lesser included instruction in Indiana

2025Cf. Wright, 658 N.E.2d at 567 (explaining that, where there is a serious evidentiary Court of Appeals of Indiana | Opinion 24A-CR-1233 | February 21, 2025 Page 13 of 15 dispute, it is reversible error not to give a tendered instruction on a lesser- included offense). [20] All in all, given the trial court’s misapprehension about when the intent to commit a felony or theft must exist for burglary, along with the presence of substantial evidence supporting competing reasonable inferences about Collins’s intent upon entry, we conclude that failing to give the lesser-included instruction was rever

2015Carter contends that the trial court erred by denying his request that the jury receive an instruction on the lesser-included offense of Class C felony burglary, i.e., that he merely broke and entered a building or structure with intent to commit a felony therein. [19] To determine whether a trial court should have given a lesser-included instruction, we must apply the three-part test established by our Supreme Court in Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995).

1997See Lynch, 571 N.E.2d at 539 (holding that “the lesser included instruction [on involuntary manslaughter] will be warranted only if there is a serious evidentiary dispute about what [defendant] intended to do — kill or batter”).

1995Id.

2012See e.g., McNary v. State, 428 N.E.2d 1248, 1250-51 (Ind. 1981) (holding that where defendant raised alibi defense to crime and evidence established that he was either guilty of the charged offense or no offense at all, giving of lesser included offense instruction would have erroneously allowed the jury to speculate on a factual scenario with no evidentiary basis and opened the door to a compromise verdict).

2011See Wright v. State, 690 N.E.2d 1098, 1108 (Ind.1997) (holding that to give a lesser included offense instruction when there is no serious evidentiary dispute about the element distinguishing the two offenses “would be to improperly encourage the jury to reach a compromise verdict.”); Leon v. State, 525 N.E.2d 331, 332 (Ind.1988) (holding that if the evidence on an element distinguishing the greater offense from the lesser offense “is sufficient and is not in serious dispute, the trial court should refuse the lesser included instruction to avoid the possibility of a compromise verdict.”); McNa

2008See Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir.1989) (“That the law is unsettled on a point does not mean the legal basis for arguing the point is unavailable”).

2008See Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir.1989) ("That the law is unsettled on a point does not mean the legal basis for arguing the point is unavailable").

2018The Indiana Supreme Court has held that “a trial court does not err when it refuses to instruct the jury as to a lesser- included offense in a prosecution for murder where the defense of insanity is used to disprove intent to commit the greater offense” and that, “[w]hile [a defendant] would be entitled to a lesser included instruction if a serious evidentiary dispute existed about the level of his mens rea, his interposition of the insanity offense does not by itself raise such a dispute.” Wilson v. State, 697 N.E.2d 466, 475 (Ind. 1998) (citations omitted) (holding that, “[b]ecause the insan

2012In concluding the trial court correctly refused Wilson’s reckless homicide instruction, this Court said, “[bjecause a successful insanity defense would make Wilson nonculpable for any offenses he may have committed, the insanity defense cannot be the mechanism to demonstrate dispute entitling him to a lesser included instruction.” Id. at 475 .

2016See, e.g., Autrey, 700 N.E.2d at 1141 (holding that defense was not ineffective for opting for an “all or nothing” trial strategy over tendering a lesser included offense instruction); Page, 615 N.E.2d at 895-96 (holding that defense counsel’s failure to request a lesser included instruction did not constitute ineffective assistance of counsel); Brown v. State, 24 N.E.3d 529 , 535 (Ind. Ct. App. 2015) (holding that defense counsel’s failure to tender a jury instruction on Class A misdemeanor criminal conversion as a lesser-included offense of Class D felony theft was a reasonable, all-or-nothi

2014In Autrey v. State, our Supreme Court held that, when trial counsel did not request a lesser included instruction on voluntary manslaughter due to an intentional and tactical decision to pursue a self-defense strategy, the strategic decision did not constitute ineffective assistance of counsel. 700 N.E.2d at 1140 .

2023The True court echoed the Watts Court’s observations regarding the potential impact of a lesser included instruction on a defendant’s “all or nothing” strategy, stating that “such a defense can be improperly undermined by the State obtaining a lesser included offense instruction where the evidence does not warrant such an instruction[.]” Id. at 1110 (emphasis added).

