); State v. Thompson, 176 W.Va. 300 , 342 S.E.2d 268 (1986); and State v. Gum, 172 W.Va. 534 , 309 S.E.2d 32 (1983).

1995See also State v. Hays, supra; State v. Murray, 180 W.Va. 41 , 375 S.E.2d 405 (1988); State v. Thompson, 176 W.Va. 300 , 342 S.E.2d 268 (1986); and State v. Gum, 172 W.Va. 534 , 309 S.E.2d 32 (1983).

1995See also State v. Hays, supra; State v. Murray, 180 W.Va. 41 , 375 S.E.2d 405 (1988); State v. Thompson, 176 W.Va. 300 , 342 S.E.2d 268 (1986); and State v. Gum, 172 W.Va. 534 , 309 S.E.2d 32 (1983).

1995See also State v. Hays, supra; State v. Murray, 180 W.Va. 41 , 375 S.E.2d 405 (1988); State v. Thompson, 176 W.Va. 300 , 342 S.E.2d 268 (1986); and State v. Gum, 172 W.Va. 534 , 309 S.E.2d 32 (1983).

1991In syllabus point 3 of State v. Stout, 142 W.Va. 182 , 95 S.E.2d 639 (1956), the Court held: “Making, uttering and delivering a worthless check as payment on a pre-existing debt, where the maker receives no property or thing of value, is not a crime under Code, 61-3-39.” (emphasis supplied) Under the test in syllabus point 2 of Neider , there must be an evidentiary dispute as to the elements of the two offenses which are different from each other before the appellant is entitled to a lesser included offense instruction.

1991In syllabus point 3 of State v. Stout, 142 W.Va. 182 , 95 S.E.2d 639 (1956), the Court held: “Making, uttering and delivering a worthless check as payment on a pre-existing debt, where the maker receives no property or thing of value, is not a crime under Code, 61-3-39.” (emphasis supplied) Under the test in syllabus point 2 of Neider , there must be an evidentiary dispute as to the elements of the two offenses which are different from each other before the appellant is entitled to a lesser included offense instruction.

1990In State v. Wayne, 169 W.Va. 785 , 289 S.E.2d 480 (1982), this Court adopted the rule that in order for the felony-murder statute to apply, the initial felony and the homicide must be part of a continuous transaction, closely related in point of time, place, and causal connection for the felony-murder statute to apply.

1990In State v. Wayne, 169 W.Va. 785 , 289 S.E.2d 480 (1982), this Court adopted the rule that in order for the felony-murder statute to apply, the initial felony and the homicide must be part of a continuous transaction, closely related in point of time, place, and causal connection for the felony-murder statute to apply.

1989In syllabus point 2 of State v. Neider, 170 W.Va. 662 , 295 S.E.2d 902 (1982), we held that “[wjhere 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.” Accord, syl. pt. 4, State v. Mullins, 181 W.Va. 415 , 383 S.E.2d 47 (1989).

1989In syllabus point 2 of State v. Neider, 170 W.Va. 662 , 295 S.E.2d 902 (1982), we held that “[wjhere 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.” Accord, syl. pt. 4, State v. Mullins, 181 W.Va. 415 , 383 S.E.2d 47 (1989).

1989Syl. pt. 2, State v. Dozier, 163 W.Va. 192 , 255 S.E.2d 552 (1979).

1989Syl. pt. 2, State v. Dozier, 163 W.Va. 192 , 255 S.E.2d 552 (1979).

1987People v. Repke, 103 Mich. at 468 , 61 N.W. at 863-64 ; State v. Wiseman, 178 N.C. at 795-96 , 101 S.E. at 634 ; White v. State, 30 Tex.App. at 656, 18 S.W. at 463 .

1987People v. Repke, 103 Mich. at 468 , 61 N.W. at 863-64 ; State v. Wiseman, 178 N.C. at 795-96 , 101 S.E. at 634 ; White v. State, 30 Tex.App. at 656, 18 S.W. at 463 .

1987People v. Repke, 103 Mich. at 468 , 61 N.W. at 863-64 ; State v. Wiseman, 178 N.C. at 795-96 , 101 S.E. at 634 ; White v. State, 30 Tex.App. at 656, 18 S.W. at 463 .

1987We held at Syl. pt. 2 of Berkeley Homes, Inc. v. Radosh, 172 W.Va. 683 , 310 S.E.2d 201 (1983): If a party fails to offer an instruction regarding a particular point of law upon which he relies, he cannot later complain of the absence of such an instruction, there being no duty upon the court to so instruct the jury except when the error is so plain and the result so outrageous that the trial court must intervene to do substantial justice.

1987We held at Syl. pt. 2 of Berkeley Homes, Inc. v. Radosh, 172 W.Va. 683 , 310 S.E.2d 201 (1983): If a party fails to offer an instruction regarding a particular point of law upon which he relies, he cannot later complain of the absence of such an instruction, there being no duty upon the court to so instruct the jury except when the error is so plain and the result so outrageous that the trial court must intervene to do substantial justice.