COA: Judge erred in giving jury instruction

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A Jefferson Superior judge erred in giving a jury an instruction on a lesser included offense of domestic battery because there wasn’t a serious evidentiary dispute about whether the battery was committed in the presence of children, the Indiana Court of Appeals held Thursday.

George Michael True appealed his conviction of Class A misdemeanor domestic battery. He was charged with, among other things, Class D felony domestic battery for going to his ex-wife’s apartment and attacking her while his children and another minor relative were staying there. He claimed he couldn’t have been the one to attack her because he was at church and that his ex-wife had the children lie about hearing him and seeing him attack her to influence an ongoing custody battle between the two.  

At the state’s request and over True’s objection, the trial court instructed the jury that it could convict True of Class A misdemeanor domestic battery, which doesn’t require the battery to occur in the presence of a child, as a lesser included offense of the Class D felony domestic battery. The jury convicted him of Class A misdemeanor domestic battery.

In Watts v. State, 885 N.E.2d 1228, 1232-33 (Ind. 2008), the Indiana Supreme Court held that it is reversible error for a trial court to give a lesser included offense instruction at the request of the state in the absence of a serious evidentiary dispute distinguishing the lesser offense from the greater. The COA found that the Watts court’s observations apply in True’s case – the propriety of a defendant’s “all-or-nothing” defense strategy and how such a defense can be improperly undermined by the state obtaining a lesser included offense instruction where the evidence doesn’t warrant it. The Supreme Court also has expressed concern over the possibility of a jury entering a “compromise” verdict.

True pursued an “all-or-nothing” defense strategy, noting conflicting evidence whether he was even at his ex-wife’s apartment the morning she was battered. The evidence was conflicting only on whether True committed any battery at all, not on whether the crime was committed in the presence of children as defined in the domestic battery statute, wrote Judge Michael Barnes in George Michael True v. State of Indiana, No. 39A04-1102-CR-37.

“… we conclude there clearly was no serious evidentiary dispute about whether the battery was committed in the presence of children. Either there was a domestic battery committed in the presence of children, or there was no battery at all. Instructing the jury that it could convict True of Class A misdemeanor domestic battery instead of Class D felony domestic battery improperly invited the jury to reach a ‘compromise’ verdict,” he wrote.

The COA reversed True’s conviction and remanded for further proceedings.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues