Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 1 of 26

Attorneys for Appellant

Valerie K. Boots

Talisha Griffin

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Indiana Attorney General

George P. Sherman

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Larry Lee Jackson, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 26, 2023

Court of Appeals Case No.

22A-CR-2955

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

Trial Court Cause No.

49D32-2112-F1-37122

Opinion by Chief Judge Altice

Judges May and Foley concur.

Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 2 of 26

Case Summary

[1] Larry L. Jackson, Jr. was charged with attempted murder and, following a jury 

trial, was convicted of Level 3 felony aggravated battery. He appeals raising the 

following three restated issues:

I. Did the trial court err when it gave, sua sponte and over 

Jackson’s objection, a jury instruction on aggravated battery as a 

lesser included offense of attempted murder?

II. Did the trial court abuse its discretion when it denied 

Jackson’s tendered self-defense instruction?

III. Did the trial court abuse its discretion when it admitted 

certain evidence over Jackson’s objection?

[2] We affirm.

Facts & Procedural History

[3] In December 2021, Jackson, sixty years old, was living in apartment 501 in 

Lugar Towers in Indianapolis. The Lugar Towers complex is known to be a 

“high crime” area, with Indianapolis Metropolitan Police Department (IMPD) 

receiving calls almost nightly. Transcript Vol. 2 at 183, 198. Jackson’s 

apartment, on the fifth floor, was the first apartment to the left of the elevator. 

There are fifteen stories in the towers, with cameras on every floor except floors 

thirteen, fourteen, and fifteen. There are no cameras in the elevators. 

[4] According to Jackson, a non-tenant named Adrian King Taylor, known to

Jackson as “King,” was often seen loitering inside the building, harassing 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 3 of 26

people for money or drugs, and sometimes robbing or beating up tenants. 

Transcript Vol. 3 at 75. Jackson reported that Taylor had robbed and threatened

him on a couple of occasions in November 2021, and Jackson gave him money, 

which worked to “defuse the situation.” Id. 

[5] In the early morning hours of December 4, 2021, there was an encounter 

between Jackson and Taylor, recorded on a surveillance camera on the fifth 

floor, in which Jackson stabbed Taylor in the chest. Jackson ran down the 

stairs and out of the building, discarding the knife and walking toward a nearby 

gas station.

[6] Meanwhile, Taylor walked toward the stairwell but came back and got on the 

elevator and made his way out of the building. He was in the backseat of a 

vehicle, with its door open, when emergency responders arrived. IMPD Officer 

Amanda Tatomirovich was the first to make contact with Taylor, who was 

grabbing his chest and was in distress, unable to clearly speak his name. Officer 

Tatomirovich performed a pat down on Taylor before he was taken away by 

ambulance, and no weapons were found, only some loose change in his hands 

and pockets. Forty-two-year-old Taylor received emergency surgery and 

survived.

[7] IMPD Officer Jamie Hadley also responded to the dispatch about the stabbing, 

and she saw Jackson, who matched the description of the suspect, on foot a 

short distance from Lugar Towers. Officer Hadley stopped Jackson, whom she 

described as very calm and cooperative and not startled about being stopped by 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 4 of 26

police. Jackson was transported to a police station. Officers looked for a knife 

in the area where Jackson had been but did not find one.

[8] IMPD Detective Corey Shaffer conducted a recorded interview of Jackson. 

Jackson told Detective Shaffer that there had been a sudden banging on his

apartment door, which came open, and Taylor entered, threatening Jackson 

that he was going to shoot him if Jackson did not “give [him] something.” 

Exhibit Vol. at 29 (State’s Exhibit 24, transcript of interview). Jackson described 

that Taylor told him that he better “go get [him] some Katy”1 or else Taylor 

would “shoot [Jackson’s] motherf*cking ass.” Id. Jackson told Detective 

Shaffer that, to get Taylor out of his apartment, he agreed, and Taylor handed 

him a dollar bill and some change, totaling about five dollars. Jackson then 

went “straight downstairs” to the lobby, where he went outside and had a 

cigarette. Id. at 34. 

[9] Jackson stated that when he came back inside to go to his apartment, Taylor

was already in the elevator and that he tried to give the money back to Taylor 

but he refused it. Jackson described that Taylor had his “hands balled up,” and 

was “getting ready to try to hurt” Jackson, so Jackson, while on the elevator, 

pulled out the knife from his pocket and “poked” Taylor as Taylor was coming 

toward him. Id. at 36, 40. Jackson reported that, when the elevator opened on

the third or fourth floor, he ran down a stairwell and out of the building, with 

1 The record indicates Katy or Katie “is slang for a drug.” Transcript Vol. 3 at 39. It originally referred to 

commercially produced synthetic marijuana but now “could be a number of different” drugs. Id. at 40.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 5 of 26

Taylor chasing him. Jackson told Detective Shaffer that he did not go to the

fifth floor. Jackson said that he dropped the knife in an alley. Detective Shaffer 

looked for the knife, but it was never found. 

