IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_____________________

No. 19-0142

_____________________

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v.

MARK A. WILSON, JR.,

Defendant Below, Petitioner

___________________________________________________________

Appeal from the Circuit Court of Harrison County

Honorable James A. Matish, Judge

Criminal Action No. 18-F-241

AFFIRMED

__________________________________________________________

Submitted: September 2, 2020

Filed: November 6, 2020

Justin M. Collin, Esq.

Appellate Advocacy Division

Public Defender Services

Charleston, West Virginia

Patrick Morrisey, Esq.

Attorney General

Holly M. Flanigan, Esq.

Assistant Attorney General

Charleston, West Virginia

JUSTICE WORKMAN delivered the Opinion of the Court.

FILED

November 6, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “Whether facts are sufficient to justify the delivery of a particular 

instruction is reviewed by this Court under an abuse of discretion standard. In criminal 

cases where a conviction results, the evidence and any reasonable inferences are considered 

in the light most favorable to the prosecution.” Syl. Pt. 12, State v. Derr, 192 W. Va. 165, 

451 S.E.2d 731 (1994). 

2. “A trial court’s refusal to give a requested instruction is reversible 

error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially 

covered in the charge actually given to the jury; and (3) it concerns an important point in 

the trial so that the failure to give it seriously impairs a defendant’s ability to effectively 

present a given defense.” Syl. Pt. 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). 

3. “‘“The plain error doctrine of W. Va. R Crim. P. 52(b), whereby the 

court may take notice of plain errors or defects affecting substantial rights although they 

were not brought to the attention of the court, is to be used sparingly and only in those 

circumstances in which a miscarriage of justice would otherwise result.” Syllabus Point 2, 

State v. Hatala, 176 W. Va. 435, 345 S.E.2d 310 (1986).’ Syl. Pt. 4, State v. Grubbs, 178 

W. Va. 811, 364 S.E.2d 824 (1987).” Syl. Pt. 3, State ex rel. Games-Neely v. Yoder, 237 

W. Va. 301, 787 S.E.2d 572 (2016). 
ii

4. “‘To trigger application of the ‘plain error’ doctrine, there must be (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.’ Syl. Pt. 7, State v. Miller, 

194 W. Va. 3, 459 S.E.2d 114 (1995).” Syl. Pt. 4, State ex rel. Games-Neely v. Yoder, 237 

W. Va. 301, 787 S.E.2d 572 (2016). 

5. “‘“The test of determining whether a particular offense is a lesser 

included offense is that the lesser offense must be such that it is impossible to commit the 

greater offense without first having committed the lesser offense. An offense is not a lesser 

included offense if it requires the inclusion of an element not required in the greater 

offense.” Syl. Pt. 1, State v. Louk, 169 W. Va. 24, 285 S.E.2d 432 (1981), overruled on 

other grounds by State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994).’ Syllabus Point

4, State v. Wilkerson, 230 W. Va. 366, 738 S.E.2d 32 (2013).” Syl. Pt. 5, State v. Bland, 

239 W. Va. 463, 801 S.E.2d 478 (2017).

6. “Where 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.” Syl. Pt. 

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

 7. The misdemeanor offense set forth in West Virginia Code § 61-5-17(e) 

(2014) is a lesser included offense of the felony offense set forth in West Virginia Code § 

61-5-17(f) (2014).
1

WORKMAN, Justice:

Following his conviction in the Circuit Court of Harrison County, West Virginia, 

on a felony charge of fleeing from a law enforcement officer in a vehicle, while operating 

said vehicle “in a manner showing a reckless indifference to the safety of others[,]” West 

Virginia Code § 61-5-17(f) (2014),1 petitioner Mark A. Wilson, Jr. (“Petitioner”) seeks 

reversal based on two alleged errors: the trial court’s giving of an instruction that evidence 

of flight may be considered by the jury, along with other facts and circumstances, to show 

consciousness of guilt; and the court’s failure to instruct the jury on a lesser included 

offense of fleeing in a vehicle but without reckless indifference, West Virginia Code § 61-

5-17(e) (2014).2

 

 After careful consideration of the parties’ briefs and oral arguments, the 

appendix record, and the applicable law, we reject Petitioner’s arguments and affirm his 

conviction. 

