| Dennis R. Bailey, Esq.|
Charleston, West Virginia
Attorney for the Appellant
| Stephen B. Revercomb, Esq.
Robert William Schulenberg, III, Esq.
Assistant Prosecuting Attorney
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT not participating.
SYLLABUS BY THE COURT
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
W. Va. 280, 489 S.E.2d 257 (1996).
2. Where there is competent evidence tending to support a pertinent
theory in the case, it is the duty of the trial court to give an instruction presenting such theory
when requested to do so. Syl. pt. 7, State v. Alie
, 82 W. Va. 601, 96 S.E. 1011 (1918).
3. Instructions must be based upon the evidence and an instruction which
is not supported by evidence should not be given. Syl. pt. 4, State v. Collins
, 154 W. Va.
771, 180 S.E.2d 54 (1971).
The appellant, Robert Lee Shingleton, was found guilty by a jury in the Circuit
Court of Kanawha County, West Virginia, of the felony offense of malicious assault. The
Circuit Court entered judgment upon the verdict, denied the appellant's motion for a new trial
and, following a recidivist proceeding, entered an order on October 24, 2006, sentencing him
to 4 to 10 years in the penitentiary. (See footnote 1)
The appellant filed a notice of intent to appeal in the
Circuit Court, and the appeal was subsequently granted by this Court. The appellant is
incarcerated at the Correctional Center in St. Marys, West Virginia.
The conviction arose from the appellant striking and beating Edward Stanley
Ayers in Ayers' apartment in Charleston, West Virginia, on August 31, 2004. As a result of
the incident, Ayers was hospitalized for several days. The sole issue raised by the appellant
is whether the Circuit Court abused its discretion in refusing to instruct the jury upon the
appellant's theory of self-defense.
This Court has conducted a thorough examination of the record, including the
testimony and exhibits admitted at trial, the petition for appeal and the memoranda of law
filed in this Court. Contrary to the petition, a portion of the alleged facts relied upon by the
appellant in justification for his conduct toward Ayers was never heard by the jury and,
therefore, could not have formed a basis for an instruction upon self-defense. (See footnote 2)
That, and the
remaining circumstances of this case, demonstrate to this Court that the Circuit Court
exercised sound discretion in refusing to instruct the jury upon self-defense.
Consequently, the appellant's conviction of malicious assault and the October
24, 2006, sentencing order are affirmed.
On August 31, 2004, appellant Shingleton, age 23, and Edward Stanley Ayers,
age 43, engaged in conversation near the Tidewater Grill at the Town Center Mall in
Charleston, West Virginia. They had never met before. Soon after, they entered Tidewater
and began drinking alcohol. The appellant's drinks were purchased by Ayers. At Ayers'
suggestion, they left Tidewater and walked to Broadway, a club located a few blocks east
of the Town Center Mall. During the trial, Ayers testified that he is a homosexual and that
Broadway is known as a gay bar. The two men continued drinking alcohol at Broadway,
and the appellant's drinks were purchased by Ayers.
Thereafter, at Ayers' suggestion, he and the appellant took a taxi to Ayers'
Kanawha Boulevard apartment located a short distance away on the west side of the City.
Chris Neely, the taxi driver, testified at trial that one of the men sat in the back and was
intoxicated to the point of nearly passing out. The other individual, less intoxicated, sat in
the front of the taxi and spoke to Neely. As Neely testified:
The only thing that I recall that he said was, it was made known to me
that the guy in the back had received his paycheck on that very day and the guy
in the front made a comment, Well, if this queer wants to spend his paycheck
on me, then I'll let him. It may not be that exact words, don't get me wrong,
but it was to that effect.
Upon entering the apartment, Ayers turned on the television, prepared some
drinks and sat on the couch with the appellant. Ayers testified that, at that point, he put his
hand on top of the appellant's leg which caused the appellant to become nervous and upset.
Ayers stated that he offered the appellant $20 to leave the apartment. Protesting that $20 was
not enough, the appellant then struck Ayers on the left side of the face rendering him
unconscious. According to Ayers, he was, therefore, unable to determine how many times
the appellant struck him. When Ayers awoke, the appellant was gone, and Ayers discovered
that his wallet, which contained some cash and a credit card, was missing. Bleeding
profusely, Ayers called a friend for assistance. A 911 call was placed, and an ambulance
transported Ayers to Charleston Area Medical Center, General Division. The wallet and its
contents were never recovered.
Ayers spent four days in the hospital, including two days in the intensive care
unit. It was determined that he suffered from blunt force trauma to the face, head and neck,
with multiple fractures about the face and substantial blood loss.
The appellant was taken into custody on September 8, 2004.
In November 2004, a Kanawha County grand jury returned a two count
indictment against appellant Shingleton charging him with robbery and malicious assault. (See footnote 3)
Trial began on June 21, 2005. The witnesses called by the State were: (1) Edward Stanley
Ayers, (2) Chris Neely, a taxi driver employed by C & H Taxi Company, (3) Charleston law
enforcement officers Tony Hazlett and J. J. Dotson, (4) paramedic Ryan Vaughan and (5) Dr.
