State v. Moore, 82,411.
| Decision Date | 01 June 2001 |
| Docket Number | No. 82,411.,82,411. |
| Citation | 271 Kan. 416,23 P.3d 815 |
| Parties | STATE OF KANSAS, Appellee, v. LARRY MOORE, Appellant. |
| Court | Kansas Supreme Court |
Patrick H. Dunn, assistant appellate defender, argued the cause, and Joseph P. Leon, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and David Lowden, assistant district attorney, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
This case comes before us on the State's petition for review from the Court of Appeals' unpublished decision in State v. Moore, No. 82,411, filed August 11, 2000. The Court of Appeals' reversal of the defendant's aggravated battery conviction of his girlfriend, T.M., was based upon the trial court's refusal to give a lesser included offense instruction on simple battery. The question we must resolve is whether, under the facts of this case, the trial court had a duty to instruct on simple battery. We hold that there was no such duty, reverse the Court of Appeals, and remand to the Court of Appeals for consideration of other claims regarding the defendant's conviction.
The defendant, Larry Moore, was charged in case No. 98CR10 with one count of rape, one count of aggravated assault, one count of aggravated battery for attacking his wife, P.M., and one count of criminal threat for threatening his 6-year-old son, L.C.M. In case No. 98CR337, he was charged with the offense we consider in this appeal, aggravated battery of his girlfriend, T.M. All charges were consolidated for trial, and the defendant was convicted and sentenced on all charges. The Court of Appeals affirmed all of the defendant's convictions except his aggravated battery conviction of T.M. We denied the defendant's petition for review and granted the State's petition for review on the defendant's aggravated battery conviction of T.M.
Highly summarized, the facts established that the defendant met T.M. in October 1997 at a topless dance club where she worked. T.M. began staying in one of the defendant's houses. T.M. testified that she was ironing a pair of jeans one day when the defendant came into the room. The defendant was upset because T.M. had returned two chainsaws that another person had given the defendant in exchange for drugs. The defendant grabbed the iron and burned her legs. He then lifted her shirt, burned her breast, and dropped the iron between her legs, burning her inner thighs.
Photographs admitted into evidence taken 5 days after the incident and again approximately 4 weeks after the incident showed burn marks on T.M.'s legs and inner thighs. The photographs also showed an iron-shaped mark on her breast. Police officer Laurence Wade testified that he examined T.M.'s injuries approximately 1 month after the incident. According to him, there was a mark on her breast that was still healing or was possibly a permanent scar. T.M. testified that she had scars on her inner thighs but was not asked and did not comment on whether she had permanent scars on her breast or legs.
At the instruction conference, the trial court stated it was not giving lesser included offense instructions for the charge of aggravated battery of T.M. Defense counsel objected. The trial court stated:
The defendant was charged under K.S.A. 21-3414(a)(1)(A), which defines aggravated battery as intentionally causing great bodily harm to another person or disfigurement of another person. Simple battery is a lesser included offense of aggravated battery and is defined as intentionally or recklessly causing bodily harm to another person. K.S.A. 2000 Supp. 21-3412. The critical difference between the two offenses lies in the harm caused. Aggravated battery involves "great bodily harm" or "disfigurement," while simple battery involves "bodily harm" only. The trial court determined that the victim's injuries constituted disfigurement. However, when instructing the jury on the aggravated battery, the trial court instructed on both "great bodily harm" and "disfigurement." In other words, the jury could have found the defendant intentionally inflicted either great bodily harm or disfigurement in finding him guilty of aggravated battery. Thus, we consider both "disfigurement" and "great bodily harm" in resolving the issue presented.
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lessor offense. State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). However, an instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997). "Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary." State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995).
Kansas cases have distinguished great bodily harm from bodily harm, noting the term "great" distinguishes the bodily harm necessary from slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained by simple battery. State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984); State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978). The same is true with regard to "disfigurement." "Disfigurement" has no single technical meaning or single definition and should be considered in the ordinary sense. State v. Chandler, 252 Kan. 797, 804, 850 P.2d 803 (1993). When an injury has been established, the question of whether it constitutes great bodily harm or disfigurement is normally a question to be determined by the trier of fact. State v. Kelley, 262 Kan. 755, 761, 942 P.2d 579 (1997).
In a limited number of cases, this court has held that certain injuries constitute great bodily harm as a matter of law. See State v. Whitaker, 260 Kan. 85, 93-94, 917 P.2d 859 (1996) (); State v. Valentine, 260 Kan....
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State v. Williams
...proposition has become muddled by some opinions that chose to take the decision away from the jury. See, e.g., State v. Moore, 271 Kan. 416, 420–21, 23 P.3d 815 (2001) (holding burns and scarring from hot iron on victim's legs, breast, and inner thighs constituted great bodily harm as matte......
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...officer in the arm. The bullet did not strike bone. The officer missed 3 days of work on account of the injury. In State v. Moore, 271 Kan. 416, 23 P.3d 815 (2001), the defendant used a hot iron to burn his victim's legs, breast, and inner thighs. He was charged with intentionally causing g......
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...and should be considered in the ordinary sense. State v. Chandler, 252 Kan. 797, 804, 850 P.2d 803 (1993).” State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001), disapproved of on other grounds by State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). While this informs us that the term “great......
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