Defending Against a Malicious Wounding Charge

Attorney Answer

This is a felony carrying two to ten years, and the single element that separates it from the far lesser version of the same offense is malice.

Both charges live in the same subsection. W. Va. Code § 61-2-9 is captioned "Malicious or unlawful assault; assault; battery; penalties," and subsection (a) contains the greater and the lesser offense together. Malicious assault — what people usually call malicious wounding — is committed "[I]f any person maliciously shoots, stabs, cuts or wounds any person" with intent to maim, disfigure, disable or kill, and it is a felony punishable by two to ten years. If the same act is done "unlawfully, but not maliciously," it is unlawful assault: a felony punishable by one to five years, or, in the discretion of the court, up to twelve months in jail plus a fine of up to $500.

That difference is the center of your case. The State must prove malice, and unlawful assault is the lesser included offense within the same subsection — so an outcome that removes malice moves you from a two-to-ten-year felony to something the judge has discretion to punish with a year in jail.

The rest of the statute frames the range below that. Subsection (b) is simple assault, a misdemeanor punishable by up to six months or a $100 fine. Subsection (c) is battery, a misdemeanor punishable by up to twelve months or a $500 fine. Subsection (d) provides enhanced penalties for repeat domestic violence offenses, which matters if you have prior convictions of that kind.

What you can do

1. Stop discussing the incident with anyone but your lawyer — not the other person, not police, not on the phone from jail, and not on social media. Recorded jail calls are used at trial routinely. 2. If you do not have a lawyer, ask the magistrate for a court-appointed one at your first appearance. Do not wait. 3. Do not write out your own account of what happened. Notes you create yourself are not protected by attorney-client privilege, can be seized or subpoenaed, and can be used to impeach you if your testimony later differs. Instead preserve the records that already exist — texts, call logs, emails, receipts, photos and location history — along with the names and contact details of any witnesses, and give your account to your attorney verbally. 4. Identify every witness, camera, and medical record that shows how the injury happened and who started it. Surveillance video is often overwritten within weeks. 5. Talk with your lawyer specifically about whether malice can be contested — the difference between the two tiers of subsection (a) is likely the most valuable ground in your case.