refusal instruction in Indiana

2012Notwithstanding the strong support in Indiana case law for the concept óf a “reasonable theory of innocence” instruction, in actual fact, the refusal of such instruction has rarely been found to be error, often based on the presence of evidence liberally deemed to be “direct” rather than “circumstantial.” See, e.g., Davenport, 749 N.E.2d at 1149-50 (finding direct evidence where son observed his mother being beaten by the defendant, sought to intervene but was struck by defendant and went to bed, and the next day the mother was found murdered by strangulation, which was not witnessed by the so

1996See Clemens v. State, 610 N.E.2d 236 (Ind.1993), reh. denied.

1992If it could do so the refusal of the instruction is error." Gibson v. State (1987), Ind., 516 N.E.2d 31, 32 (quoting Williams v. State (1980), 273 Ind. 105, 108-09 , 402 N.E.2d 954, 956 ).

1992If it could do so the refusal of the instruction is error." Gibson v. State (1987), Ind., 516 N.E.2d 31, 32 (quoting Williams v. State (1980), 273 Ind. 105, 108-09 , 402 N.E.2d 954, 956 ).

1983Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived." However, for reasons stated in Davis v. State, (1976) 265 Ind. 476 , 355 N.E.2d 836 , this issue must be considered on its merits: "The State argues that this Court is precluded from considering the merits of appellant's contentions because appellant failed to include in the argument section of his brief a verbatim account of his objections to the refusal of his instruction and to the giving of the court's instructions.

1983Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived." However, for reasons stated in Davis v. State, (1976) 265 Ind. 476 , 355 N.E.2d 836 , this issue must be considered on its merits: "The State argues that this Court is precluded from considering the merits of appellant's contentions because appellant failed to include in the argument section of his brief a verbatim account of his objections to the refusal of his instruction and to the giving of the court's instructions.

2014Hubbard v. State, 469 N.E.2d 740, 742 (Ind.1984) (quoting Williams v. State, 273 Ind. 105, 108-09 , 402 N.E.2d 954, 956 (1980)).

2012Notwithstanding the strong support in Indiana case law for the concept óf a “reasonable theory of innocence” instruction, in actual fact, the refusal of such instruction has rarely been found to be error, often based on the presence of evidence liberally deemed to be “direct” rather than “circumstantial.” See, e.g., Davenport, 749 N.E.2d at 1149-50 (finding direct evidence where son observed his mother being beaten by the defendant, sought to intervene but was struck by defendant and went to bed, and the next day the mother was found murdered by strangulation, which was not witnessed by the so

2012While this Court in Spears, which reversed a murder conviction, evaluated the necessity of giving a “reasonable theory of innocence” instruction by considering whether there was any direct evidence showing the actus reus of a charged crime, rather than just direct evidence of any element of the crime, 272 Ind. at 636-40 , 401 N.E.2d at 334-35, this distinction has not yet been applied in any of our ensuing cases.

2012Notwithstanding the strong support in Indiana case law for the concept óf a “reasonable theory of innocence” instruction, in actual fact, the refusal of such instruction has rarely been found to be error, often based on the presence of evidence liberally deemed to be “direct” rather than “circumstantial.” See, e.g., Davenport, 749 N.E.2d at 1149-50 (finding direct evidence where son observed his mother being beaten by the defendant, sought to intervene but was struck by defendant and went to bed, and the next day the mother was found murdered by strangulation, which was not witnessed by the so

2001Hopkins relies on Peterson v. State, 699 N.E.2d 701, 706 (Ind.Ct.App. 1998), where we found improper the refusal of an instruction Peterson had offered to supplement the trial court's instruction on accomplice liability, The trial court's instruction was inadequate because it was "cursory" and "focused on the law that a person could be convicted as an accomplice regardless of whether the other person had been prosecuted or convicted.

2001Thus, the trial court's instruction failed to focus on the knowledge and conduct of the defendant and wholly failed to instruct that the defendant must have engaged in some affirmative conduct in aiding or inducing the offense" Id.

1999K Mart Corp. v. Beall, 620 N.E.2d 700, 703 (Ind.Ct.App.1993).

1997When reviewing a judge’s refusal of an instruction, the court applies a three part test. “1) whether the instruction correctly states the law; 2) whether there was evidence in the record to support the giving of the instruction; and 3) whether the substance of the tendered instruction is covered by other instructions which are given.” Reinbold v. State, 555 N.E.2d 463, 466 (Ind.1990) overruled in part on other grounds by 658 N.E.2d 563, 570 .

1996See also Strong v. State, 591 N.E.2d 1048, 1050 (Ind.Ct.App.1992) (Trial court erred in refusing instruction on entrapment defense), trans. denied.

1996Jewell asserts that the refusal of this instruction denied him his right to have the jury instructed on any theory or defense having some foundation in the evidence, citing Toops v. State, 643 N.E.2d 387, 389 (Ind.Ct.App.1994) (Trial court erred in refusing instruction on the necessity defense).

1992If it could do so the refusal of the instruction is error." Gibson v. State (1987), Ind., 516 N.E.2d 31, 32 (quoting Williams v. State (1980), 273 Ind. 105, 108-09 , 402 N.E.2d 954, 956 ).