*1
employment status. Wil
question
of the
KEMP, Appellant-
(citing
supra,
trans. denied Indiana, Appellee-Plaintiff. STATE the record reveals No. 48A02-9406-CR-386. review of Our Wayne dispute Dague and Fort do Indiana, Appeals Court payment, the mode of the facts Second District. portion agreement, of the termination materials, par supplying of tools and or the March relationship. belief as to the nature of the ties May Denied Transfer they disagree do Wayne that Fort exhibited these infer facts an
enough control over Christine to establish
employer-employee relationship. acknowledge we the evi
'While point toward the
dence contains facts which contractor, independent the evi
status of an point facts which toward
dence also contains employee. light In
the status of an conflicting inferences which
facts therefrom,
have been drawn we conclude the trier of fact is entitled to consider totality of the circumstances of this rela determine, whether,
tionship Mark acting employee Wayne an Fort Wilson, supra, time of accident. undisputed facts lead
N.E.2d at 486. Where inferences, conflicting such a case cannot summary judgment. decided Great-
be
house, supra, at 366. 'We therefore conclude granted trial court erred when it summary Wayne's judgment.
Fort motion for foregoing, with the we re- accordance grant summary judgment
verse the Wayne's and remand to the trial Fort favor
' proceedings consistent with court for RUCKER, JJ., concur.
GARRARD and *2 felony. a 'D' felony and
tery as 'C IAm correct? Yes Sir. you with you and discussed have told I Anderson, appel- for Ragains, R. Patrick I presence of outside
lant. Scrougham vs. a case which found (1990) N.E.2d, State, Gen., L. Par- Carter, Atty. Janet Pamela ...' ... 'In other words provides Gen., Atty. Office sanko, Atty. Deputy words, 'In other quoting here. I'm appellee. Gen., Indianapolis, a lesser you that the I've told offense of OPINION right? Am I say that. cases |p FRIEDLANDER, Judge. Yes Sir. © you I discovered I told And his conviction Kemp appeals Donald today. Am I correct? felony,1 arguing Battery, class C p erroneously instructed court Yes Sir. jury. outside you to do what I asked So courtroom? affirm. We the form. Go over judgment facts favorable ... morning of De early hours Make a decision. home of 20, 1992, Kemp went cember $ As to what? answered the ex-wife, D.K. D.K. When his inside, Whether way pulled off door, Kemp pushed his be allowed those should engage in D.K. to forced clothes and D.K.'s not. April On oral sex intercourse if upshot was you I did tell What & information filed an the State you I did tell ... What did felony.2 B rape, a class charging had were? alternatives various presented, trial, the evidence At after decision, you had to decide to make a errone tendered the State between what? ously (8) is what it evils parties dis rape. The included offense me. like to sounds in Defense instruction. Exactly words? in other © client to that he wanted formed p ... I on whether Make a decision to include the make the decision saying. you're what understand don't following colloquy took instruction. just make? counsel: Kemp and defense decision did What © place between | in. court leave them Sir, name for the To "Q. state please? in? Leave what © | p Kemp, Jr. Dennis Donald felony. 'D' The 'C' $ presence out of the felony. And we're Did I tell 'D' The 'Cand © jury. bring Am I correct? felony could 'D' what p jail? of time terms } Rape, a $ charged with You've been much? How right? I Felony. Am © Class p (8) (6) > years. to three months Six Yes Sir. felony could you what the 'C' Did I tell requested has added The State you? bring of Sexual included offenses IC 35-42-4-1. 35-42-4-8. 1 Ind.Code (8) (6) Yeah, three to six elements: think was intentionally, knowingly or with the intent years. his own sexual desires (8) eight years. It was two or the sexual desires of Denise eight Two touched Denise when Denise felony 'B' Did I tell what the *3 touching by compelled was to submit to the bring? force or the imminent threat of force.... twenty Up to beyond find a reasonable say did I tell the cases by doubt that the offense was committed deadly using threatening or the use of it's not a lesser included offense and object? theoretically force, therefore guilty should find the defendant Felony." battery, of a sexual Class C jury Record at 880-882. The convicted you telling me to or And are battery, felony, a class C and object? not to acquitted Kemp charge rape. }p on the of object. Not to years trial court to four sentenced Are sure? imprisonment. Kemp appeals presents my No but that's decision. the issue: Did, your That's decision. Did the trial court err when it tendered wife and talk about also? jury erroneously stating battery sexual is a lesser included offense rape? Okay." deprived he was of his asserts the Record at 767-772. The court instructed process judge to due because the instructed jury rape, felony, a then as to class jury battery he was the on sexual when battery them sexual charged parties agree Both follows: not, law, battery as a matter of a sexual is "The term 'included offense' is defined rape. Kemp, how- lesser included offense meaning an that: is estab- law as offense ever, ignores expressly the fact that he by proof lished of the same material ele- trial. to the instruction less than all the material ele- ments or complains. invited the error of which he required the ments to establish commis- charged; consists of an Sund v. State sion of offense charged charged attempt to commit the offense or 320 N.E.2d defendant therein; re- degree or with first arson. The defendant an offense otherwise included charged only differs from the offense jury quested and the court allowed a instruc- degree a that fourth arson was respect that a less serious harm or risk degree property, included offense of first arson. person, of harm to the same interest, of fourth culpabil- kind of convicted the defendant public or a lesser appealed, degree arson and the defendant ity, required commission. to establish its crime claiming a variance between The lesser included offense who, charged crime for which he was tery person is: I.C. 385-42-4-8. the conviction per- convicted. The court affirmed with intent error, on the doctrine of invited stat- desires or the sexual de- based son's own sexual may now be heard person, ing: defendant] another not "[The of another touches sires very complain convicted of the person compelled to person when that which he asked to be submitted touching force or the submit as an alternative consideration imminent threat of force commits judg- not set aside the verdict and battery, Felony. the we will a Class N.E.2d at ment which he invited." Id. 320 Felony if it is commit- offense is Class C (1985), Ind., Craig Similarly, in by using threatening the use of ted to dis- the defendant moved deadly To convict the defen- force.... arguing that it should dant, charge, proved have each of miss the State must object- have harmful he struction included be treated was not a fair trial Kemp's right to it. been ed to he had also robbery, with which acquitted injured. After the charged. of bat- charge convicted robbery Judgment affirmed. argue that attempted to
tery, the defendant in fact a lesser BAKER, J., concurs. the defen- noted The court offense. SULLIVAN, J., result with concurs awas deliberate to dismiss motion dant's separate being acequit- his chance maximize tactic to Craig court robbery charge. ted on the result. SULLIVAN, concurring in Judge, a method agrees to party who that a held error" of "invited The doctrine cannot claim determining rights at *4 ap- A more necessary for affirmance. basis method appeal because error on correctly the court rationale is that propriate adopted. aas jury upon sexual case, shows the record present In the included offense. battery was not a Kemp knew colloquy Kemp be prompted dis- The case Kemp and which wife and de- with his instruction defense tween options, weighed the request to not Kemp's fense counsel. to led choosing Scrougham v. that he was in the record Dist.Ind.App., [sic]. ... evils". 4th the "lesser between State ultimately agreed erroneously observed Record at That agree to a may not are jeopardy considerations double the instruction. Indiana reversal then seek federal con present under procedure to those certain identical Id. procedure. ap based on that analysis. approach would This stitutional application of the begin and end pear to he Kemp concedes Although Blockburger v. United in established test instructions, it was argues that 76 52 S.Ct. 284 U.S. States to include error fundamental In this in Indiana. adopted L.Ed. is an error error A fundamental them. however, offense as state, look to the we also violation blatant which is a substantial guid jeopardy double charged for additional unfair. rendering the trial principles, basic well, of ance, the two and as Ind., N.E.2d v. State Townsend reality under consideration fenses the burden appellant bears 727. The Stwalley v. State single act. See occurred, and that that the error proving jeopar Ind., Indiana double N.E.2d 229. The element Id. fundamental. error was identical therefore not dy analysis is fact not shown harm is Berger Levin analysis. See Rosalie federal Rather, we exam was convicted. Law Constitutional and Federal State fair to a the defendant's ine whether Inp.L.Rev. (1994). 887, 888 Developments, by the denial detrimentally affected (1991) 2d for the ascertain As noted opportunities procedural Griffin 191, Scrougham, N.E.2d Dist.Ind.App., other the defendant truth to which ment of Watkins impliedly task overruled supra, Id. Our entitled. would have been wise (1991) Ind., relying State was unfair determining whether (1990) Ind., 560 Bowling v. State upon and decide occurred inspect all influence N.E.2d 658. had substantial the error Id. upon the verdict. by the instruc- battery covered The sexual giving of the specify rape how Kemp fails to an included agreed to proper. harmed charged. The instruction the belief that the instruction charge when it rape acquit him serious offense the less
considered the in- Kemp had believed
battery.