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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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