IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2013 Term 

No. 11-1123
 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v.
 

JAMES WILKERSON,
 

Defendant Below, Petitioner
 

FILED
 

February 21, 2013
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Ohio County
 

Honorable Arthur M. Recht, Judge
 

Criminal Action No. 09-F-10
 

AFFIRMED
 

Submitted: January 15, 2013 

Filed: February 21, 2013 

Peter P. Kurelac, III, Esq. Patrick Morrisey, Esq. 

Kurelac Law Offices, PLLC Attorney General 

Moundsville, West Virginia Benjamin F. Yancey, III, Esq. 

Attorney for Petitioner Assistant Attorney General 

Charleston, West Virginia 

Attorneys for Respondent 

JUSTICE LOUGHRY delivered the Opinion of the Court.
 

CHIEF JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘As 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. 1, State v. Shingleton, 222 W.Va. 647, 671 

S.E.2d 478 (2008). 

2. “‘A trial court’s refusal to give a requested instruction is reversible 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.’ Syllabus point 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).” Syl. Pt. 

3, State v. Blankenship, 208 W.Va. 612, 542 S.E.2d 433 (2000). 

3. “The question of whether a defendant is entitled to an instruction on a 

lesser included offense involves a two-part inquiry. 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 second inquiry is a factual one which involves a determination 

by the trial court of whether there is evidence which would tend to prove such lesser included 

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offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).” Syl. Pt. 1, State v. Jones, 

174 W.Va. 700, 329 S.E.2d 65 (1985). 

4. “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). 

5. “Before a lesser offense can be said to contribute a necessary part of a 

greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be 

included in the elements of the greater offense. If an element necessary to establish the 

corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser 

cannot be held to be a necessarily included offense.” Syl. Pt. 5, State v. Vance, 168 W.Va. 

666, 285 S.E.2d 437 (1981). 

6. Battery as defined by West Virginia Code § 61-2-9(c) (2010) is not a 

lesser included offense of robbery in the first degree. 

ii 
 

 

7. Misdemeanor assault as defined by West Virginia Code § 61-2-9(b) 

(2010) is not a lesser included offense of robbery in the first degree. 

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LOUGHRY, Justice: 

The petitioner and defendant below, James Wilkerson (hereinafter 

“petitioner”), appeals the July 6, 2011, order of the Circuit Court of Ohio County sentencing 

him to a total of eighty years in the West Virginia Penitentiary for his conviction of two 

counts of robbery in the first degree.1 The petitioner was also sentenced to a term of not less 

than two nor more than ten years for his conviction of assault during the commission of a 

felony and sentenced to a term of not less than one nor more than five years for his 

conviction of conspiracy to commit the felony offense of robbery in the first degree. These 

latter two sentences were ordered to be served concurrent to each other and concurrent to the 

eighty-year sentence. In this appeal, the petitioner contends that the circuit court committed 

reversible error by refusing to give the jury an instruction for misdemeanor assault and/or an 

instruction for battery as lesser included offense(s) to the charge of robbery in the first 

degree. Upon consideration of the parties’ briefs and oral arguments and the submitted 

record, the final order of the circuit court is affirmed. 

1

The court imposed a forty-year determinate term for each count of robbery in the first 

degree and ordered that the sentences be served consecutively. 

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I. FACTUAL AND PROCEDURAL BACKGROUND
 

The petitioner’s convictions arise out of events that occurred on the evening 

of November 14, 2008, at a public playground in Wheeling, West Virginia. At the 

petitioner’s trial, conflicting testimony was given regarding what actually occurred on that 

night. According to the petitioner, he and his codefendant, Brandon Myers (hereinafter 

“codefendant”),2 went to the parking lot of a beauty salon located across the street from a 

public playground for the purpose of skateboarding. While the petitioner and codefendant 

were skateboarding with a couple of other individuals, the two victims, Stephen Surgent and 

David Wood (hereinafter referred to individually as “Stephen” and “David” or jointly as “the 

victims”), were walking down the street. The victims were walking toward David’s house 

located nearby after going to a convenience store. The victims testified that as they came 

down the street, they observed a group of people in the parking lot of the salon. The people 

were rowdy and appeared to be intoxicated so they crossed the street to avoid them and began 

walking through the playground. 

