COA declines to reverse conviction after co-defendant’s conviction overturned

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A panel on the Indiana Court of Appeals Wednesday did not agree with a defendant that his conviction of attempted aggravated battery should be reversed based on the reasoning of a separate appeals panel that overturned the same conviction of his co-defendant.

Chief Judge Nancy Vaidik and Judges Edward Najam and Elaine Brown granted Marquise Lee’s request for rehearing, in which he sought to have the affirmation of his Class B felony conviction of attempted aggravated battery overturned. Lee, his mother, Latoya Lee, and Billy Young were each charged with the murder of Ramon Gude after they went to his home to beat him up. An unidentified man with the three shot Gude, which resulted in his death. The three were tried jointly to the bench, and the court involuntarily dismissed murder charges. The court then found each of them guilty of attempted aggravated battery as a lesser-included offense. Lee’s mother’s conviction was affirmed as well, but Young’s conviction was reversed.

Lee never argued on appeal that attempted aggravated battery was not a lesser included offense to murder nor did he argue the state’s evidence at trial was an impermissible variance from the charging information. In Young, the appeals panel concluded that the trial court found the alleged facts underlying the murder charge were not proved beyond a reasonable doubt, and Young’s conviction for attempted aggravated battery was based on other evidence presented at trial. As such, his conviction is not a lesser-included offense of the murder charge.

In Marquise Lee v. State of Indiana, 49A02-1310-CR-869, the judges noted that Lee did not preserve this issue for appellate review and disagreed with the Young panel that the trial court did not present the defendants with a clear opportunity for a timely objection. When dismissing the murder charge, the judge explicitly told the defendants he would consider lesser-included offenses.

“As the Young panel recognized, ‘[a]t first blush, it would seem attempted aggravated battery’ is an inherently included lesser offense to murder. This fact alone demonstrates that the trial court did not commit an ‘egregious’ and ‘blatant” error,” he wrote.  

Najam then pointed to cases in which the COA has long held that attempted aggravated battery is an inherently lesser-included offense to attempted murder.

“And it should go without saying that attempted murder is an inherently lesser included offense to murder,” he continued. “Thus, the trial court did not commit fundamental error when it entered judgment against Marquise for attempted aggravated battery as an inherently lesser included offense to the charge of murder.”

A separate appeals panel also granted Latoya Lee’s request for rehearing but denied reversing its earlier decision, Latoya C. Lee v. State of Indiana (NFP)



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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