1 Although portions of West Virginia Code § 61-5-17 have recently been amended, 

see Acts 2019, c. 73, and Acts 2020, c. 82, subsection (f) remains unchanged. 

2 See supra note 1; subsection (e) of the statute also remains unchanged. 
2

I. Facts and Procedural Background

 On October 8, 2017, Trooper R.W. Jones observed Petitioner driving a pickup 

truck south on I-79, just north of the 125 mile marker, in Harrison County, West Virginia. 

Noting that the vehicle had a Department of Highways (“DOH”) license plate, which 

Trooper Jones considered to be “very odd” in light of the vehicle’s age and appearance,3

he pulled alongside the truck, whereupon Petitioner pulled the hood of his sweatshirt over 

his head. Trooper Jones dropped back and ran the vehicle’s plates through Dispatch, which

reported that there was no record of them.4

 At this point, Trooper Jones activated his lights 

to stop the truck. 

 Rather than stop, Petitioner exited the interstate, turned at a stop sign, and 

took off at high speed going north on Route 73, whereupon the trooper activated his siren 

and dash camera and gave chase. The entire twenty minute pursuit was captured on the 

dash camera, see text infra, and showed Petitioner driving seventy miles an hour on roads 

with speed limits of forty-five or fifty-five; making sudden turns onto different roads, and 

then back around again, in an obvious attempt to evade pursuit; driving left of center on 

multiple occasions; passing in blind turns; almost colliding head-first with a street sweeper; 

“blowing through” stop signs; careening “[t]hrough multiple fences and over – through a 

3 Petitioner’s vehicle was old and multicolored, whereas DOH vehicles, Trooper 

Jones explained to the jury, are usually no more than a few years old and almost always 

white with a state seal emblazoned on the side. 

4 At trial, Trooper Jones testified that the plates had expired in 1991.
3

ridge, through a creek, over a creek”; driving through yards; and blasting through fences

and gates. Multiple law enforcement officers were involved in the pursuit by the time of 

its inglorious end: after multiple attempts to evade his pursuers, Petitioner finally rammed 

through a wire fence, drove down into a ravine and back up into a field (thankfully missing 

some horses), abandoned his vehicle, and escaped on foot, dropping his wallet, 

identification, and mail as he fled. 

 Petitioner apparently decided that his best course of action was to part forever 

with the badly damaged and now-abandoned truck. Accordingly, several days after the 

chase, he reported to the State Police Detachment in Fairmont to remove the vehicle from 

the sex offender registry.5 The trooper who was updating the registry recognized the 

vehicle as the truck which had been involved in the earlier pursuit; accordingly, he 

contacted Trooper Jones, who came to the Detachment and attempted to interview 

Petitioner. Although Petitioner declined to be interviewed, he made a number of 

incriminating statements as Trooper Jones escorted him from the Detachment: he asked 

whether everything would go away if his father paid for any damages, and he informed 

Trooper Jones that the DOH plate on the truck was not stolen, but rather had been found 

5 Petitioner was a registered sex offender who had previously been convicted on 

four felony counts of sexual abuse by a parent, guardian, custodian, or person in a position 

of trust to a child, West Virginia Code § 61-8D-5 (2020). 
4

on a vehicle parked behind his father’s house.6

 While Petitioner was at the Detachment, 

Trooper Jones observed that he had a black eye and was “covered from head to toe, hands, 

face and everything with scratches and scrapes as though he just ran through the woods or 

some briars.” The significance of this observation became apparent at trial, when the 

trooper testified that the field in which Petitioner had abandoned his truck was covered in 

brush and briars. 