Richard Umstadt, a trauma surgeon at Charleston Area Medical Center, General Division. (See footnote 4)
The appellant neither testified nor called any witnesses at trial. The jury found the appellant
not guilty of robbery. However, the jury found the appellant guilty of malicious assault. (See footnote 5)
During the trial, the appellant's counsel requested that the jury be instructed
upon the appellant's theory of self-defense. The Circuit Court refused the request and stated:
There's just no evidence that your client did anything based upon self-
defense. * * * Your client was a lot, lot less intoxicated, according to the
cab driver than the victim. So just looking at those pieces of testimony and a
drunk, person intoxicated, touching another person's leg and as amounting to
some kind of man-endangering attack or assault? I don't think so [.] * *
* Not enough to give an instruction. But if you want to get up and argue that
to the jury, you go right on.
The appellant's counsel argued to the jury that the appellant's actions were
based upon a reasonable belief that he was about to be sexually assaulted by Ayers in the
Following the verdict, the appellant filed a motion for a new trial, alleging that
the Circuit Court committed error in refusing to instruct upon self-defense. The Circuit
Court denied the motion and, in its order, set forth the following reason: The defendant was
not entitled to an instruction on self-defense since there was neither evidence of any
subjectively reasonable nature nor any objectively reasonable nature that he was receiving,
or was about to receive, a violent assault or a sexual assault. (See footnote 6)
Following the recidivist proceeding in which the Circuit Court found that the
appellant is the same person who has a previous felony conviction in Taylor County, West
Virginia, for forgery, the appellant was sentenced on October 24, 2006, to 4 to 10 years in
the penitentiary. See, n. 1, supra. Subsequently, this Court granted appellant Shingleton's
Standards of Review
Syllabus point 1 of State v. Hinkle
, 200 W. Va. 280, 489 S.E.2d 257 (1996),
observes 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 2, State v. Jett
, 220 W. Va.
289, 647 S.E.2d 725 (2007); syl. pt. 1, State v. Thompson
, 220 W. Va. 246, 647 S.E.2d 526
(2007); syl. pt. 1, State v. Brooks
, 214 W. Va. 562, 591 S.E.2d 120 (2003); syl. pt. 3, State
, 205 W. Va. 673, 520 S.E.2d 670 (1999). Citing Hinkle
, 10A M. J., Instructions
§ 8 (Matthew Bender & Co. 2003), states: Whether facts are sufficient to justify the
delivery of [a] particular instruction is reviewed by the West Virginia Supreme Court under
an abuse of discretion standard.
Nevertheless, the scope and reach of that discretion is subject to fundamental
guidelines. As long recognized: Where there is competent evidence tending to support a
pertinent theory in the case, it is the duty of the trial court to give an instruction presenting
such theory when requested to do so. Syl. pt. 7, State v. Alie
, 82 W. Va. 601, 96 S.E. 1011
(1918). State v. Headley
, 210 W. Va. 524, 529, 558 S.E.2d 324, 329 (2001); syl. pt. 3, State
, 128 W. Va. 166, 35 S.E.2d 854 (1945). See also
, syl. pt. 2, State v. McCoy
W. Va. 130, 632 S.E.2d 70 (2006) (stating, in part, that a criminal defendant is entitled to
an instruction on any recognized defense for which there exists evidence sufficient for a
reasonable jury to find in his / her favor.).
The counterpart, stated in the negative, to the latter principle is found in
syllabus point 4 of State v. Collins
, 154 W. Va. 771, 180 S.E.2d 54 (1971), which holds:
Instructions must be based upon the evidence and an instruction which is not supported by
evidence should not be given. Syl. pt. 3, State v. Dinger
, 218 W. Va. 225, 624 S.E.2d 572
(2005); syl. pt. 3, State v. Leonard
, 217 W. Va. 603, 619 S.E.2d 116 (2005); State v. Sexton
176 W. Va. 595, 599, 346 S.E.2d 745, 748 (1985). See
, Vol. 2, F. D. Cleckley, Handbook
on West Virginia Criminal Procedure
p. 87 (2nd
ed. Cum. Supp. 2008) (A defendant is only
entitled to a jury instruction if the facts support the defense.) (See footnote 7)
Appellant Shingleton contends that the refusal of the Circuit Court to instruct
the jury upon his theory of self defense resulted in an unfair trial and constituted a denial of
his right to due process. (See footnote 8)
As stated above, he maintained that his actions were based upon
a reasonable belief that he was about to be sexually assaulted by Ayers in the apartment. In
that regard, this Court confirmed last year that, once there is sufficient evidence to create a
reasonable doubt concerning whether the defendant acted in self-defense, the State must
prove beyond a reasonable doubt that the defendant did not act in self-defense. Syl. pt. 8, State v. Whittaker
, 221 W. Va. 117, 650 S.E.2d 216 (2007). See also
, syl. pt. 4, State v.