[10] On December 8, 2021, the State charged Jackson with attempted murder, 

alleging that Jackson attempted to kill Taylor by “stabbing Adrian Taylor in the 

chest with the specific intent to kill Adrian Taylor.” Appellant’s Appendix at 23. 

[11] Prior to trial, Jackson sought to exclude the second portion of Officer 

Tatomirovich’s body cam footage (Exhibit 15), which showed Taylor bloodied

in the back of the vehicle and then falling to the ground as he stood up, 

requiring assistance onto the stretcher. Jackson argued that it had no 

evidentiary value and was highly prejudicial. The State maintained that the 

footage showing Taylor’s deteriorating condition was “very relevant” because

Taylor’s injuries initially did not appear too serious on the surveillance video. 

Transcript Vol. 2 at 132. The State explained that the footage was important to 

illustrate to the jury “how someone who is walking and talking on the 

surveillance video after the incident, all of a sudden is minutes from death by 

the time he gets to the hospital.” Id. After viewing the portion of the video at 

issue, the court found that its relevancy outweighed any prejudice. 

[12] Also prior to trial, Jackson argued for the admission of statements he made 

about Taylor while alone in the interview room. The State intended to offer 

into evidence only that portion of the video that contained the interview

(Exhibit 23) – stopping the video when the detective left the room. Jackson 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 6 of 26

wanted the full video admitted under the doctrine of completeness, noting that 

Jackson was unaware he was being recorded and that the part not included in 

Exhibit 23 showed Jackson’s “subjective belief [about Taylor] at the time.” Id. 

at 137. The court found that Jackson’s statements were volunteered, not within 

a hearsay exception, and not admissible under the rule of completeness, but 

noted that the statements “do reflect [Jackson’s] state of mind” and that defense 

could present them in its case-in-chief, if desired. Id. at 139. 

[13] A jury trial was held on October 25, 2022. At trial, Lugar Towers surveillance 

camera footage, without sound, was admitted as State’s Exhibit 19. It showed

the two men getting on and off the elevators in the lobby and on the fifth floor, 

sometimes together and sometimes not, a number of times between 3:42 and 

3:57 a.m. At 3:56 a.m., they both exit the elevator on the fifth floor and are 

seen standing next to it. Jackson is seen picking up small, indiscernible items 

off the floor, and trying to hand them to Taylor, who jerks his hand away and 

appears to refuse the items. Taylor, saying something to Jackson, begins to turn 

away, then turns back to Jackson, who suddenly reaches into his hoodie pocket,

pulls out a knife, stabs Taylor in the chest, and runs away. Taylor leaves the 

camera view for some seconds then returns, pulls up his shirt to show dripping 

blood, talks and shows the injury to someone else, and then gets on the 

elevator. Taylor is seen getting off the lobby elevator and walking out of the 

building at 3:59 a.m.

[14] Detective Shafer testified that, contrary to Jackson’s statement that the incident 

occurred in the elevator, the stabbing occurred on the fifth floor in the hallway 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 7 of 26

near the elevator. Further, Taylor did not chase Jackson out of the building as 

Jackson had reported. The recorded interview with Detective Shaffer, which 

video ended when the detective left the room, was offered and admitted into 

evidence as Exhibit 23, over Jackson’s objection.2

[15] During Officer Tatomirovich’s testimony, the State sought to admit her

bodycam footage as Exhibit 15. Jackson objected to the admission of the 

second portion that showed Taylor’s deteriorating condition before emergency 

personnel arrived. The court admitted the first portion of Exhibit 15 without 

objection and the second portion over Jackson’s objection.

[16] Bryan Carr, M.D., the trauma surgeon who treated Taylor, testified that Taylor 

was minutes from dying when he arrived at the hospital. Surgery revealed that 

Taylor had a hole, about half an inch in size, in the left side of his heart and “a 

massive amount of hemorrhage” in a tissue sack surrounding the heart. 

Transcript Vol. 2 at 205. Taylor was on a ventilator for a period and required a 

second surgery. He was in the hospital for approximately fourteen days. 

[17] Jackson testified about the series of events, describing that he was chopping 

onions in his kitchen when Taylor banged on his apartment door and entered, 

despite Jackson trying to brace the door shut. He explained that he feared 

Taylor because he had witnessed Taylor beat up other people in the building at 

least twice and that Taylor had robbed Jackson on a couple of prior occasions. 