 On September 5, 2018, Petitioner was indicted on three charges: fleeing from 

law enforcement in a vehicle, with reckless indifference to the safety of others; felony 

destruction of property; and misdemeanor destruction of property. Prior to trial, the circuit 

court dismissed both destruction of property charges without prejudice. 

 At trial, which was held on November 13, 2018, Petitioner’s strategy was to 

admit the flight in a vehicle but dispute that he had reckless indifference to the safety of 

others. In this regard, defense counsel told the jury in opening statement that on the dash

camera video, “there are instances where you can see Mr. Wilson uses his blinker, slows 

down when there’s traffic coming in the other direction. He’s putting himself in danger, 

not others. He moves off well-traveled roads, down one-lane roads.” (Emphasis added.) 

In his cross-examination of Trooper Jones, the only witness at trial, counsel established 

6 During pre-trial proceedings, the circuit court denied Petitioner’s motion to 

suppress these statements, finding that the utterances had been voluntarily made. Petitioner 

has not challenged this ruling on appeal. 
5

that Petitioner exited the interstate almost immediately after the chase began; that there was 

only light traffic on the roads during the chase; that Petitioner attempted to, and did, 

manage to avoid a collision with the street sweeper; and that the chase had been authorized 

by Dispatch because conditions at the time – light traffic, no inclement weather, no 

untoward road conditions – presented minimal danger to Petitioner, the trooper, and the 

public. Finally, in closing argument defense counsel drove his point home: “Was he driving 

recklessly? Yes. Was he driving with a reckless indifference? No.” 

 Prior to submission of the case to the jury, the circuit court held a charge 

conference to consider the parties’ proposed instructions. Of relevance to the instant 

appeal, the court gave State’s Instruction No. 6, dealing with “evidence of flight,” and 

refused to give an instruction on the lesser included offense of fleeing in a vehicle but 

without reckless indifference. The circumstances surrounding the court’s rulings will be 

set out in detail, infra, in our analysis of the issues raised by Petitioner. Having been 

charged by the court and having heard the argument of counsel, the jury withdrew to 

deliberate, and soon thereafter returned a verdict of guilty.

 On January 19, 2019, Petitioner was sentenced to an indeterminate term of 

one to five years in prison, with credit for fifty-nine days of time served, fined $1,000.00 

plus the costs of the proceedings, and ordered to pay restitution for the property damage 

resulting from his wild ride. This appeal followed. 
6

II. Standard of Review

Petitioner raises two issues in this case, both having to do with the circuit 

court’s charge to the jury. First, Petitioner contends that the court’s giving of a flight 

instruction was erroneous and prejudicial; second, he contends that the court’s failure to 

instruct the jury on a lesser included offense was likewise erroneous and prejudicial. With 

respect to the first issue, our standard of review was established in Syl. Pt. 12, State v. Derr, 

192 W. Va. 165, 451 S.E.2d 731 (1994): “Whether facts are sufficient to justify the delivery 

of a particular instruction is reviewed by this Court under an abuse of discretion standard. 

In criminal cases where a conviction results, the evidence and any reasonable inferences 

are considered in the light most favorable to the prosecution.” 

 With respect to the second issue, our standard of review would ordinarily be 

that set forth in syllabus point 11 of Derr:

A trial court’s refusal to give a requested instruction is 

reversible error only if: (1) the instruction is a correct statement 

of the law; (2) it is not substantially covered in the charge 

actually given to the jury; and (3) it concerns an important 

point in the trial so that the failure to give it seriously impairs 

a defendant's ability to effectively present a given defense. 

Id. at 168, 451 S.E.2d at 734. Here, however, because the issue was not properly preserved 

for appellate review pursuant to Rule 30 of the West Virginia Rules of Criminal 
7

Procedure,7 we review the matter under the plain error doctrine. In this regard, we have 

held that 

“‘“[t]he plain error doctrine of W. Va. R Crim. P. 52(b),8

whereby the court may take notice of plain errors or defects 

affecting substantial rights although they were not brought to 

the attention of the court, is to be used sparingly and only in 

those circumstances in which a miscarriage of justice would 

otherwise result.” Syllabus Point 2, State v. Hatala, 176 W. Va. 

