Stephen M. Kenney
Special Assistant Prosecuting Attorney Shepherdstown, West Virginia
Charleston, West Virginia Attorney for the Appellant
Attorney for the Appellee
Justice Albright delivered the Opinion of the Court.
a general rule, the refusal to give a requested jury instruction is reviewed
for an abuse of discretion. Syl. Pt. 1, in part, State v. Hinkle,
200 W.Va. 280, 489 S.E.2d 257 (1996).
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).
'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). 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. Syllabus Point 1, State v. Louk,  W.Va. , 285 S.E.2d 432 (1981) [overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994)].' Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982). Syl. Pt. 5, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997).
The offense of brandishing as defined by West Virginia Code § 61-7-11
is a lesser included offense within the definition of wanton endangerment
under West Virginia Code § 61-7-12.
6. 'In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested. Syllabus, Point 4, State v. Hayes, 136 W.Va. 199 [67 S.E.2d 9] .' Syl. Pt. 2, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). Syl. Pt. 3, State v. Miller, 184 W.Va. 492, 401 S.E.2d 237 (1990).
This is an appeal by Mr. David L.
Bell, Jr., (hereinafter Appellant) from a final order of the Circuit
Court of Jefferson County, pursuant to a jury verdict, finding the Appellant
guilty of the felony of wanton endangerment. The Appellant contends that the
lower court erred in failing to instruct the jury on brandishing as a lesser
included offense and in failing to instruct the jury regarding the right of
a landowner to prohibit firearms on his property. Having thoroughly reviewed
the record and the arguments of counsel, we reverse the Appellant's conviction
and remand for a new trial on a single count of wanton endangerment.
Mr. Eggleton telephoned the Appellant at the Appellant's
home on the following day, and the Appellant reiterated that the hunters would
be shot if they returned to the Bell Farm. On January 10, 1999,
Mr. Eggleton and the West Virginia State Police recorded a phone conversation
in which the Appellant again stated that he would shoot the hunters if they
returned to the property. The Appellant was arrested on April 10, 1999.
The Appellant was thereafter indicted for three counts of wanton endangerment, three counts of civil rights violations, and three counts of impeding the right to hunt. On March 20, 2000, the State filed a motion to dismiss the indictment, based upon information that the Eggletons had not obtained permission to hunt on the day in question.
The State sought and obtained a new six count indictment at the April 2000
grand jury, and trial proceeded on three counts of wanton endangerment and
three counts of civil rights violations. During trial on January 23, 24, and
25, 2001, the Appellant requested an instruction on brandishing as a lesser
included offense and an instruction on the right of a land owner to prohibit
firearms on his premises. The lower court denied such requests. The Appellant
was thereafter convicted of one count of wanton endangerment and sentenced
to six months and one day.
On appeal to this Court, the Appellant contends
that the lower court erred in (1) refusing to provide the Appellant's offered
jury instruction on brandishing as a lesser included offense;
(See footnote 2)
and (2) refusing to provide the Appellant's offered jury instruction
on the right of a land owner to prohibit firearms on his premises.
(See footnote 3)
With regard to the particular facts of the crime, the
Wright Court reasoned: Given the circumstances of this case, it
would have been impossible for Mr. Wright to commit malicious assault with a
single gunshot without committing wanton endangerment with a firearm.
200 W. Va. at 553, 490 S.E.2d at 640. Consequently, the Court found that the
lower court had erred by refusing to provide the instruction regarding the lesser
The specific issue of whether wanton endangerment
could include brandishing was addressed in Hancock v. Commonwealth,
998 S.W.2d 496 (Ky. App. 1998), and the court explained that examples
of conduct which constitute wanton endangerment include discharging or brandishing
firearms in public, using firearms or explosives in a grossly careless manner,
and obstructing public highways. Id. at 498. The Hancock
court also recognized that wanton endangerment is not limited to specific
types of conduct. It 'may be committed in many ways.' Id., quoting
Hardin v. Commonwealth, 573 S.W.2d 657, 660 (Ky. 1978).