2 Exhibit 24 was a transcription of Exhibit 23 and was admitted for demonstrative purposes.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 8 of 26

Jackson stated that he and Taylor sat at his table, and Taylor gave him some 

dollars and change, instructing Jackson to go find him some “Katie or some 

crack or something.” Transcript Vol. 3 at 68. 

[18] Jackson stated that he left his apartment, with a knife in his pocket, and first

took the elevator up to the thirteenth floor, looking for someone he believed 

might have drugs that he could buy for Taylor, and, unsuccessful with that, he 

took the elevator down to the first floor and exited the building briefly. He said 

that, having no success finding drugs, he got back on the elevator to return to 

his apartment and encountered Taylor. They exited together on the fifth floor, 

and Jackson testified that he tried to hand Taylor his money back, but Taylor

refused it. 

[19] Jackson testified, “[Taylor] balled his fist up” and “hit my arm” and said “give 

me some motherf*cking money, or I’m going to shoot your motherf*cking ass.” 

Id. at 72, 76. Jackson testified that he “just panicked,” as he was afraid of 

Taylor, and “poked” him with the knife. Id. at 76, 93. Jackson acknowledged 

that did not see a weapon on Taylor but “truly believed he had a weapon,” 

adding that Taylor “has threatened me so many times.” Id. at 73. Jackson 

testified that he did not intend to kill Taylor. Id. at 76.

[20] After the parties rested, the jury was excused and final jury instructions were 

discussed. The trial court asked if anyone objected “to the Court’s proposed 

finals.” Id. at 126. Jackson objected to Instructions 8 and 9, which defined the 

charged offense of attempted murder and stated that aggravated battery, also 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 9 of 26

defined in the instructions, was a lesser included offense of which the jury could 

find Jackson guilty if the necessary elements were proven. Jackson’s counsel 

stated repeatedly that the defense did not want “any mention of aggravated 

battery” as Jackson did not want “any lesser” offenses mentioned at all. Id. at 

127. The exchange with defense counsel continued, with the court asking for 

the reason that Jackson’s counsel did not believe a lesser included instruction 

should be given:

Defense Counsel: Yes. I believe that even though a lesser Ag Bat 

can be -- I think there is a little bit of mixed caselaw on whether it 

is inherently included or not, but that aside, the elements of 

aggravated battery are almost identical to the attempt murder 

that we’re dealing with. By giving that instruction, I feel that this 

is going to reduce the burden of the State. They have a high 

burden, which is, to me, the specific intent for attempt murder, 

and since there are not really that much difference, if any, 

between the two, between the Ag Bat and the attempted murder, 

then I think, by offering an aggravated battery, that will be like a 

compromise, offering the jury a compromise verdict, which is --

makes it easier for the State.

Court: Okay. And do you believe as a matter of strategy, that 

you wish not -- the aggravated battery not be given?

Defense Counsel: Correct.

Id. at 128. The trial court asked for the State’s position, with the State 

responding:

I think it’s appropriate given the facts, Judge. I think this is a 

factually inherent -- or factually included lesser. As [defense 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 10 of 26

counsel] said, the elements are very similar. The facts are all the 

same. And if the Court finds that there’s been a serious 

evidentiary dispute about an element, which in this case, our 

understanding is it’s going to be the mens rea, the specific intent 

to kill, then the lesser included would be -- would be appropriate 

as a factually included lesser. So we do think it’s appropriate to 

give.

Id. The court stated that the evidence reflected an evidentiary dispute as to 

Jackson’s intent, which supported giving the lesser included aggravated battery 

instruction. 

[21] The court asked Jackson’s counsel if he had discussed with Jackson “the risk he 

takes by an all-or-nothing strategy,” and counsel stated he had, but would do so 

again. Id. Following a recess, counsel for Jackson stated that he and Jackson 

had discussed the two charges and the penalties for each and that “[Jackson] 

told me that he wants to go all or nothing.” Id. at 131. The court, speaking 

directly to Jackson, asked if that is how he wished to proceed, and he responded 

in the affirmative. 

[22] After reviewing caselaw off the record, the court determined that “there is not 

an absolute right to refuse a valid lesser included offense instruction” where, as 

here, “there is a serious evidentiary dispute” on the element distinguishing the 

two offenses, in this case, the mens rea. Id. at 135.

The aggravated battery, as the caselaw’s indicated, is an 

inherently included offense because the elements are virtually 

identical with the exception of the specific intent to kill. Court 

notes that aggravated battery doesn’t require a touching [and] . . . 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 11 of 26

simply requires an inflicting of injury. And the language of the 

statute -- or charging information in this particular case is that the 

Defendant intentionally -- attempted to intentionally kill another 

human being by the stabbing. 

So the Court does believe, one, it’s inherently included; secondly, 

that it is factually included; third, that based on the evidence the 

Court’s previously cited, that there is a serious evidentiary 

dispute.

