State v. Garner

KELLY, Judge.

Joseph Garner was charged with resisting arrest with violence, but the jury found him guilty of the lesser-included offense of resisting arrest without violence. The trial court granted Garner’s motion for judgment of acquittal after the verdict based on the insufficiency of the evidence *1047to support the lesser-included offense. The State appeals from that order, arguing that Garner waived any postverdict sufficiency of the evidence argument by requesting the permissive lesser-included offense instruction. We agree and reverse.

When, as here, a defendant seeks an instruction on a…