Angle v. State

As to Issue I, I concur but would advance a somewhat different or expanded rationale for affirming the refusal of the instruction on the Class B misdemeanor battery as an included offense of rape.

As tendered, Angle’s instruction was confined to simple battery as a Class B misdemeanor. In this regard it would have been misleading to the jury in implying that the jury must find him guilty of rape, or of a Class B misdemeanor battery, or acquit. Under the facts of this case, it would have been possible for the jury to find Angle not guilty of rape but guilty of a battery of a higher degree than…