Id. at 136. The court gave the lesser included aggravated battery instruction 

over Jackson’s objection.

[23] Jackson also took issue with the court’s decision regarding what self-defense 

instruction would be given. Specifically, the court determined that it would 

give the court’s self-defense instruction, Final Instruction 3, which was 

consistent with pattern jury instruction 10.03. The court declined to give 

Jackson’s tendered instructions 1 and 6, finding that instruction 1 was already 

covered by the court’s Final Instruction 3 and that instruction 6 (Defense

Instruction 6) contained language that the Indiana Supreme Court had 

determined was unnecessary and misleading. 

[24] The jury found Jackson guilty of Level 3 felony aggravated battery. The court 

sentenced him to eight years with six executed and two suspended with no 

probation. Jackson now appeals. Additional facts will be supplied as needed.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 12 of 26

Discussion & Decision

I. Aggravated Battery Instruction

[25] It is well settled that when a party asks a trial court to instruct the jury on an 

alleged lesser included offense of the crime charged, the court must conduct a 

three-part analysis to determine whether the instruction is appropriate. Watts v. 

State, 885 N.E.2d 1228, 1231 (Ind. 2008).

First, the trial court must compare the statute defining the crime 

charged with the statute defining the alleged lesser included 

offense to determine if the alleged lesser included offense is 

inherently included in the crime charged. Second, if a trial court 

determines that an alleged lesser included offense is not 

inherently included in the crime charged under step one, then it 

must determine if the alleged lesser included offense is factually 

included in the crime charged. If the alleged lesser included 

offense is neither inherently nor factually included in the crime 

charged, the trial court should not give an instruction on the 

alleged lesser included offense. Third, if a trial court has 

determined that an alleged lesser included offense is either 

inherently or factually included in the crime charged, “it must 

look at the evidence presented in the case by both parties” to 

determine if there is a serious evidentiary dispute about the 

element or elements distinguishing the greater from the lesser 

offense and if, in view of this dispute, a jury could conclude that 

the lesser offense was committed but not the greater. “[I]t is 

reversible error for a trial court not to give an instruction, when 

requested, on the inherently or factually included lesser offense” 

if there is such an evidentiary dispute.

Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (quoting Wright v. State, 658 

N.E.2d 563, 566-67 (Ind. 1995)).
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 13 of 26

[26] Here, Jackson does not dispute that aggravated battery was a lesser included

offense of attempted murder or that a serious evidentiary dispute existed as to 

the mens rea element, that is, whether Jackson possessed specific intent or 

whether he acted knowingly and intentionally. Rather, Jackson’s argument is 

that the Wright three-part analysis applies only when a party has requested an 

instruction – and not when, as here, a trial court gives a jury instruction sua 

sponte. 

[27] This court faced a similar instructional challenge in Washington v. State, 685 

N.E.2d 724 (Ind. Ct. App. 1997), where the defendant was charged with 

murder and, over the defendant’s objection, the trial court sua sponte instructed 

the jury on voluntary manslaughter, of which he was convicted. In addressing 

whether it was proper to give the sua sponte instruction, this court applied the 

Wright test, first finding that, under step one of the test, voluntary manslaughter 

is an inherently included offense of murder3 and, under the third step, there was 

“sufficient evidence of sudden heat” to warrant the giving of the instruction.4

 

3 The Washington court cited Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994), for the proposition that 

“voluntary manslaughter is simply murder mitigated by sudden heat.” Our Supreme Court later clarified in 

Watts v. State that, “even though under Indiana law voluntary manslaughter is a lesser-included offense of 

murder, a conviction for murder does not mean that a defendant could also have been convicted of voluntary 

manslaughter” and “[s]udden heat must be separately proved.” 885 N.E.2d 1228, 1233 (Ind. 2008). 

“Therefore, if there is no serious evidentiary dispute over sudden heat, it is error for a trial court to instruct a 

jury on voluntary manslaughter in addition to murder,” and to the extent that Griffin and a number of other 

cases were inconsistent with that, they were overruled. Id. The Watts Court’s overruling of Griffin does not 

affect the validity of Washington’s relevancy to our case.

4 Judge Staton dissented. He found that, contrary to the majority’s conclusion, there was “an absolute 

absence” of a serious evidentiary dispute regarding Washington’s sudden heat and that the instruction on 

voluntary manslaughter over the defendant’s timely objection was reversible error. 685 N.E.2d at 729. 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 14 of 26

Id. at 728. The Washington court thus applied the Wright analysis even though 

no party had requested the instruction.5

 Jackson urges that Washington was 

“wrongly decided” and asks us not to repeat that court’s mistake. Reply Brief at

5.