Similarly, in State v. Estrada, 1998 WL 46283
(Wash. App. Div. 3 1998), the court found little merit in Mr. Estrada's
argument that unlawful display of a firearm is not a lesser included offense
of first degree reckless endangerment. Id. at *2. Citing State
v. Workman, 584 P.2d 382 (Wash. 1978),
(See footnote 4) the Estrada court
recognized that a crime is not a lesser included offense unless each
of the elements of the lesser offense is a necessary element of the offense
charged and the evidence supports an inference that the lesser crime was committed.
Id. The court concluded that the lesser offense in that case satisfied
both conditions, explaining as follows:
The elements of first degree reckless endangerment as charged are that the defendant recklessly discharge a firearm, from a motor vehicle, in a manner creating a substantial risk of death or serious injury to another person. Former RCW 9A.36.045(1). The element of carrying, exhibiting, displaying or drawing a firearm under RCW 9.41.270 is a necessary element of the greater crime. Likewise, the element of circumstances warranting alarm under the lesser offense is an inherent characteristic of acting in a reckless manner endangering others.
In the case sub judice, the Appellant introduced
evidence tending to show that an instruction on brandishing, as a lesser included
offense to wanton endangerment with a firearm, would have been appropriate
under this factual scenario. Our examination of the legal issue must include
an analysis of whether it would have been impossible for the Appellant to
have committed the greater offense of wanton endangerment, under the facts
as presented in this circumstance, without having first committed the lesser
offense of brandishing. Our analysis must be premised upon the language of the statutes
and the facts of this particular case. As syllabus point five of Wright
instructs, [a]n offense is not a lesser included offense if it requires
the inclusion of an element not required in the greater offense. 200
W. Va. at 550, 490 S.E.2d at 637.
The brandishing statute, West Virginia Code §
61-7-11, provides that an individual commits brandishing if, while armed with
a firearm or other deadly weapon, he carries, brandishes, or uses such
weapon in a way or manner to cause, or threaten, a breach of the peace.
(See footnote 5)
By comparison, the wanton endangerment statute, West Virginia Code §
61-7-12, explains that an individual commits wanton endangerment if he wantonly
performs any act with a firearm which creates a substantial risk of death
or serious bodily injury to another.
a comparison of the two statutes reveals that the offense of brandishing does
not require the inclusion of any element not required by the offense of wanton
endangerment. To have committed wanton endangerment, requiring the creation
of a substantial risk of death or serious bodily injury, in the confrontation
described by the parties in this case, the Appellant would had to have first
carried, brandished, or used his weapon in a manner to threaten a breach of
The state argues that brandishing
is not necessarily an included offense because an assailant intent upon wanton
endangerment might commit that crime by attacking a victim from behind the
victim or otherwise out of a victim's line of vision. We reject that argument
because it is equally clear that one may commit brandishing under like circumstances
behind a victim or otherwise out of the victim's line of vision. The brandishing
statute requires only that the individual carry, brandish, or use a deadly
weapon in a manner to cause or threaten a breach of the peace. The fact that
a victim may not immediately see the individual using a weapon in such a matter
does not mean that the crime of brandishing has not been committed.
that it would have been
impossible for the Appellant to have committed wanton endangerment without
first committing brandishing. Accordingly,
we hold that the offense of brandishing as defined by West Virginia Code § 61-7-11
is a lesser included offense within the definition of wanton endangerment
under West Virginia Code § 61-7-12.
(See footnote 6) We find that there was ample
evidence in the trial below to support an instruction on brandishing as a
lesser included offense under the indictment returned below.
The lower court abused its discretion
by refusing to provide the brandishing instruction offered by the Appellant,
and this case must be reversed on that assignment of error.
