refusal to give instruction in Indiana

1995We also note that Lucre fails to state "whether the refusal to give the instruction resulted in prejudice to the party who tendered it." Id. at 240 .

1987We note the standard of review for refusal to give tendered instructions was recently summarized by Judge Young in City of Lake Station v. Rogers (1986), Ind.App., 500 N.E.2d 235 , 240: "In reviewing the refusal to give tendered instructions, the court must determine the following: 1) whether the tendered instruction correctly states the law; 2) whether the record would support the giving of the instruction; 3) whether the substance of the tendered instruction is covered by other instructions which were given; and 4) whether the refusal to give the instruction resulted in prejudice to the part

2010Similarly, in Jackson v. State, 890 N.E.2d 11 (Ind.Ct.App.2008), the court approved the refusal to give an instruction on the statutory defense because "there was no evidence regarding whether there were any children under the age of eighteen at the school." Id. at 20 .

2010Similarly, in Jackson v. State, 890 N.E.2d 11 (Ind.Ct.App.2008), the court approved the refusal to give an instruction on the statutory defense because "there was no evidence regarding whether there were any children under the age of eighteen at the school." Id. at 20 .

1994Davis, 529 N.E.2d at 116 .

1994Davis, 529 N.E.2d at 116 .

1978However, since these last cited cases were decided, this Court has sanctioned the refusal to give an instruction upon a lesser and included offense where “the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses ... has substantial probative value and is not in serious dispute.” Lawrence v. State, (1978) 268 Ind. 330 , 375 N.E.2d 208, 213 ; Hash v. State, (1972) 258 Ind. 692 , 284 N.E.2d 770 ; Hester v. State, (1974) 262 Ind. 284 , 315 N.E.2d 351 .

1978However, since these last cited cases were decided, this Court has sanctioned the refusal to give an instruction upon a lesser and included offense where “the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses ... has substantial probative value and is not in serious dispute.” Lawrence v. State, (1978) 268 Ind. 330 , 375 N.E.2d 208, 213 ; Hash v. State, (1972) 258 Ind. 692 , 284 N.E.2d 770 ; Hester v. State, (1974) 262 Ind. 284 , 315 N.E.2d 351 .

2019See Bergfield, 531 N.E.2d at 490 ; Macklin, 701 N.E.2d at 1251 .

2019Yet, "[j]ury instructions are not to be considered in isolation but as a whole and with reference to each other." Bonham v. State , 644 N.E.2d 1223 , 1227 (Ind. 1994).

2019The majority upholds the refusal to give the instruction on the basis that an incomplete instruction "could have confused or misled the jury." Id.

2019Id. at 1264 . [27] Here, the refusal to give the instruction was likewise harmless because the State presented substantial evidence of Armour’s intent to constructively possess the heroin and handgun.

2017Id. at 94-95. [11] In Townsend v. State, 934 N.E.2d 118 (Ind. Ct. App. 2010), trans. denied, we upheld the refusal to give an instruction identical to Lavender’s proposed Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017 Page 6 of 10 instruction because its substance was adequately covered by the given instructions.

1998Id.

1996Id.

1989Baggett v. State (1987), Ind., 514 N.E.2d 1244 .

1986Only upon an affirmative showing on all points will the refusal constitute reversible error. - Hogston v. Schroyer (1983), Ind.App., 449 N.E.2d 291 .

1982Davis v. State, (1976) 265 Ind. 476 , 355 N.E.2d 836 .

1982Davis v. State, (1976) 265 Ind. 476 , 355 N.E.2d 836 .

1980In DeWeese v. State, (1972) 258 Ind. 520 , 282 N.E.2d 828 , we stated: “At most the evidence showed that the appellant had consumed some three or four beers prior to the alleged robbery.

1980In DeWeese v. State, (1972) 258 Ind. 520 , 282 N.E.2d 828 , we stated: “At most the evidence showed that the appellant had consumed some three or four beers prior to the alleged robbery.

1980Patterson v. State, (1978) 267 Ind. 515 , 371 N.E.2d 1309 .

1980Patterson v. State, (1978) 267 Ind. 515 , 371 N.E.2d 1309 .

1978However, since these last cited cases were decided, this Court has sanctioned the refusal to give an instruction upon a lesser and included offense where “the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses ... has substantial probative value and is not in serious dispute.” Lawrence v. State, (1978) 268 Ind. 330 , 375 N.E.2d 208, 213 ; Hash v. State, (1972) 258 Ind. 692 , 284 N.E.2d 770 ; Hester v. State, (1974) 262 Ind. 284 , 315 N.E.2d 351 .

1978However, since these last cited cases were decided, this Court has sanctioned the refusal to give an instruction upon a lesser and included offense where “the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses ... has substantial probative value and is not in serious dispute.” Lawrence v. State, (1978) 268 Ind. 330 , 375 N.E.2d 208, 213 ; Hash v. State, (1972) 258 Ind. 692 , 284 N.E.2d 770 ; Hester v. State, (1974) 262 Ind. 284 , 315 N.E.2d 351 .