According to the petitioner, the codefendant saw the victims and asked the 

petitioner to follow him to the playground. The petitioner testified that the codefendant did 

not give him a reason for going to the playground. According to the victims, as they entered 

the playground, the petitioner and codefendant confronted them. The codefendant asked 

2

The petitioner and codefendant were tried separately. See note 3, infra. 

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Steven, “Where’s the weed at?” Both victims replied that they did not have any weed. The 

codefendant testified at the petitioner’s trial that he believed that one of his friends had 

“fronted” Stephen marijuana and Stephen had never paid for it. After the victims indicated 

that they did not have any weed, Stephen testified that the codefendant then asked, “Where’s 

the money?” He replied that they did not have any money. The codefendant testified that 

he became angry after the victims said that they did not have any weed and that he punched 

Stephen and then hit him several more times. Stephen testified that the petitioner actually 

hit David first and then the codefendant began punching him. David testified that he was hit 

multiple times. The codefendant admitted that he hit David once. The codefendant further 

testified that he did not intend to rob either of the alleged victims, but to collect a debt that 

was owed. The codefendant maintained during his testimony that the petitioner did not hit 

either victim.3 The State, however, presented testimony from three eyewitnesses, other than 

the victims, who stated that both the petitioner and codefendant attacked and hit the victims. 

Stephen testified that he gave his wallet to the codefendant and that the 

codefendant continued to kick him and demand money. David offered his cell phone to the 

3

The codefendant was tried separately in 2009. Prior to the conclusion of his trial, he 

made a plea agreement with the State and pled guilty to two counts of second degree robbery. 

In exchange, the State dropped the remaining charges in the indictment. Subsequently, the 

codefendant was sentenced to two consecutive terms of five to eighteen years in the 

penitentiary. Thus, the codefendant was alreadyserving his prison sentence when he testified 

at the petitioner’s trial. 

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petitioner and codefendant during the attack. Stephen said that the codefendant then asked 

how old he was and when he said he was thirteen, the attack stopped.4 The petitioner and 

codefendant left the victims on the ground, retrieved their skateboards and ran back to their 

residence,5 which was approximately two blocks away. During the police investigation that 

followed, a cell phone and wallet containing money were found on the ground in the park 

where the offenses occurred. 

Both victims were beaten unconscious and suffered significant injuries. 

Stephen testified that he woke up on the ground and David was still unconscious. He went 

to David’s house for help and David’s mother called the police. Eventually, David made it 

back to his house as well. The victims then went to the hospital. Stephen had a severely 

broken nose that required plastic/reconstructive surgery. David suffered a concussion and 

required stitches in his mouth making it difficult for him to eat for a period of time. Both 

victims testified that they continue to be affected emotionally by the attack. 

4

When the events at issue occurred, Stephen and David were thirteen years old. The 

petitioner was twenty and the codefendant was eighteen. 

5

The petitioner and codefendant were roommates. 

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On January 12, 2009, the petitioner was indicted on two counts of robbery in 

the first degree,6 two counts of assault during the commission of a felony and one count of 

conspiracy to commit first degree robbery. The codefendant was indicted on these same 

charges. The petitioner’s trial began on April 18, 2011, and ended on April 19, 2011. As 

noted above, the jury convicted him of two counts of first degree robbery, one count of 

assault during the commission of a felony, and one count of conspiracy to commit first 

degree robbery. The petitioner was acquitted of one count of assault during the commission 

of a felony. Following his sentencing, the petitioner filed this appeal. 