[28] However, Washington was not alone in applying the Wright analysis when a trial 

court sua sponte gave a lesser included instruction. In Ross v. State, 877 N.E.2d 

829 (Ind. Ct. App. 2008), trans. denied, this court, while addressing the denial of 

petition for post-conviction relief, evaluated whether the defendant received 

ineffective assistance of trial counsel for counsel’s failure to object to the trial 

court’s sua sponte instruction on Class A felony voluntary manslaughter as a 

lesser included offense of murder. In Ross, the defendant’s argument was that 

the only proper voluntary manslaughter instruction that could have been given 

was for Class B felony manslaughter (because the offense is a Class A felony if 

it is committed by means of a deadly weapon and the charging information 

against Ross did not specify that he committed murder by means of a deadly 

weapon).

[29] Although the instruction was given sua sponte, the Ross court stated that, per 

Wright, “[f]or jury instruction purposes, if one offense is inherently included 

within another, it is proper for a trial court to give an instruction on the lesser 

5 This includes the dissent. That is, although Judge Staton disagreed with the majority about the existence of 

a serious evidentiary dispute as to sudden heat and opined that “[t]he court-induced voluntary manslaughter 

instruction undermined the defendant’s defense of self-defense,” he explained that “the reversible error here 

was created by the trial court failing to follow the third prong of the analysis set forth in Wright.” Id. 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 15 of 26

included offense if there is a serious evidentiary dispute regarding the element 

that distinguishes the greater offense from the lesser offense.” Id. at 835. Thus,

as in Washington, the Ross court applied Wright in evaluating the 

appropriateness of the court’s sua sponte instruction. The crux of the 

discussion – about the appropriateness of the sua sponte lesser included 

instruction – concerned the existence, or not, of any serious evidentiary dispute 

as to sudden heat. Ultimately, the Ross court determined that, based on the 

ineffective assistance of counsel standard of review, the defendant failed to 

establish that his counsel was ineffective for failing to lodge an objection to the 

Class A felony instruction.6 Washington and Ross lead us to the conclusion that, 

regardless of whether a party requested the lesser included instruction or it was 

given sua sponte, the relevant inquiry is whether the instruction was properly 

given pursuant to the Wright analysis.

7

6 In Ross, the trial court proposed giving a voluntary manslaughter instruction. The State did not object, but 

Ross’s counsel did, asserting there was no evidence of sudden heat. The trial court overruled this objection 

and gave a pattern jury instruction for both Class A felony and Class B felony voluntary manslaughter. Trial 

counsel did not lodge a separate objection to the inclusion of Class A felony voluntary manslaughter in the 

instruction. 

7 In Young v. State, 30 N.E.3d 719, 728 (Ind. 2015), the Court addressed the principle that defendants must 

have “fair notice” of the charges of which they may be convicted, including inherently or factually included 

lesser offenses. There, two defendants were charged with murder by a shooting, and at the conclusion of the 

evidence at the bench trial, the trial court found that the evidence showed that defendants had planned a 

group beating of the victim but that there was insufficient evidence that defendants knew any member of the 

group would shoot the victim. The court dismissed the murder charges but left “all the possible batteries on 

the table” as lesser included offenses -- although neither party had requested consideration of such. Id. at 

721. Following argument, the court found the defendants guilty of Class B felony attempted aggravated 

battery for planning the beating. On transfer, our Supreme Court observed that the inherent and factual 

inclusion tests established in Wright “are a necessary piece of the larger fair-notice puzzle” but are not always 

dispositive, concluding that “fair notice” was lacking in that case because, although the elements of 

attempted aggravated battery were inherently included in murder, the convictions were based on a 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 16 of 26

[30] In further support of his position, Jackson makes the broader policy argument 

that if a trial court sua sponte instructs a jury on a lesser included offense, over a 

defendant’s objection, the court fails to act in an impartial manner because the 

court is interfering with a party’s strategic maneuvering. His argument in that 

regard is not lost on us. Clearly, giving a lesser included instruction can affect a 

defendant’s desire to pursue an all-or-nothing trial strategy. 

[31] Our Supreme Court recognized this consequence in Watts. There, the Court

determined that defense counsel’s objection to a voluntary manslaughter 

instruction should have been sustained because there was no serious evidentiary 

dispute over sudden heat. In its decision, the Court expressly acknowledged 

that lesser included instructions may detrimentally affect a defendant’s trial 

strategy: 

One legitimate trial strategy for the defendant in a murder trial is 

an “all-or-nothing” one in which the defendant seeks acquittal 

while realizing that the jury might instead convict of murder. In 

a situation where a jury must choose between a murder 

conviction and an acquittal, the defendant might well be 

acquitted. But if the jury has voluntary manslaughter as an 

intermediate option, the defendant might be convicted of 

voluntary manslaughter as a “compromise.” Such a verdict is 

not appropriate if unsupported by any evidence of sudden heat; 

moreover, an unsupported voluntary manslaughter instruction 

completely different “means used” (beating) than was alleged in the charging informations (shooting). Id. at 

728. While Jackson does not raise a fair notice argument, we find that Young’s discussion of Wright

nevertheless informs our decision today, as it reflects that the Wright test is applicable in situations where the 

trial court acts sua sponte to propose consideration of lesser-included offenses.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 17 of 26

deprives the defendant of the opportunity to pursue a legitimate 

trial strategy.

