State v. Tillery

STEELMAN, Judge.

Having correctly determined that the jury must decide whether a “2x4 board” was a deadly weapon for purposes of a felony assault, the trial court erred in not submitting the lesser included offense of assault inflicting serious injury to the jury.

The State’s evidence at trial tended to show that, on the evening of 1 May 2005, Scott Lewis suffered a fractured skull, a broken jaw, and other injuries as the result of a severe beating that took place at defendant’s home at the hands of two men. Lewis and others had been working at the defendant’s home throughout the afternoon, and…