The Court of Appeals held it was reversible error to refuse to instruct the jury on the lesser-included offense of possession of methamphetamine in addition to the charge of dealing methamphetamine.
Initially, the Court declined to find waiver of the issue, despite the fact that the defendant had not submitted a written instruction on the possession charge. The Court noted the general rule that failing to tender an instruction results in waiver, but found that based on the arguments at trial, the defendant had preserved the issue.
The Court then found that the instruction should have been given, as there was some evidence that could have led the jury to find the defendant possessed but did not intend to deal methamphetamine. The Court rejected the State’s argument that no reversible error occurred because the greater weight of the evidence supported the dealing charge.
This holding presents some hope for appellate counsel seeking to argue reversible error where an instruction was not given, but should not be read by trial counsel as a green light to simply argue instructions as opposed to submitting written instructions.
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