STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent April 16, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 12-0406 (Wetzel County 11-F-21) OF WEST VIRGINIA 

Justin R.,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner’s appeal, by counsel Richard H. Lorensen, arises from the Circuit Court of 

Wetzel County, wherein he was sentenced to two consecutive terms of incarceration of two to ten 

years following his convictions for child abuse resulting in serious bodily injury and malicious 

assault by order entered on March 27, 2012.1 The State, by counsel Laura Young, has filed its 

response, to which petitioner has filed a reply, by counsel Duane C. Rosenlieb Jr. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In January of 2011, petitioner was indicted by a Wetzel County Grand Jury on one count 

of child abuse resulting in serious bodily injury and one count of malicious assault. These charges 

arose from an incident in February of 2010 during which petitioner’s infant child had to be air 

lifted to Ruby Memorial Hospital in Morgantown, West Virginia, because of a head injury that 

left the child unable to breath. Prior to trial, venue was changed to Marshall County after the 

circuit court was unable to seat a jury in Wetzel County, where the child’s injuries occurred. 

Following a jury trial, petitioner was convicted on both counts and sentenced to two terms of 

incarceration of two to ten years, said sentences to run consecutively. 

On appeal, petitioner alleges that the circuit court abused its discretion in failing to instruct 

the jury on unlawful assault, a lesser included offense of malicious assault. Petitioner argues that 

he was entitled to the unlawful assault instruction because the two crimes are identical, with the 

exception of the element of malice and the State failed to prove malice at trial. Further, petitioner 

argues that the State did not object that his proposed instruction as to unlawful assault was an 

1 In keeping with this Court's policy of protecting the identity of minors, the petitioner in 

this matter will be referred to by his last initial. 

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incorrect statement of law. Petitioner also argues that, on appeal, the State admits that there was 

an evidentiary dispute by stating that petitioner denied committing an intentional act which 

resulted in injury to the child. 

In response, the State argues that petitioner was not entitled to a jury instruction on 

unlawful assault because there was no evidentiary dispute or insufficiency on the elements of 

malicious assault that were different from unlawful assault. According to the State, the circuit 

court was correct to deny petitioner’s request for an instruction on unlawful assault pursuant to 

Syllabus Point 2 of State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982) because of the lack of 

an evidentiary dispute or insufficiency on the elements of malicious assault. The State argues that 

because petitioner denied having intentionally injured the child, he could not have been guilty of 

unlawful assault. 

We have previously held that, 

“[a]s 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. 11, Bailey v. Norfolk and Western Ry. Co., 206 W.Va. 654, 527 S.E.2d 516 (1999). 

Further, we have established 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.” 

Syllabus Point 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982). 

Syl. Pt. 3, State v. Wallace, 175 W.Va. 663, 337 S.E.2d 321 (1985). Upon our review of the 

record, the Court finds no error in the circuit court’s refusal to include an instruction on the lesser 

included offense of unlawful assault. According to West Virginia Code § 61-2-9(a), the crime of 

unlawful assault requires the same element of “intent to maim, disfigure, disable or kill” that is 

required for conviction of malicious assault. The record shows that petitioner denied intentionally 

harming the child, and instead gave a statement to the police that indicated he may have 

accidentally bumped the child’s head. As such, there was no evidentiary dispute or insufficiency 

of the elements of the offense of malicious assault that were different from the elements of 

unlawful assault because petitioner failed to present evidence that he intentionally harmed the 

child without malice. 

For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed. 

Affirmed. 

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ISSUED: April 16, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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