Supreme Court of West Virginia Upholds Conviction for Lesser Included Offense

knifeIt is a central part of a criminal defendant’s constitutional rights that he or she cannot be convicted of a crime for which he or she is not charged.  As part of procedural due process, a criminal defendant must have an opportunity to know the crime that he or she faces and to address the particular elements of that crime.  Thus, when a State charges a defendant with a certain crime but convicts him or her of a different crime, a constitutional error is said to occur.  However, under Rule 31(c) of the West Virginia Rules of Criminal Procedure, a defendant may be convicted of a lesser included offense of the original charge that was brought without violating these constitutional protections. In State v. Henning, the Supreme Court looked at what constitutes a lesser included offense.

Mr. Henning was indicted for malicious assault after he attacked his girlfriend while they were driving in West Virginia. Mr. Henning and his girlfriend became involved in a heated fight during the course of driving to a friend’s house. The girlfriend, Ms. Perdue, eventually asked Mr. Henning to leave the car.  While she was attempting to get him out of the car, he cut her with a knife, requiring treatment and stitches.  Although Mr. Henning was indicted for malicious assault, at trial, the jury was permitted to consider four possible counts:  malicious assault, unlawful assault, battery, or assault. It ultimately returned a verdict of guilty of assault, but it acquitted Mr. Henning of malicious assault. Mr. Henning filed a motion for a judgment of acquittal under the argument that assault is not an element of malicious assault, and his conviction was unconstitutional. The motion was denied, and Mr. Henning appealed.

On appeal, the West Virginia Supreme Court turned to its “strict elements” test to determine whether assault was a lesser included offense of malicious assault. Under this test, the lesser offense must be such that it would be impossible for the defendant to commit the greater offense without also committing the lesser offense.  Here, assault can be proven by showing that the defendant committed an act that placed the victim in reasonable apprehension of harm.  Malicious assault requires a showing that the defendant unlawfully, intentionally, and maliciously stabbed, cut, or wounded the victim with the intent to maim, disable, or kill.  Mr. Henning argued that since malicious assault does not contain a requirement of “reasonable apprehension,” assault is not a lesser included offense.

In considering Mr. Henning’s arguments, the Supreme Court noted that both malicious assault and assault are contained within one criminal statute, which lists varying degrees of assault. The Court interpreted this as essentially one criminal offense with varying degrees of punishment, based on the nature of its completion.  Under this interpretation, it held that it would be absurd for the court to conclude that basic assault was not a lesser included offense of malicious assault. In support of this finding, it noted that, were the two different, it might be possible that an offender could be charged with both assault and malicious assault as two distinct crimes, which would make no sense under the statute. Accordingly, the court concluded that assault was a lesser included offense of malicious assault, and there was no constitutional violation in convicting Mr. Henning of assault.

If you are a criminal defendant, you are entitled to your day in court. You cannot be told by the government that you will be tried for one crime and then unwittingly convicted of another. However, if your offense contains lesser offenses as well, such as battery and attempted battery, you must be aware that you may be held accountable for such lesser crimes.  The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years and can assist you in developing a strategy to defend against your charges. Call us at 1-877-637-5756 or contact us online for a free consultation.

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