II. STANDARD OF REVIEW 

“‘As 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. 1, State v. Shingleton, 222 W.Va. 647, 671 

S.E.2d 478 (2008). This Court has also held: 

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

reversible 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 

6

Pursuant to West Virginia Code § 61-2-12(a) (2010), as set forth infra, the penalty 

for robbery in the first degree or the attempt thereof is the same. 

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ability to effectively present a given defense.” Syllabus point 

11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). 

Syl. Pt. 3, State v. Blankenship, 208 W.Va. 612, 542 S.E.2d 433 (2000). With these 

standards in mind, the parties’ arguments will be considered. 

III. DISCUSSION 

The petitioner’s sole assignment of error in this case is the trial court’s refusal 

to instruct the members of the jury that they could find him guilty of misdemeanor assault 

and/or battery as lesser included offense(s) of robbery in the first degree. Pursuant to 

syllabus point one of State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985), 

The question of whether a defendant is entitled to an 

instruction on a lesser included offense involves a two-part 

inquiry. 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 second inquiry 

is a factual one which involves a determination by the trial court 

of whether there is evidence which would tend to prove such 

lesser included offense. State v. Neider, 170 W.Va. 662, 295 

S.E.2d 902 (1982). 

With regard to the first inquiry, this Court has held: 

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. 

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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). In other words, 

[b]efore a lesser offense can be said to contribute a necessary 

part of a greater offense, all the legal ingredients of the corpus 

delicti of the lesser offense must be included in the elements of 

the greater offense. If an element necessary to establish the 

corpus delicti of the lesser offense is irrelevant to the proof of 

the greater offense, the lesser cannot be held to be a necessarily 

included offense. 

Syl. Pt. 5, State v. Vance, 168 W.Va. 666, 285 S.E.2d 437 (1981). As for the second inquiry 

required by syllabus point one of Jones, this Court has held that “[w]here there is no 

evidentiarydispute 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). 

In this case, the petitioner first contends that assault and/or battery are lesser 

included offense(s) of robbery in the first degree. More specifically, the petitioner argues 

that battery is a lesser included offense of first degree robbery where there is some kind of 

actual force used in the alleged crime.7 The petitioner points out that the use of violence 

7

In his brief, the petitioner focuses primarily upon the trial court’s failure to give the 

jury a battery instruction. During oral argument, he asserted that an assault instruction was 

warranted as well. The submitted record shows that the petitioner did present separate 

battery and assault instructions to the trial court. 

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against a person is one of the elements of robbery, and he contends that it is the same kind 

of violence that can be used to commit a battery. Noting that there are no West Virginia 

cases addressing this issue, the petitioner urges this Court to follow other jurisdictions that 

have reached the conclusion that battery is a lesser included offense of robbery where there 

is some kind of actual force used in the alleged crime. In particular, the petitioner relies upon 

State v. Hill. 825 P.2d 1141 (Kan. Ct. App. 1991) and State v. Clardy, 847 P.2d 694 (Kan. 

1993), cases in which it was determined that the evidence was sufficient to establish the 

offense of battery, and therefore, a jury instruction on battery as a lesser included offense of 

robbery was required. In both cases, the Kansas courts indicated that a lesser included 

instruction was required8 because the factual allegations in the charging document constituted 

an allegation of a lesser crime and evidence of such offenses was adduced at trial. Hill, 825 

P.2d at 1142; Clardy, 847 P.2d at 696. In other words, the facts proven at trial were 

considered to determine whether a lesser included instruction was proper.9 

Upon review, we decline to adopt the approach advanced by the petitioner and 

utilized by a minority of jurisdictions whereby each case is considered individually to 

8

See note 11, infra. 

9

The State chose not to address this issue in its brief. Acknowledging the split of 

authority with regard to whether assault and/or battery are lesser included offenses of first 

degree robbery, the State focused on the second inquiry under syllabus point one of Jones, 

asserting that given the violent nature of the petitioner’s actions toward the victims, a lesser 

included instruction on assault and/or battery was simply not warranted. 

