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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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