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STATE v. WILLIS

No. 64A038905PC175.

552 N.E.2d 512 (1990)

STATE of Indiana, Appellant (Plaintiff below), v. David A. WILLIS, Appellee (Defendant below).

Court of Appeals of Indiana, Third District.

Rehearing Denied June 12, 1990.

Attorney(s) appearing for the Case

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellant.

James M. Shellow, Dean A. Strang, Shellow, Shellow & Glynn, S.C., Anne Willis Reed, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, Wis., Christopher Kirages, Stark Doninger Mernitz & Smith, Indianapolis, Christopher A. McQuillin, Law Offices of Ronald P. Nelson, Valparaiso, for appellee.

STATON, Judge.

The State of Indiana appeals the judgment of the post-conviction court vacating the conviction of David A. Willis and ordering a new trial. Willis cross appeals.

The parties present this court with five issues:

1. Whether a jury instruction which stated that an inconsistent statement could be used to decide the weight to be given a witness' testimony as well as substantial evidence of the defendant's guilt was fundamental error?

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