435, 345 S.E.2d 310 (1986).’ Syl. Pt. 4, State v. Grubbs, 178 

W. Va. 811, 364 S.E.2d 824 (1987).” 

Syl. Pt. 3, State ex rel. Games-Neely v. Yoder, 237 W. Va. 301, 787 S.E.2d 572 (2016)

(footnote added). It is well established in this Court’s jurisprudence that “‘[t]o trigger 

application of the ‘plain error’ doctrine, there must be (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.’ Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 

114 (1995).” Syl. Pt. 4, Games-Neely, 237 W. Va. at 302, 787 S.E.2d at 573. 

III. Discussion

7 Rule 30 provides, in relevant part, that 

[n]o party may assign as error the giving or the refusal to give 

an instruction or the giving of any portion of the charge unless 

that party objects thereto before the arguments to the jury are 

begun, stating distinctly the matter to which that party objects 

and the grounds of the objection[.] 

8 Subsection (b) of Rule 52(b) provides: “Plain error. -- Plain errors or defects 

affecting substantial rights may be noticed although they were not brought to the attention 

of the court.” 
8

 We first address Petitioner’s contention that the circuit court erred in giving 

State’s Instruction No. 6, which provided:

The Court instructs the jury that evidence of flight by 

the defendant is competent, along with other facts and 

circumstances on the defendant’s guilt, but the jury should 

consider any evidence of flight with caution since such 

evidence has only a slight tendency to prove guilt.

The jury is further instructed that the farther away the 

flight is from the time of the alleged commission of the offense 

the less weight it will be entitled to, and the circumstances 

should be cautiously considered since flight may be attributed 

to a number of reasons other than consciousness of guilt.

In his brief, Petitioner states that he “objected to the flight instruction because the 

indictment charged fleeing.” A review of the record indicates that this statement, while

correct, is somewhat misleading in its brevity. The colloquy which took place during the 

charge conference demonstrates that counsel’s objection to the instruction fell short of the 

standard established in Rule 30 of the West Virginia Rules of Criminal Procedure, see

supra note 5. Further, the colloquy clearly demonstrates that the instruction related to 

Petitioner’s flight on foot after he abandoned the vehicle, not his madcap journey across 

and through highways, roads, ravines, yards and fences. 

THE COURT: State’s 6?

MR. JONES: I would object to State’s 6, Your Honor. 

I don’t know that that’s a necessary instruction in this case.

THE COURT: Mr. Houchin?

MR. HOUCHIN: I mean, the State thinks it’s an 

appropriate instruction given the evidence that was presented, 

but. The officer testified he identified the defendant as the 
9

individual in the truck and when he got to the truck, the 

individual had left the truck.

THE COURT: It’ll be given. Yes, sir?

MR. JONES: I was just going to say that talking – there 

was no notice or hearing that he intended to use that evidence 

of flight after the fact. 

THE COURT: There was no request made for an in 

camera hearing from either the State or the defendant in this 

case, so we didn’t conduct one.

MR. JONES: Correct.

THE COURT: Yeah. There was no request made.

MR. JONES: Well, I mean, I guess my issue is just the 

instruction – I mean, the charge is fleeing. And while there 

was testimony that there was –

MR. HOUCHIN: The State will just move to withdraw 

the instruction. I don’t want to overburden the jurors anyway.

THE COURT: Well, I don’t know that it’s something 

that can be withdrawn. I think it’s something that should be 

given. It’s a defendant’s instruction, really.

MR. HOUCHIN: Yeah. I mean I just submitted it on 

behalf of the State to try to be thorough, but I’m certainly not 

in a position to advocate for it. The State doesn’t really care.

THE COURT: Well, you may care if the Supreme 

Court looks at it and says it should’ve been given. The Court 

will give that instruction. 

