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. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

ADVERTISEMENT