2023The True court continued that, under Watts, “neither the State nor a defendant may seek to have a jury enter a ‘compromise’ verdict, based on the giving of a lesser included offense instruction that is not supported by the evidence.” Id. (emphasis added).

2019According to Strickland, therefore, his trial counsel should have also requested an instruction on abandonment. [13] To prevail on a claim of ineffective assistance for failure to tender a jury instruction, the defendant “must prove that he was entitled to the defense and that he was prejudiced when the jury was not instructed on the defense.” Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997).

2019To justify a lesser included instruction, “there must exist ‘evidence before the jury such that it could conclude the lesser included offense was committed while the greater Court of Appeals of Indiana | Opinion 19A-PC-984 | December 19, 2019 Page 30 of 32 one was not.’” Id. (quoting Pedrick v. State, 593 N.E.2d 1213, 1216 (Ind. Ct. App. 1992), reh’g denied). [39] During closing argument, Davis’s trial counsel argued for an all-or-nothing approach and asserted that the prosecutor reached for “that brass ring,” “went right for the A felony,” and “[h]er reach has exceeded her grasp.” Trial Trans

2016See, e.g., Autrey, 700 N.E.2d at 1141 (holding that defense was not ineffective for opting for an “all or nothing” trial strategy over tendering a lesser included offense instruction); Page, 615 N.E.2d at 895-96 (holding that defense counsel’s failure to request a lesser included instruction did not constitute ineffective assistance of counsel); Brown v. State, 24 N.E.3d 529 , 535 (Ind. Ct. App. 2015) (holding that defense counsel’s failure to tender a jury instruction on Class A misdemeanor criminal conversion as a lesser-included offense of Class D felony theft was a reasonable, all-or-nothi

2015If a trial court makes a factual finding regarding the existence or lack of a “serious evidentiary Court of Appeals of Indiana | Memorandum Decision 02A03-1403-CR-108 | March 30, 2015 Page 12 of 24 dispute,” we review that decision for an abuse of discretion. 7 Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997). [20] Here, at the close of trial and outside the presence of the jury, Carter’s attorney asked that she be permitted to tender a lesser-included instruction of burglary as a Class C felony, noting that the “only difference is the additional element of injury.” Tr. at 302.

2015See also Taylor v. State, 840 N.E.2d 324 , 337 n.4 (Ind. 2006) (addressing a petitioner’s claim of ineffective assistance because trial counsel failed to tender a lesser included instruction and noting that petitioner might conceivably have been entitled to an instruction if he was able to satisfy the requirements of Wright v. State, 658 N.E.2d 563 (Ind. 1995)). [13] The record reveals that Sipili testified that Taylor said: “I swear to God after – after work or something I’ll kill you and them niggas or something like that.” Trial Transcript at 340.

2011See Wright v. State, 690 N.E.2d 1098, 1108 (Ind.1997) (holding that to give a lesser included offense instruction when there is no serious evidentiary dispute about the element distinguishing the two offenses “would be to improperly encourage the jury to reach a compromise verdict.”); Leon v. State, 525 N.E.2d 331, 332 (Ind.1988) (holding that if the evidence on an element distinguishing the greater offense from the lesser offense “is sufficient and is not in serious dispute, the trial court should refuse the lesser included instruction to avoid the possibility of a compromise verdict.”); McNa

2011See Wright v. State, 690 N.E.2d 1098, 1108 (Ind.1997) (holding that to give a lesser included offense instruction when there is no serious evidentiary dispute about the element distinguishing the two offenses “would be to improperly encourage the jury to reach a compromise verdict.”); Leon v. State, 525 N.E.2d 331, 332 (Ind.1988) (holding that if the evidence on an element distinguishing the greater offense from the lesser offense “is sufficient and is not in serious dispute, the trial court should refuse the lesser included instruction to avoid the possibility of a compromise verdict.”); McNa

1998See Gonzales v. State, 642 N.E.2d 216, 216-17 (Ind.1994); Matheney, 583 N.E.2d at 1206 ; Rowe, 539 N.E.2d at 477 .