State v. Wyatt

I write separately because the majority has endorsed an opinion that is wrong not only on its basis for reversal, but also because it is written in such a confusing manner that it will leave the trial courts in the difficult position of trying to ascertain what legal principles the majority has attempted to enunciate.

I. The Alleged Instructional Error

The majority reverses this conviction by treating an alleged instructional error that was totally unpreserved in the record as plain error. This flies in the face of the recent very well-reasoned decision in State v. LaRock, 196 W.Va. 294, 470…