(Emphasis added.)

 On appeal, Petitioner makes a far more comprehensive argument than he 

made during the colloquy, which argument consisted of four words: “the charge is 
10

fleeing.”9 First, Petitioner contends that the charge against him, which he designates 

simply as “flight,” encompassed both his vehicular flight and his subsequent escape by 

foot. We may quickly dispose of this argument with a review of the statute under which 

Petitioner was indicted, West Virginia Code § 61-5-17(f), which provides:

A person who intentionally flees or attempts to flee in a 

vehicle from a law-enforcement officer, probation officer, or 

parole officer acting in his or her official capacity after the 

officer has given a clear visual or audible signal directing the 

person to stop, and who operates the vehicle in a manner 

showing a reckless indifference to the safety of others, is guilty 

of a felony and, upon conviction thereof, shall be fined not less 

than $1,000 nor more than $2,000 and shall be imprisoned in a 

state correctional facility not less than one nor more than five 

years.

 Under the clear and unambiguous terms of the statute, the crime charged 

wasn’t simply “flight,” Petitioner’s carefully elided formulation of the offense; rather, it 

was flight in a vehicle and operation of that vehicle in a manner showing reckless 

indifference to the safety of others. In short, once Petitioner exited and abandoned his 

vehicle, the charged crime was complete. Thereafter, Petitioner’s escape on foot was a 

9 On appeal, Petitioner does not contend that he was entitled to a pre-trial hearing 

on the issue. In this regard see State v. Criser, No. 17-0997, 2018 WL 6015835, at *4 

(W. Va. Nov. 16, 2018) (memorandum decision):

On appeal, petitioner argues that the evidence of flight should 

have been excluded because the circuit court failed to hold a 

hearing on whether the evidence was more probative than 

prejudicial. However, the record on appeal does not reveal, nor 

does petitioner claim, that he requested any such hearing either 

prior to trial or when the officers testified. 
11

separate act10 which took place after the charged conduct, bringing it within the ambit of 

our many cases holding that evidence of flight after the commission of a crime is admissible 

as evidence of the crime. See State v. Payne, 167 W. Va. 252, 265 & n.2, 280 S.E.2d 72, 

79-80 & n.2 (1981) (“That evidence of flight is admissible upon a criminal trial is an almost 

universal rule.”) (collecting numerous cases from federal and state jurisdictions).

 Next, Petitioner argues that the instruction was an impermissible comment on 

the evidence, specifically, that the instruction “told the jury that the latter stage of 

Petitioner’s flight could be used as evidence of his guilty conscious [sic] regarding the 

earlier stage of his flight.” Again, this argument ignores the substance of the charge against 

Petitioner, which was flight in a vehicle from a law enforcement officer. As before, once 

Petitioner had exited and abandoned the vehicle, the charged crime was complete; 

therefore, evidence of his escape on foot after commission of the crime was properly used 

as evidence of the crime, fleeing in a vehicle from law enforcement. 

10 In fact, Petitioner’s flight on foot could have been charged as a separate offense 

under West Virginia Code § 61-5-17(d) (2014), which provided, in relevant part, that

[a] person who intentionally flees or attempts to flee by any 

means other than the use of a vehicle from a law-enforcement 

officer, probation officer or parole officer acting in his or her 

official capacity who is attempting to make a lawful arrest of 

the person, and who knows or reasonably believes that the 

officer is attempting to arrest him or her, is guilty of a 

misdemeanor[.]

