Issue: Did defense counsel’s argument on alternate offense trigger an amendment to the indictment?
Facts: Defendant was charged with Aggravated Assault for allegedly shooting at the victim. After a bench trial, Defense Counsel argued the conduct did not constitute Aggravated Assault but might be Reckless Endangerment, and submitted case law on Reckless Endangerment. The Trial Court found Defendant not guilty of Aggravated Assault but guilty of Reckless Endangerment.
Appellate Decision: The intermediate court affirmed the conviction. Although Reckless Endangerment is not a lesser-included offense of Aggravated Assault, the court agreed that “Defendant actively sought the trial court’s consideration of reckless endangerment” thus triggering an amendment to the indictment to include that count.
Review Granted: July 18, 2018.
Prediction: Ben thinks the Supreme Court will reverse. Although there may be a strategic reason to propose conviction on a lesser offense, argument that conduct better constitutes an uncharged, non-lesser-included offense is also a valid complete defense to the charged offense. Trial courts should not presume a defendant is waiving his right to be tried only as charged without clearer evidence that the defense is not simply explaining why the charged offense does not fit the crime.