PD-0157-20 04/01/2020
“Whether conclusory lay testimony can contradict undisputed testimony from medical sources and a victim on the issue of serious bodily injury such that a lesser-included offense is a ‘valid, rational alternative’ to the charged offense?”
Wade bit off the lower portion of the victim’s ear with his teeth. It was found on the floor. Doctors were unable to re-attach it and had to stitch what remained of the victim’s ear to his head. Wade was charged with aggravated assault by causing serious bodily injury. The victim testified he still had nerve damage at the time of trial and was permanently disfigured by the assault. The State introduced his hospital records and photographs of the injury before it was treated. The jury was permitted to examine the victim’s ears.
Wade denied the victim suffered serious bodily injury. He testified that if he saw the victim on the street, he would not notice any difference between his two ears. Wade asked for a lesser-included instruction on simple assault, but this was denied. The jury convicted him of aggravated assault.
On appeal, Wade challenged the denial of the simple-assault instruction. The court of appeals held that Wade’s testimony provided a basis for the jury to infer the injury was not a severe and permanent disfigurement when inflicted and that the lesser-included instruction should have been given. It reversed.
The State argues that Wade’s testimony about the extent of the victim’s injury was conclusory, self-serving, and irrational in the context of the rest of the record demonstrating that part of the victim’s body was found lying on the floor after the incident. It contends that the court of appeals’s opinion would permit any defendant to testify, deny an obvious reality, and thereby entitle himself to a lesser-included-offense instruction. It points to civil caselaw that conclusory, baseless opinions are not probative evidence and will not support a jury finding.