In this regard, we note that the Legislature’s subsequent amendments to subsection (d), 

Acts 2019, c. 73, effective June 7, 2019, are not material to the instant case. 
12

 Additionally, Petitioner argues that other jurisdictions have held that “[w]hen 

the basis of a crime with which a person is charged is flight . . . the prejudice of the trial 

court’s pointing out evidence of flight is obvious[,]” citing State v. Girard, 578 P.2d 414, 

417-18 (Ore. 1978) and Graves v. Commonwealth, 780 S.E.2d 904, 908 (Va. 2016). Both 

of these cases are easily distinguishable from the case at bar. The charge in Girard was 

escape from a law enforcement officer, and therefore every step of the defendant’s 

attempted escape – from running out the door to climbing out the window to heading down 

the street – was part and parcel of the escape. Similarly, the charge in Graves was eluding 

a law enforcement officer, and every step of the defendant’s attempt to avoid capture – he 

led the officer on a high speed chase until he was finally pulled over and arrested – was, 

again, part and parcel of the attempt to elude. In contrast, here the charge was flight in a 

vehicle, a crime that was complete when Petitioner abandoned his truck and fled on foot. 

Petitioner cites no other authority from any jurisdiction that supports his position on facts 

similar to those in the case at bar, and our research has disclosed none.

 Finally, Petitioner argues that giving a flight instruction in this case was 

reversible error because the instruction failed to specifically state that it concerned 

Petitioner’s flight on foot, not his earlier flight in a vehicle. We disagree. During the 

charge conference, it was clear that all parties understood the instruction to refer to what 

defense counsel termed “evidence of flight after the fact.” Trooper Jones’ testimony (as 

noted previously, the only evidence at trial) clearly delineated between Petitioner’s conduct 
13

in leading the officer on a dangerous, high-speed chase, and his subsequent conduct in

abandoning his vehicle and fleeing on foot. Under the facts and circumstances of this case, 

which we consider in the light most favorable to the prosecution,11 the jury could not have 

been misled as to the meaning of the circuit court’s flight instruction. 

In summary, we find that the instruction was a correct statement of longestablished law and was properly given under the facts and circumstances of this case. 

Accordingly, there was no error. 

 Petitioner’s second argument on appeal is that “[t]he trial court denied 

Petitioner’s motion to instruct the jury on fleeing in a vehicle as a lesser included offense.” 

Petitioner did not indicate where in the Appendix Record this alleged motion could be 

found, as required by Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure,12

thereby asking this Court to undertake the task of hunting for truffles, in the oft-cited

language of State v. Honaker, 193 W. Va. 51, 454 S.E.2d 96 (1994).

13 Our review of the 

11 See, e.g., Syl. Pt. 3, in part, State v. Bradford, 199 W. Va. 338, 484 S.E.2d 221 

(1997) (“where a conviction results, the evidence and any reasonable inferences are 

considered in the light most favorable to the prosecution.”). 

12 Rule 10(c)(7) provides, in relevant part, that “[t]he argument must contain 

appropriate and specific citations to the record on appeal, including citations that pinpoint 

when and how the issues in the assignments of error were presented to the lower tribunal.” 

13 “[C]ounsel must observe the admonition of the Fourth Circuit that ‘[j]udges are 

not like pigs, hunting for truffles buried in briefs’ [or somewhere in the lower court’s 
14

record indicates that contrary to the representation made in Petitioner’s brief, there was no 

motion, written or oral, asking the circuit court to give an instruction on a lesser included 

offense; and indeed, there was no such instruction offered by Petitioner. 

 The entirety of the discussion on this issue came at the conclusion of the 

charge conference.

THE COURT: Okay. Is there anything else we need to 

put on the record before we show the jury back in?

MR. HOUCHIN: I don’t think so, Judge.

THE COURT: You can talk to your lawyer. Is there a 

lesser included offense?

MR. HOUCHIN: I don’t believe there could – I mean, 

you might be able to fashion one if there was some other kind 

of evidence offered, Judge. I don’t know of any lesser included 

with the evidence that was offered that could be given.

THE COURT: Mr. Jones?

MR. JONES: I mean it’s just a – would be a regular 

fleeing without reckless indifference to others.

