ILNews

COA: Judge erred in giving jury instruction

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

ADVERTISEMENT