885 N.E.2d at 1233 (emphases added). 

[32] A few years later, this court, in True v. State, 954 N.E.2d 1105 (Ind. Ct. App. 

2011), addressed the propriety of an instruction for Class A misdemeanor 

battery as a lesser included of Class D felony domestic battery, being given at 

the State’s request and over the defendant’s objection. The 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). The 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). Because

there was no serious evidentiary dispute as to whether the battery was 

committed in the presence of children (required by the Class D felony), the True

court found that the instruction “improperly invited the jury to reach a 

‘compromise’ verdict.” Id. at 1111. Watts and True suggest to us that it is when 

a lesser included instruction is not supported by the evidence that a defendant is 

improperly deprived of his choice to pursue an all-or-nothing strategy.

[33] Granted, in Watts and True, the State had made the request that the court give a 

lesser included instruction, making it distinguishable from here, where the 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 18 of 26

instruction was given sua sponte. However, the common thread woven 

throughout the cases, including when a lesser included instruction was given 

sua sponte, is whether – pursuant to the Wright analysis – a serious evidentiary 

dispute existed on the element distinguishing the lesser and greater offenses. 

[34] In sum, we agree with the State that, while trial courts are not required to give 

an instruction on a lesser included offense sua sponte, they are not precluded 

from doing so given the proper circumstances. Here, the trial court found, and 

it is undisputed, that a serious evidentiary dispute existed as to Jackson’s mens 

rea, that is, the distinguishing element between the charged attempted murder 

and the lesser aggravated battery. For the reasons discussed above, we find the 

trial court did not err in instructing the jury on aggravated battery.

II. Self Defense Instruction

[35] Jackson next claims that the trial court erred when it refused one of his tendered 

self-defense instructions. This Court reviews a trial court’s manner of 

instructing the jury for an abuse of discretion. Treadway v. State, 924 N.E.2d 

621, 636 (Ind. 2010). When reviewing a trial court’s refusal to give an 

instruction, the reviewing court looks to whether the tendered instruction 

correctly states the law, whether there is evidence in the record to support 

giving the instruction, and whether the substance of the proffered instruction is 

covered by other instructions. Id.

[36] “To employ self-defense, ‘a defendant must satisfy both an objective and 

subjective standard: he must have actually believed deadly force was necessary 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 19 of 26

to protect himself, and his belief must be one that a reasonable person would 

have held under the circumstances.’” Passarelli v. State, 201 N.E.3d 271, 276 

(Ind. Ct. App. 2023) (quoting Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007)), 

trans. denied. Here, the trial court gave Final Instruction 38 concerning selfdefense, which was based on pattern jury instruction 10.03.

9 No party objected 

to Final Instruction 3. However, as is relevant to this appeal, Jackson asked the 

court to also give his Defense Instruction 6, which the court refused. It stated:

With regard to the defense of self-defense, the existence of the 

danger, the necessity or apparent necessity of using force, as well 

as the amount of force required to resist the attack or criminal 

8 Final Instruction 3 read:

It is an issue in this case as to whether the defendant acted in self-defense.

A person may use reasonable force against another person to protect himself from what he 

reasonably believes to be the imminent use of unlawful force.

A person is justified in using deadly force, and does not have a duty to retreat, only if he reasonably 

believes the deadly force is necessary to prevent serious bodily injury to himself or the commission 

of a forcible felony. [H]owever, a person may not use force if:

(1) he is committing a crime that is directly and immediately connected to the 

confrontation between the defendant and Adrian Taylor;

(2) he is escaping after the commission of a crime that is directly and immediately 

connected to interaction between the defendant and Adrian Taylor;

(3) he provokes a fight with another person with intent to cause bodily injury to that person 

or;

(4) he has willingly entered into a fight with another person or is the initial aggressor, 

unless he withdraws from the encounter and communicates to the other person the intent 

to do so and the other person nevertheless continues or threatens to continue the fight.

The burden is upon the state to disprove this defense beyond a reasonable doubt.

 Appendix at 122-23.