THE COURT: There would be a lesser included if there 

was a factual basis for it, but there’s no factual basis for a lesser 

included based upon the evidence that’s presented to the Court, 

so the Court’s not giving any type of lesser included instruction 

in this case. 

files].... We would in general admonish all counsel that they, as officers of this Court, have 

a duty to uphold faithfully the rules of this Court.” Honaker, 193 W. Va. at 56 n. 4, 454 

S.E.2d at 101 n. 4 (quoting Teague v. Bakker, 35 F.3d 978, 985 n. 5 (4th Cir. 1994)). 
15

Reviewing this brief colloquy, it is clear to this Court that the circuit court 

raised the issue of a lesser included offense sua sponte. Petitioner did not make a motion, 

did not offer an instruction, did not offer any statutory citation for a lesser included 

offense,14 made only the vaguest of replies to the court’s query about a lesser included 

offense instruction, did not object to the court’s determination that no instruction would be 

given to the jury, and did not raise the issue in his post-trial motion to set aside the verdict 

or, in the alternative, grant a new trial. Accordingly, 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. Va. at 302, 787 S.E.2d at 

573, Syl. Pt. 4, in part.

 We begin by determining whether there is, in fact, a lesser included offense 

to the offense charged in West Virginia Code § 61-5-17(f). In this regard, it is well 

established in our law that,

[t]he test of determining whether a particular offense is a lesser 

included offense is that the lesser offense must be such that it 

is impossible to commit the greater offense without first having 

committed the lesser offense. An offense is not a lesser 

included offense if it requires the inclusion of an element not 

required in the greater offense. 

14 In his brief on appeal, Petitioner alleges that the lesser included offense would be 

that set forth in West Virginia Code § 61-5-17(e). See text infra. 
16

Syl. Pt. 5, State v. Bland, 239 W. Va. 463, 801 S.E.2d 478 (2017) (citing Syl. Pt. 1, State 

v. Louk, 169 W. Va. 24, 285 S.E.2d 432 (1981), overruled on other grounds by State v. 

Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994), and Syl. Pt. 4, State v. Wilkerson, 230 W. 

Va. 366, 738 S.E.2d 32 (2013)). Put another way, “all the legal ingredients of the corpus 

delicti of the lesser offense must be included in the elements of the greater offense.” Bland, 

239 W. Va. at 468, 801 S.E.2d at 483 (citing Syl. Pt. 5, State v. Vance, 168 W. Va. 666, 

285 S.E.2d 437 (1981)). 

 With this standard in mind, we examine West Virginia Code § 61-5-17(e), 

which provides:

A person who intentionally flees or attempts to flee in a vehicle 

from a law enforcement officer, probation officer, or parole 

officer acting in his or her official capacity after the officer has 

given a clear visual or audible signal directing the person to 

stop is guilty of a misdemeanor and, upon conviction thereof, 

shall be fined not less than $500 nor more than $1,000 and shall 

be confined in jail not more than one year. 

It requires no complex exegesis to determine that here, “it is impossible to commit the 

greater offense without first having committed the lesser offense,” Bland, 239 W. Va. at 

464, 801 S.E.2d at 480, Syl. Pt. 4; see also Wilkerson, 230 W. Va. at 738 S.E.3d at 369

(“The first inquiry is a legal one having to do with whether the lesser offense is by virtue 

of its legal elements or definition included in the greater offense.”). The language of West 

Virginia Code § 61-5-17(e) describing the offense of flight from law enforcement in a 

vehicle, is exactly the same as the language of West Virginia Code § 61-5-17(f) describing 

the first element of the offense of flight from law enforcement in a vehicle while operating 
17

said vehicle in a manner showing reckless indifference to the safety of others. Therefore,

we hold that the misdemeanor offense set forth in West Virginia Code § 61-5-17(e) (2014)

is a lesser included offense of the felony offense set forth in West Virginia Code § 61-5-

17(f) (2014).

 Having established that there is a lesser included offense to the crime set forth 

in West Virginia Code § 61-5-17(f), we must now determine whether the circuit court’s 

failure to give a lesser included offense instruction to the jury was error. The circuit court 

based its decision, albeit tacitly, on the principle set forth in syllabus point two of State v. 