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determine whether the evidence adduced at trial supports a lesser included instruction.10 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 State v. Noll, 223 W.Va. 

6, 672 S.E.2d 142 (2008) (finding that daytime entering without breaking a dwelling house 

under West Virginia.Code § 61-3-11(b) does not require inclusion of element not required 

in greater offense of daytime burglary by breaking and entering under West Virginia Code 

§ 61-3-11(a) and therefore is lesser included offense); State v. Wade, 200 W.Va. 637, 490 

S.E.2d 724 (1997) (finding that second degree murder and voluntary manslaughter are not 

lesser included offenses of felony-murder because each require element that is not necessary 

for conviction of felony murder); State v. Bradford, 199 W.Va. 338, 484 S.E.2d 221 (1997) 

(concluding that offense of accessory after the fact cannot be lesser included offense of 

murder because to be accessory after the fact one must prove that accused was not present 

when crime was committed which is not element of murder); State v. Hays, 185 W.Va. 664, 

408 S.E.2d 614 (1991) (applying Louk test and concluding that West Virginia Code § 61-3­

39a proscribing issuing a worthless check in order to satisfy preexisting debt is not lesser 

include offense of issuing worthless check to obtain property or thing of value as proscribed 

by West Virginia Code § 61-3-39); State v. Horton, 170 W.Va. 395, 294 S.E.2d 248 (1982) 

(stating that under Louk, unauthorized entry upon lands is not a lesser included offense of 

10The petitioner also cited McFarland v. State, 384 N.E.2d 1104 (Ind. Ct. App. 1979). 

We also find this case unpersuasive. 

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crime of breaking and entering). There is simply no basis for this Court to adopt the factdriven and case-specific test suggested by the petitioner to determine whether an instruction 

on a lesser included offense should be given.11 

We now turn to the offenses at issue in the instant case and apply our strict 

elements test to determine whether misdemeanor assault and/or battery are lesser included 

offenses of robbery in the first degree. West Virginia.Code § 61-2-12(a) (2010) provides, 

in pertinent part: 

Any person who commits or attempts to commit robbery 

by: (1) Committing violence to the person, including, but not 

limited to, partial strangulation or suffocation or by striking or 

beating; or (2) uses the threat of deadly force by the presenting 

of a firearm or other deadly weapon, is guilty of robbery in the 

first degree and, upon conviction thereof, shall be imprisoned in 

a state correctional facility not less than ten years. 

It has been recognized that this statute does not actually define robbery. State v. Harless, 

168 W.Va. 707, 710, 285 S.E.2d 461, 464 (1981); State ex rel. Vandal v. Adams, 145 W.Va. 

566, 569, 115 S.E.2d 489, 490 (1960). Rather, “the elements of robbery, unaffected by the 

statute, are derived from the common law[.]” State v. England, 180 W.Va. 342, 347, 376 

11We note that Kansas has now adopted the strict elements test. See State v. 

McKissack, 156 P.3d 1249, 1254 (Kan. 2007) (explaining that pursuant to a 1998 

amendment, K.S.A.2006 Supp. 21-3107(1),(2) now requires use of strict elements test to 

determine whether defendant may be convicted of either crime charged or lesser included 

offense). 

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S.E.2d 548, 553 (1988). Those elements were summarized in syllabus point one of Harless, 

which states: 

At common law, the definition of robbery was (1) the 

unlawful taking and carrying away, (2) of money or goods, (3) 

from the person of another or in his presence, (4) by force or 

putting him in fear, (5) with intent to steal the money or goods. 