9 Our Supreme Court has stated, “Although we have not formally approved [Indiana Pattern Jury 

Instructions] for use, we have recognized their existence and given them some preferential status.” Clay City 

Consol. Sch.. Corp. v. Timberman, 918 N.E.2d 292, 295 (Ind 2009).
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 20 of 26

interference with property can only be determined from the standpoint 

of the defendant at the time and under the then existing circumstances.

Ordinarily, one exercising the right to self-defense is required to 

act upon the instant and without time to deliberate and 

investigate, and under such circumstances a danger which exists 

only in appearance, is as real and imminent to him as if it were 

actual. A person has a right to act upon appearances of actual 

and immediate danger if they sincerely believe such apparent 

danger exists. A person’s belief of apparent danger does not 

require the danger be actual, but only that the belief be in good 

faith. It need be only apparent to a reasonable person under the 

then existing circumstances of the defendant.

A defender will not be accountable for an error in judgment as to the 

amount of force necessary, provided they acted honestly. The law protects 

persons who feel compelled to act at such times even though in retrospect 

may prove they have erred.

The defendant’s perception and belief must be subjectively

[made] in good faith and objectively one that a reasonable person 

would have under the same circumstances of the defendant, at 

the time.

Authority: French v. State, 403 N.E.2d 821 (Ind. 1980).

Appendix at 117 (emphases added). The trial court refused this tendered 

instruction on the basis that our Supreme Court had found certain language in 

it to be “not necessary” and “misleading.” Transcript Vol. 3 at 143-44.

[37] Jackson claims that the court’s Final Instruction 3 “did not address

consideration of danger from the defendant’s standpoint or that the defendant is 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 21 of 26

entitled to a mistake in judgment if he acted honestly.” Appellant’s Brief at 35. 

In Washington v. State, 997 N.E.2d 342 (Ind. 2013), a defendant similarly 

claimed that the trial court erred in failing to give his proposed instruction that 

focused on the standpoint of the person experiencing the danger and stated that 

the person would not be accountable for an error in judgment, provided he 

acted honestly. In reviewing whether the trial court was required to use the 

defendant’s proposed final instruction, the Washington Court held that it was 

not, as the additional language in the instruction was “superfluous.” Id. at 350. 

[38] Furthermore, our court, in Passarelli, recently confirmed that the objective 

component of self-defense, as adopted by our courts, is analyzed from the 

standpoint of an ordinary “reasonable person.” 201 N.E.3d at 279. There, we 

explained, 

the question being presented to the jury is whether an ordinary 

reasonable person would have responded with deadly force if 

confronted with the same circumstances that [the defendant] 

confronted. The issue is not whether a person just like 

Passarelli—who also suffers from PTSD caused by military 

combat—would have responded as Passarelli did. In short, the 

standard of what constitutes an “ordinary man” does not change 

on a case-by-case basis.

Id. at 278-79. To the extent that Jackson’s Defense Instruction 6 asked the jury 

to consider otherwise, it was not a correct statement of the law.

[39] Jackson also complains that the trial court’s Final Instruction 3 “does not 

explain that ‘reasonably believes’ encompasses a subjective and objective 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 22 of 26

standard like Jackson’s tendered instruction.” Appellant’s Brief at 35. However, 

in Schermerhorn v. State, this court addressed the propriety of a pattern selfdefense jury instruction, largely the same as that before us, and found that it 

“sufficiently instructed the jury on both components.” 61 N.E.3d 375, 383 

(Ind. Ct. App. 2016) (stating that our Supreme Court, in Washington,

determined that the jury instruction on self defense in that case, which tracked

the court’s jury instruction in Schermerhorn’s case with respect to a defendant’s 

reasonable belief in the use of imminent unlawful force, sufficiently instructed 

the jury on both the subjective and objective components), trans. denied.

[40] Jackson has failed to establish that the trial court abused its discretion in 

instructing the jury on self-defense. 

III. Admission of Evidence

[41] Jackson asserts that the trial court erred when it admitted, over his objections, 

(1) the second portion of Exhibit 15, Officer Tatomirovich’s body cam footage

showing Taylor in the backseat of the car until medical personnel arrived, and 

(2) Exhibit 23, the recorded interrogation up through the point when the 

detective completed his questioning and left the room but not including 

statements Jackson made while left alone in the room. 

[42] The admission and exclusion of evidence is within the discretion of the trial 

court. Jackson v. State, 973 N.E.2d 1123, 1127 (Ind. Ct. App. 2012), trans. 

denied. An abuse of discretion occurs when the trial court's decision is clearly 

against the logic and effects of the facts and circumstances before it. Id.
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 23 of 26

Exhibit 15

[43] Jackson asserts that the second portion of Exhibit 15, which included images of 

Taylor in the vehicle and then struggling to stand, should not have been 

admitted because it was “overly prejudicial and cumulative of other evidence” 

and “likely [] inflamed the jury’s sympathy for Taylor[.]” Appellant’s Brief at 36, 

39. Relevant evidence can be excluded “if its probative value is substantially 

outweighed by the danger of unfair prejudice.” Ind. Evidence Rule 403. As 

our courts have observed, “[A]ll relevant evidence is ‘inherently prejudicial’ in a 

criminal prosecution, so the inquiry boils down to a balance of probative value 

against the likely unfair prejudicial impact the evidence may have on the jury.” 

Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002). When determining the likely 

unfair prejudicial impact, courts will look for the dangers that the jury will 

substantially overestimate the value of the evidence or the evidence will arouse 

or inflame the passions or sympathies of the jury. Id. “‘Unfair prejudice . . . 

looks to the capacity of the evidence to persuade by illegitimate means, or the

tendency of the evidence to suggest decision on an improper basis.’” Hall v. 

State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting Camm v. State, 908 N.E.2d 

215, 224 (Ind. 2009)).

[44] Jackson argues that Officer Tatomirovich’s testimony of her observations of 

Taylor when she arrived on scene in conjunction with the surgeon’s testimony 

of Taylor’s condition at the hospital would have been sufficient to show the 

deterioration of Taylor’s condition. We have recognized, however, that 

“[g]enerally, photographs that depict a victim’s injuries or demonstrate the 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 24 of 26

testimony of a witness are admissible.’” Jackson, 973 N.E.2d at 1127 (quoting 

Ward v. State, 903 N.E.2d 946, 958 (Ind. 2009)). “Even gory and revolting 

photographs may be admissible as long as they are relevant to some material 

issue or show scenes that a witness could describe orally.” Id. (quoting 

Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998)).

[45] Furthermore, as the State argued at trial, the portion of the bodycam that 

Jackson sought to exclude served to connect the dots, so to speak, between the 

surveillance video, where Taylor was seen after the stabbing talking and 

walking out of the building – such that his injuries did not appear severe – and 

the surgeon’s testimony that Jackson was near death by the time he arrived at 

the hospital. The challenged portion of Exhibit 15 thus had probative value, 

and while it showed his deteriorating condition – clearly in physical distress and 

needing considerable assistance to get out of the car and on the stretcher – the 

footage was not particularly graphic or gruesome. Jackson has not persuaded 

us that the trial court abused its discretion by admitting Exhibit 15. 

Exhibit 23

[46] Jackson asserts that Exhibit 23 improperly “cut out the portion of the interview 

when Detective Shaffer left Jackson alone in the room and Jackson began 

talking to himself about the incident” and that the excluded portion of the 

recording should have been admitted under the doctrine of completeness, 

embodied in Ind. Evid. Rule 106. Appellant’s Brief at 39. Evid. R. 106 provides:

If a party introduces all or part of a writing or recorded 

statement, an adverse party may require the introduction, at that 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 25 of 26

time, of any other part--or any other writing or recorded 

statement--that in fairness ought to be considered at the same 

time.

The purpose of the doctrine of completeness “is to provide context for 

otherwise isolated comments when fairness requires it.” Sanders v. State, 840 

N.E.2d 319, 323 (Ind. 2006). It is “designed to avoid misleading impressions 

caused by taking a statement out of its proper context or otherwise conveying a 

distorted picture by the introduction of only selective parts of a statement.”

Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct. App. 2009), trans. denied. He 

argues that “[i]t was necessary for the jury to see the entire interview to insure a 

fair and impartial understanding of the admitted portion[.]” Appellant’s Brief at 

40. 

[47] Here, we find no error for a couple of reasons. First, to the extent that Jackson 

argues that what was excluded was a portion of the interview and “an extension 

of [his] confession,” Appellant’s Brief at 39, we disagree. Detective Shaffer did 

not leave and return. Rather, he completed his questioning and left. The 

interview had concluded. On these facts, the trial court did not abuse its 

discretion in concluding that Evid. R. 106 did not require admission of the 

recorded segment at issue.

[48] Second, although the trial court declined to admit the recording of Jackson 

talking to himself under the doctrine of completeness, the court stated that 

Jackson’s “volunteered statements” after the detective left the room “do reflect 

[Jackson’s] state of mind,” and if Jackson wished to present that portion of the 
Court of Appeals of Indiana | Opinion 22A-CR-2955 | October 26, 2023 Page 26 of 26

recording in his case-in-chief, he could do so. Transcript Vol. 3 at 139. He did 

not, and therefore he has no cause to complain. 

[49] Accordingly, Jackson has not established that the trial court abused its 

discretion in admitting Exhibit 23, which did not include Jackson’s statements 

made after the detective concluded his questioning and left the room. 

[50] Judgment affirmed.

May, J. and Foley, J., concur.