Neider, 170 W. Va. 662, 295 S.E.2d 902 (1982), wherein this Court held 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.” Id. at 663, 295 S.E.3d at 903. In this 

regard, the circuit court’s remarks to counsel indicate that the court considered the evidence 

of reckless disregard for the safety of others to be undisputed.

 A review of Trooper Jones’ testimony reveals that the court’s assessment was 

not accurate. The trooper testified, and the dash camera video showed, that almost 

immediately after the chase began, Petitioner exited I-79 and thereafter proceeded on 

secondary roads and streets having minimal traffic; that at some point he used a turn signal; 

and that he did manage to avoid what appeared to be an imminent collision with a street 

sweeper. Further, the trooper testified that the chase would have been called off if the 
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conditions existing at the time – traffic, weather, and/or dangerous road conditions –

presented more than minimal danger to Petitioner, Trooper Jones, or the public. This 

evidence, albeit not strong, supported Petitioner’s defense and his trial strategy, which was 

to admit the flight but deny that he acted with reckless indifference to the safety of others. 

We therefore conclude that under the facts and circumstances of this case, the circuit 

court’s refusal to give a lesser included offense instruction was error. See, e.g., State v. 

Stalnaker, 167 W. Va. 225, 227, 279 S.E.2d 416, 417 (1981) (holding that “a trial court 

must give an instruction for a lesser included offense when evidence has been produced to 

support such verdict.”).

 Notwithstanding the above, it will be recalled that we are reviewing this issue 

under a plain error standard, which requires not only that there is (1) an error, (2) that is 

plain, but also that the error (3) affects substantial rights, and (4) seriously affects the 

fairness, integrity, or public reputation of the judicial proceeding. Games-Neely, 237 W. 

Va. at 302, 787 S.E.2d at 573, Syl. Pt. 4, in part. In this case, the circuit court’s failure to 

instruct on the lesser included offense fails both of the final two prongs of the test. First, 

defense counsel was not prevented from effectively presenting Petitioner’s defense,

beginning with his opening statement, continuing with his effective cross examination of 

Trooper Jones, and concluding with his closing argument. See Bell, 211 W. Va. at 311, 

565 S.E.2d at 433; Derr, 192 W. Va. at 168, 452 S.E.2d at 734. By the time the jury had 

retired to deliberate, the panel necessarily understood the view of the evidence put forward 

by counsel: that Petitioner had been foolish and stupid but had not evidenced reckless 
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indifference to the safety of others – only to himself. Second, the very fact that Petitioner 

did not offer a lesser included offense instruction at trial, and did not even mention this 

issue in his post-trial motions, supports a conclusion that the supposed prejudice to 

Petitioner from the omission of the instruction is solely a creation of appellate counsel, 

attempting to breathe life into a long-dead horse. Third, and most significantly, the 

evidence against Petitioner on all elements of the offense, including the element of reckless 

indifference, was overwhelming. In light of Trooper Jones’ testimony, supported by the 

dash camera video of the entire wild chase from Harrison County to Taylor County and 

back to Harrison County, this Court has no trouble in finding that the circuit court’s error 

would not have swayed the verdict and was therefore harmless beyond a reasonable doubt. 

See, e.g., State v. Reed, 218 W. Va. 586, 590, 625 S.E.2d 348, 352 (2005) (“[o]ur cases 

consistently have held that nonconstitutional errors are harmless unless the reviewing court 

has grave doubt as to whether the [error] substantially swayed the verdict.”). 

 In summary, we conclude that the circuit court’s refusal to instruct the jury 

on a lesser included offense was error; however, the error did not in any way affect 

Petitioner’s substantial rights or seriously affect the fairness, integrity, or public reputation 

of the judicial proceeding, and was therefore not reversible error under the applicable 

standard of review. 
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IV. Conclusion

For the foregoing reasons, the judgment of the Circuit Court of Harrison County, 

West Virginia, is affirmed. 

 Affirmed.