By Ember S. Tilton
The State charged defendant with domestic assault. Defendant lived with the complaining witness at a residential facility. Defendant was apparently schizophrenic. The complaining witness testified at trial that he kicked Defendant's hand and said something to the effect of defendant "needed a kick in the ass." The next thing complaining witness knows it's lights out. A staff member testified that defendant dropped the complaining witness with one blow. The State rested.
Now, defendant argued that they were not really "household members" as the statute for domestic assault required. See they each had their own rooms and it was more like a boarding house or a hospital or something. The State agreed and asked the Court to proceed on a simple assault charge. Defendant agreed that simple assault was a lesser-included offense but that it was a bit late in the game to be adding a second charge. Over defendant's objection, the judge gave a simple-assault instruction and defendant was promptly convicted by the jury.
Now, defendant appeals his conviction. He asks the Supreme Court to reverse the trial court's ruling claiming that it couldn't be simple assault, because the elements of the crime are different. Specifically, Defendant points to the word "willfully." This is because Simple Assault must be done willfully, meanwhile Domestic Assault can be done "purposely." SCOV is not entirely convinced. According to them, (and your humble blogger agrees) these words are used interchangeably.
Next, defendant argues that the trial court cannot just add (or switch in) a lesser-included offense halfway through trial. Now, that might seem like a rule of fairness to you, but it shouldn't come as much of a surprise to lawyers, because there is a law that says that this is exactly how it works, "Upon indictment or information for any offense, a person may be convicted of a lesser included offense if supported by the evidence. If requested by either party, the jury shall be informed of the lesser included offense if supported by the evidence." So says this statute.
Nothing says if the defendant objects then you can't switch to a lesser included. The real fairness issue is that defendant wasn't prepared to defend against the charge. Well, a lesser-included offense is just that: it's an offense that is included in the charge, but is missing an element included in the bigger offense. For example, let's look at assault with a deadly weapon. If the state fails to prove there was a deadly weapon used and the defendant is convicted of simple assault, where's the unfairness? SCOV searches but can't find any cases to support defendant's position.
So, in the end Defendant's conviction is affirmed. SCOV makes it clear that you can be convicted of a lesser-included offense when you are charged with domestic assault and sometimes it really is just that simple. Yes, I know it's a terrible pun, but if you have a problem with puns, you probably shouldn't be reading this blog.