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Richard H. Lorensen Darrell
V. McGraw, Jr.
Greenbrier County Public Defender Attorney General
Lewisburg, West Virginia Dawn E. Warfield
Attorney for the Appellant Deputy Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. The function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, is sufficient to convince a reasonable person
of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proved beyond a reasonable
doubt. Syllabus point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
2. Once there is sufficient evidence to create a reasonable doubt that [an
assault] resulted from the defendant acting in self-defense, the prosecution must prove
beyond a reasonable doubt that the defendant did not act in self-defense. Syllabus point
4, State v. Kirtley, W. Va., 252 S.E.2d 374 (1978).
Eric Kenneth Wykle, defendant/appellant (hereinafter referred to as Mr. Wykle), appeals his conviction and sentence for the crime of unlawful assault. Mr. Wykle was prosecuted in the Circuit Court of Greenbrier County on a single count indictment charging him with malicious assault. A jury convicted him of the lesser included offense of unlawful assault. The circuit court sentenced Mr. Wykle to one to five years in the State penitentiary. The sentence was suspended. Mr. Wykle was placed on probation for 18 months, with the condition that he serve 90 days in jail and 30 days on home incarceration. The sole issue before this Court is whether the trial court committed error by denying Mr. Wykle's motion for judgment of acquittal because the State failed to prove beyond a reasonable doubt that he did not act in self-defense in committing the crime charged. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we conclude that the Circuit Court of Greenbrier County did not commit error by denying Mr. Wykle's motion for judgment of acquittal. The judgment is therefore affirmed.
Within minutes after the first telephone call, Mr. Wykle made a second call
to Mr. Loomis' home. Mr. Loomis answered the second telephone call. Although the
testimony was conflicting, it was clear that Mr. Loomis advised Mr. Wykle that he was
going to make sure that the constant telephone calls ceased.
Shortly after ending the telephone conversation with Mr. Wykle, Mr. Loomis drove to the home of Mr. Mankins to confront Mr. Wykle. When Mr. Loomis entered Mr. Mankins' home, Mr. Wykle was sitting in a chair in the kitchen. Mr. Mankins was also in the kitchen. A five to ten minute conversation took place between Mr. Loomis and Mr. Wykle.See footnote 3 Thereafter, Mr. Loomis struck Mr. Wykle on the head with his hand.
Mr. Wykle got up from his chair after being struck by Mr. Loomis and picked up a small knife. A heated discussion occurred after Mr. Wykle picked up the knife. Conflicting evidence was presented as to whether Mr. Loomis attacked Mr. Wykle while he held the knife, or whether Mr. Wykle attacked Mr. Loomis. However, a fight ensued which left Mr. Loomis lying on the floor with nine stab wounds to his body.See footnote 4
Mr. Mankins was able to stop
the fight and take the knife from Mr. Wykle. The police and an ambulance were
called. After the police arrived and took statements, Mr. Wykle was placed under
arrest.See footnote 5
Mr. Loomis was taken to a hospital, where he remained for two days.See
On February 2, 1999, a grand jury indicted Mr. Wykle on a charge of
malicious wounding. A jury trial was held on May 5 and 6, 1999. Mr. Wykle defended
himself on the theory of self-defense. The jury rejected the defense and convicted Mr.
Wykle of the lesser included offense of unlawful assault.See
footnote 7 Mr. Wykle filed post-trial
motions seeking relief from the conviction and sentence. The trial court denied
Mr. Loomis was the initial
aggressor. Mr. Loomis intentionally struck Mr. Wykle on the head with his hand
while the two men were arguing.See footnote
10 At the time of the attack, Mr. Wykle had no weapon on his person. Mr.
Wykle testified that he told Mr. Loomis he did not want to fight because of
his recent mouth surgery. Clearly, our cases support the use of reasonable force
by Mr. Wykle to defend himself when Mr. Loomis slapped him. See Collins
v. Bennett, 199 W. Va. 624, 628, 486 S.E.2d 793, 797 (1997) ([T]he
privilege of self-defense is lost only where one attempting to assert the defense
intentionally provokes battery from another.); Syllabus, State v. Smith,
170 W. Va. 654,295 S.E.2d 820 (1982) (The general rule is that a person
accused of an assault does not lose his right to assert self-defense, unless
he said or did something calculated to induce an attack upon himself.).
The critical factor for consideration
is whether Mr. Wykle used excessive force in defending himself against Mr. Loomis.
To properly assert the theory of self- defense [t]he amount of force used
in defense must not be excessive and must be reasonable in relation to the perceived
threat. Collins, 199 W. Va. at 628, 486 S.E.2d at 797. Our law
is clear that when a person is threatened only with non-deadly force,
he may use only non-deadly force in return. State v. W. J. B.,
166 W. Va. 602, 609, 276 S.E.2d 550, 554 (1981). See State v. Knotts,
187 W. Va. 795, 801, 421 S.E.2d 917, 923 (1992) ([T]he defendant may only
use non-deadly force where he is threatened only with non-deadly force.).
A defendant may not use a deadly weapon unless his own life is imperiled
or it is necessary to ward off great bodily harm. Syl. pt. 7, in part,
Shires v. Boggess, 72 W. Va. 109, 77 S.E. 542 (1913). See State
v. Gravely, 66 W. Va. 375, 379, 66 S.E. 503, 505 (1909) (Whether the
use of such weapon is justified, must depend upon the fact whether the party
was in imminent peril of receiving great bodily harm, or had reasonable ground
to so believe, and that such act was necessary to prevent the same.).
We believe the use of a deadly
weapon under the circumstances to be unjustified. Nothing in the record indicated
Mr. Loomis possessed a deadly weapon, or that Mr. Wykle was in imminent danger
of death or great bodily harm. Mr. Loomis confronted Mr. Wykle with nothing
more than his bare hands. Both men were relatively the same size in height and
weight.See footnote 11 While our
cases would support the reasonable use of Mr. Wykle's bare hands to repel any
further attack by Mr. Loomis, we believe the jury properly found that the use
of a knife to stab Mr. Loomis nine times was excessive in relation to any reasonably
perceived danger. See State v. Vest, 98 W. Va. 138, 126 S.E. 587,
589 (1925) (The jury must put themselves as far as they can in the shoes
of the [defendant] at the time of the affray and determine from all the circumstances
whether he had reasonable grounds for apprehending danger of his life or great
bodily harm, and that he did believe the danger imminent, and that such design
would be accomplished, and that he believed it necessary in order to protect
himself to use the . . . weapon in his defense.).
However, Mr. Wykle declined by stating that he had recently undergone mouth surgery.
(a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall be guilty of a felony, and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.
assault, Mr. Wykle was in the home of Mr. Mankins. See Syl. pt. 4, State v. Preece, 116 W. Va. 176, 179 S.E. 524 (1935) (A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.).
insulting, does not destroy the privilege of self-defense, even though a reasonable man should realize that the provocation will probably induce the attack.' State v. Smith, 170 W. Va. 654, 657 n.2, 295 S.E.2d 820, 822 n.2 (1982), quoting, Restatement (Second) of Torts § 69(a) (1965).