168 W.Va. 707, 285 S.E.2d 462. 

With respect to the offense of misdemeanor assault, West Virginia Code § 61­

2-9(b) (2010) provides: 

Assault.– If any person unlawfully attempts to commit a 

violent injury to the person of another or unlawfully commits an 

act which places another in reasonable apprehension of 

immediately receiving a violent injury, he shall be guilty of a 

misdemeanor and, upon conviction, shall be confined in jail for 

not more than six months, or fined not more than one hundred 

dollars, or both such fine and imprisonment. 

Battery is defined in West Virginia Code § 61-2-9(c) as follows: 

Battery.–If any person unlawfully and intentionally 

makes physical contact of an insulting or provoking nature with 

the person of another or unlawfully and intentionally causes 

physical harm to another person, he shall be guilty of a 

misdemeanor and, upon conviction, shall be confined in jail for 

not more than twelve months, or fined not more than five 

hundred dollars, or both such fine and imprisonment. 

Based on the above, in order for a person to be convicted of battery, there must 

be physical contact with the victim. In other words, an element of battery is actual harm or 

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physical contact. As set forth above, the elements of robbery include “by force or putting 

him in fear.” Harless, 168 W.Va. at 707, 285 S.E.2d at 462, syl. pt. 1, in part (emphasis 

added). The use of the word “or” indicates an alternative choice.12 Thus, a person can 

commit the offense of robbery in the first degree without ever touching the victim. Robbery 

can be perpetrated by simply threatening the use of force. In addition, an element of battery 

is the intent to cause physical harm to another person. The intent to injure, however, is not 

an element of robbery. Rather, robbery requires the specific intent to steal money or goods. 

As such, there are elements necessary to prove battery that are irrelevant to the proof of 

robbery in the first degree. Therefore, the Louk test is not satisfied. Accordingly, we now 

hold that battery as defined by West Virginia Code § 61-2-9(c) is not a lesser included 

offense of robbery in the first degree.13 

Likewise, misdemeanor assault is not a lesser included offense of robbery in 

the first degree. As it is possible to commit robbery in the first degree without force, it is also 

possible to commit robbery in the first degree without placing a person in fear of injury. For 

12See State ex rel. Dewey Portland Cement Co. v. O’Brien, 142 W.Va. 451, 464, 96 

S.E.2d 171, 178 (1956) (use of disjunctive particle “or” denotes alternative choice); State v. 

Carter, 168 W.Va. 90, 92, 282 S.E.2d 277, 279 (1981) (use of word “or” indicates various 

alternative ways). 

13Other jurisdictions applying the strict elements test have also concluded that battery 

is not a lesser included offense of robbery. See Commonwealth v. Stewart, 957 N.E.2d 712 

(Mass. 2011) (assault and battery by dangerous weapon not lesser included offense of armed 

robbery); Clark v. State, 282 S.W.3d 801 (Ark. 2008) (battery not lesser included offense 

of robbery); Waibel v. State, 808 N.E.2d 750 (Ind. Ct. App. 2004) (same). 

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example, in the instance where the victim’s back is turned and force is used against him or 

her unknowingly, robbery in the first degree is accomplished without the victim perceiving 

the threat of force. Moreover, assault requires the intent to place a person in fear of harm. 

As discussed, such an intent is not required for robbery in the first degree. Therefore, we 

now hold that misdemeanor assault as defined by W.Va. Code § 61-2-9(b) is not a lesser 

included offense of robbery in the first degree.14 

Having found that misdemeanor assault and battery are not lesser included 

offenses of first degree robbery, it is not necessary to proceed to the second inquiry under 

syllabus point one of Jones. The circuit court did not commit error in refusing to give the 

petitioner’s requested instructions for assault and battery. 

IV. CONCLUSION 

For the reasons set forth above, the final order of the Circuit Court of Ohio 

County entered on July 6, 2011, is affirmed. 

Affirmed. 

14This Court has previously held that malicious or unlawful assault as defined by West 

Virginia Code § 61-2-9(a) is not a lesser included offense of robbery. State v. Vance, 168 

W.Va. 666, 285 S.E.2d 437 (1981). 

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