1978However, since these last cited cases were decided, this Court has sanctioned the refusal to give an instruction upon a lesser and included offense where “the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses ... has substantial probative value and is not in serious dispute.” Lawrence v. State, (1978) 268 Ind. 330 , 375 N.E.2d 208, 213 ; Hash v. State, (1972) 258 Ind. 692 , 284 N.E.2d 770 ; Hester v. State, (1974) 262 Ind. 284 , 315 N.E.2d 351 .

1978However, since these last cited cases were decided, this Court has sanctioned the refusal to give an instruction upon a lesser and included offense where “the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses ... has substantial probative value and is not in serious dispute.” Lawrence v. State, (1978) 268 Ind. 330 , 375 N.E.2d 208, 213 ; Hash v. State, (1972) 258 Ind. 692 , 284 N.E.2d 770 ; Hester v. State, (1974) 262 Ind. 284 , 315 N.E.2d 351 .

1971While this instruction is by no means identical to defendant-appellant’s tendered and refused instruction No. 8 in Indianapolis Transit System, Inc. v. Williams (Ind. App. 1971), 269 N. E. 2d 543, 547 , 25 Ind. Dec. 482 , 487, what we said in that opinion concerning the refusal to give that instruction is equally applicable here.

1968In the Jones case, Judge Smith speaking for this court, stated: “It is our opinion that the giving of instruction Number 39 permitted the jury to decide this cause of action on the theory of a ‘mere accident’ and, therefore, constitutes reversible error.” The refusal to give an instruction defining “mere accident” was held not error by this court in Rust v. Watson (1966), 141 Ind. App. 59 , 215 N. E. 2d 42, 48 , 8 Ind. Dec. 21 , 33 on the authority of the Miller and White decisions of our Supreme Court.

1968In the Jones case, Judge Smith speaking for this court, stated: “It is our opinion that the giving of instruction Number 39 permitted the jury to decide this cause of action on the theory of a ‘mere accident’ and, therefore, constitutes reversible error.” The refusal to give an instruction defining “mere accident” was held not error by this court in Rust v. Watson (1966), 141 Ind. App. 59 , 215 N. E. 2d 42, 48 , 8 Ind. Dec. 21 , 33 on the authority of the Miller and White decisions of our Supreme Court.

1960See: Lindley v. Sink (1940), 218 Ind. 1, 20 , 30 N. E. 2d 456, 463 , 2 A. L.

1960See: Lindley v. Sink (1940), 218 Ind. 1, 20 , 30 N. E. 2d 456, 463 , 2 A. L.

1948Acme-Evans v. Schnepf (1038), 105 Ind. App. 475 , 15 N. E. 2d 742 ; Muncie Traction Co. v. Sheffer (1919), 69 Ind. App. 395 , 122 N. E. 9 .

1948Acme-Evans v. Schnepf (1038), 105 Ind. App. 475 , 15 N. E. 2d 742 ; Muncie Traction Co. v. Sheffer (1919), 69 Ind. App. 395 , 122 N. E. 9 .

1948Acme-Evans v. Schnepf (1038), 105 Ind. App. 475 , 15 N. E. 2d 742 ; Muncie Traction Co. v. Sheffer (1919), 69 Ind. App. 395 , 122 N. E. 9 .

1948Acme-Evans v. Schnepf (1038), 105 Ind. App. 475 , 15 N. E. 2d 742 ; Muncie Traction Co. v. Sheffer (1919), 69 Ind. App. 395 , 122 N. E. 9 .

1938See Wiley v. State (1929), 200 Ind. 572 , 165 N. E. 313 ; Burke v. Middlesworth (1931), 92 Ind. App. 394 , 174 N. E. 432 ; Habich v. University Park Building Company (1912), 177 Ind. 193, 199 , 97 N. E. 539 ; City of Logansport v. Green, Administratrix (1922), 192 Ind. 253 , 135 N. E. 657 .

1938See Wiley v. State (1929), 200 Ind. 572 , 165 N. E. 313 ; Burke v. Middlesworth (1931), 92 Ind. App. 394 , 174 N. E. 432 ; Habich v. University Park Building Company (1912), 177 Ind. 193, 199 , 97 N. E. 539 ; City of Logansport v. Green, Administratrix (1922), 192 Ind. 253 , 135 N. E. 657 .

1938See Wiley v. State (1929), 200 Ind. 572 , 165 N. E. 313 ; Burke v. Middlesworth (1931), 92 Ind. App. 394 , 174 N. E. 432 ; Habich v. University Park Building Company (1912), 177 Ind. 193, 199 , 97 N. E. 539 ; City of Logansport v. Green, Administratrix (1922), 192 Ind. 253 , 135 N. E. 657 .

1938See Wiley v. State (1929), 200 Ind. 572 , 165 N. E. 313 ; Burke v. Middlesworth (1931), 92 Ind. App. 394 , 174 N. E. 432 ; Habich v. University Park Building Company (1912), 177 Ind. 193, 199 , 97 N. E. 539 ; City of Logansport v. Green, Administratrix (1922), 192 Ind. 253 , 135 N. E. 657 .