The Appellant contends that, as the individual charged
with the control and management of the Bell Farm, he had the statutory
right to approach the hunters and inform them that they were not permitted
to hunt on the property under his control. The Appellant's primary contention
appears to be that a jury instruction regarding such right should have been
provided to explain the context of his concerns, rather than as an exoneration
for any subsequent behavior which may have constituted brandishing or wanton
endangerment. The Appellant testified that he sought to stop and question
the hunters regarding their presence on the property. He contends that the
requested instruction would have permitted the jury to place his actions within
the context of statutorily-permissible behavior. The Appellant further contends
that refusal of such instruction limited his ability to fully elaborate upon
his contention that he was exercising the legitimate function of protecting
the property under his control.
In response, the State contends that the issue of whether
the Appellant had the right to prohibit the carrying of firearms on the property
is irrelevant since the crime occurred off the immediate premises of the Bell
Farm and involved Mr. Bell's use of a firearm.
(See footnote 7) The State maintains that there
is no theory of the case which would require the requested instruction.
In syllabus point three of State v. Miller, 184 W.Va. 492, 401 S.E.2d 237 (1990), this Court explained: 'In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested. Syllabus, Point 4, State v. Hayes, 136 W.Va. 199 [67 S.E.2d 9] .' Syl. Pt. 2, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).
The statute upon which the instruction is based is clearly a part of the legislative scheme related to the open carrying of firearms and vests in property owners and those charged with the responsibility for safeguarding real property the clear right to require third parties not to carry or display firearms on such property. As such, the statute and the requested instruction provided a lawful premise for the Appellant's demand that the Eggletons not carry arms on the subject property and constituted a proper means of informing the jury of that lawful premise.The Appellant does not claim, nor would this Court, that the Appellant is entitled to this instruction as an excuse or justification for violation of the criminal statutes prohibiting the brandishing and /or wanton endangerment which allegedly occurred during the confrontation. Rather, the instruction provides the Appellant a means of demonstrating the legality and propriety of prohibiting persons from entering onto property while carrying firearms, supportive of the Appellant's contention that he was performing a duty of his employment. As such, the instruction appears to be germane to the Appellant's theory of defense. Upon any re-trial of this cause occasioned by our decision to reverse the conviction for failure to instruct on the matter of a lesser included offense, the trial court should consider whether this instruction, if offered, is again justified by the evidence and theory or theories of defense.
An interesting discussion
of what constitutes a breach of the peace at common law will be found in Ware
v. Branch Circuit Judge, 75 Mich. 488, 42 N. W. 997, wherein it was held
that the use of foul, abusive, and insulting language in a dwelling house
in the presence of the occupants, unaccompanied by threats and causing no
expectation or fear of personal violence, is not a breach of the peace within
the common-law definition of that term. The court said:
The only cases of breach of the peace, not involving open disturbance in public places, and to the actual annoyance of the public at large, or persons employed and actually engaged in public functions, require personal violence, either actually inflicted or immediately threatened. There are, in some of the definitions, references to language tending to provoke a breach of the
peace, and relator's claim is based on this. But the authorities have very
plainly held that this covers nothing that is not meant and adapted to bring
about violence directly. It is laid down, very positively, that insulting
and abusive language does not come within the rule, but it must be threats
of immediate violence, or challenges to fight, or incitements to immediate
personal violence or mischief.
94 W. Va. at 581, 119 S.E at 684; see also State ex rel. State v. Gustke, 205 W.Va. 72, 80-81, 516 S.E.2d 283, 291-92 (1999) (holding that driving under the influence in a breach of the peace); Syl. pt. 7, State v. Long, 88 W.Va. 669, 670, 108 S.E. 279, 280 (1921) (holding that a breach of peace includes all violations of the public peace, order or decorum, such as to make an affray; threaten to beat, wound, or kill another, or commit violence against the person or property; contend with angry words to the disturbance of the peace; appear in a state of gross intoxication in a public place; recklessly flourish a loaded pistol in a public place while intoxicated; and the like).