, 162 W. Va. 249, 252 S.E.2d 374 (1978); 2A Instructions for Virginia and West
§ 24-225.1, Editor's note (5th
ed. Matthew Bender & Co. 2002). Moreover, in State v. McCoy
, this Court stated that a defendant is entitled to an instruction upon
self-defense upon any evidence supporting that theory, regardless of the weakness or
strength of that evidence. 219 W. Va. at 135, 632 S.E.2d at 75.
Consequently, the appropriateness of including self-defense in the matters to
be considered by a jury, while subject to a rather broad standard, must, nevertheless, be
determined upon a case-by-case basis. In State v. Watson, 164 W. Va. 642, 264 S.E.2d 628
(1980), for example, involving a conviction of unlawful assault, this Court held that the
evidence at trial failed to demonstrate ineffective assistance of counsel where self-defense
had not been raised. In Watson, a fight occurred at a supper club during which a third-party,
Henthorn, approached and was struck by the defendant. Henthorn, whose testimony was
confirmed by the defendant's sister and others, stated that he entered the area unaware that
an altercation was taking place and was accosted by the defendant without warning. He
stated that he was struck by the defendant with his fist and then severely injured by the
defendant as a result of a blow with a pool stick. 164 W.Va. at 644, 264 S.E.2d at 630.
Reaffirming the principle that [o]rdinarily, self-defense is not available to the aggressor who
precipitates an affray without legal justification, 164 W.Va. at 651, 264 S.E.2d at 633, this
Court held, in Watson, that not raising the issue of self-defense, under the above
circumstances, did not constitute ineffective assistance of counsel.
Moreover, in State v. Asbury, 187 W.Va. 87, 415 S.E.2d 891 (1992), also involving
a conviction for unlawful assault, this Court held that the trial court properly refused the
defendant's requested self-defense instruction. In that case, the victim was accosted outside
his apartment by the defendant, Raymond C. Asbury, Jr., who accused him of having an
affair with the defendant's former wife. The defendant began striking the victim with his
fists and kicking him. The victim's injuries included severe facial lacerations. At trial,
Asbury asserted that the victim shoved him, thus starting a fight. The victim, however,
maintained that he was backing away when Asbury began hitting him.
Concluding in Asbury that an instruction on self-defense would have been
inappropriate in those circumstances, this Court stated:
We find that under either version
of the October 15, 1989, events, Mr. Asbury is not entitled to an instruction on self-defense
because either Mr. Asbury was the aggressor or Mr. Asbury never felt threatened. We,
therefore, find that the Circuit Court's refusal to give the self-defense instruction was
proper. 187 W. Va. at 90, 415 S.E.2d at 894.
Here, according to the evidence before the jury, when the two men entered
Ayers' apartment, Ayers turned on the television, prepared some drinks and sat on the couch
with the appellant. Ayers testified that, at that point, he put his hand on top of the appellant's
leg which caused the appellant to become nervous and upset. Ayers attempted no further
physical contact. Ayers stated that he then offered the appellant $20 to leave the premises.
Protesting that $20 was not enough, the appellant struck Ayers on the left side of the face
rendering him unconscious. (See footnote 9) According to Ayers, he was, therefore, unable to determine how
many times the appellant struck him. When Ayers awoke, the appellant was gone.
Ultimately, an ambulance transported Ayers to the hospital.
Every indication from the evidence heard by the jury reveals that, after the
appellant first struck Ayers rendering him unconscious, the appellant continued to strike him.
The evidence demonstrates that Ayers spent four days in the hospital, including two days in
the intensive care unit. He suffered from blunt force trauma to the face, head and neck, with
multiple fractures about the face and substantial blood loss. Nothing at trial suggested that
the appellant was prevented from immediately walking out of the apartment when Ayers
placed his hand upon the appellant's leg.
Noting that the appellant was less intoxicated than Ayers, the Circuit Court
determined that there was no evidence that the appellant's actions were based upon self-defense. Upon review, those conclusions are supported by the record. Accordingly, this
Court is of the opinion that the refusal of the Circuit Court to instruct the jury upon self-
defense was protected by the parameters of sound discretion. Thompson, supra, 220
W. Va. at 253, 647 S.E.2d at 533, citing Parker v. Knowlton Construction Company, 158
W. Va. 314, 329, 210 S.E.2d 918, 927 (1975).
The evidence at trial, including photographs of Ayers taken in his apartment,
reveals that Ayers sustained a brutal beating, rendering the proposition that the appellant was
entitled to have the jury instructed upon a theory of self-defense difficult to sustain. The
refusal to so instruct the jury and the denial of the motion for a new trial were proper.
Therefore, appellant Shingleton's conviction of malicious assault and the October 24, 2006,
sentencing order are affirmed.