State v. Simmons
| Decision Date | 24 August 2012 |
| Docket Number | No. 102,715.,102,715. |
| Citation | 283 P.3d 212 |
| Parties | STATE of Kansas, Appellee, v. Elton SIMMONS, Appellant. |
| Court | Kansas Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. To receive a full appellate review of a claimed error in the giving or failing to give a lesser included offense instruction, the complaining party must have objected before the jury retires to consider its verdict. The district court's imposition of a more restrictive timeline for the requesting of lesser included offense instructions will not foreclose or restrict appellate review.
2. Simple battery is a lesser degree of the same crime as severity level 4 aggravated battery, and, as such, simple battery is a lesser included crime of severity level 4 aggravated battery.
3. Where a trial has produced some evidence, emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime, the district court shall instruct the jury as to the crime charged and any such lesser included crime that is supported by the evidence. The court's duty to instruct on lesser included crimes is not foreclosed or excused just because the lesser included crime may be inconsistent with the defendant's theory of defense.
4. Generally, it is a factual question for the jury to decide whether the bodily harm intentionally caused by a defendant was accomplished in any manner whereby great bodily harm, disfigurement, or death can be inflicted, pursuant to K.S.A. 21–3414(a)(1)(B), or whether the defendant simply intentionally caused bodily harm to another person, pursuant to K.S.A. 21–3412(a)(1).
5. Historically, the skip rule has been described as applying when a lesser included offense has been the subject of an instruction, but the jury convicts of the greater offense, and the appellant complains on appeal about the failure to give an instruction on another still lesser included offense. But such a “rule” is not amenable to mechanical application; rather, it should be viewed as simply providing a route to harmlessness in those circumstances where the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily show that the jury would have rejected or eliminated a still lesser included offense.
Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
David Lowden, assistant district attorney, argued the cause, and Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the brief for appellee.
On direct appeal, Elton Simmons challenged his conviction for aggravated battery, arguing that the district court committed reversible error by refusing to instruct the jury on simple battery as a lesser included offense. A panel of the Court of Appeals agreed, reversed his conviction, and remanded for a new trial. State v. Simmons, 45 Kan.App.2d 491, 492, 249 P.3d 15 (2011). The State petitions for review, asserting that the panel applied an incomplete standard of review and, alternatively, that the panel improperly interpreted the skip rule. We affirm the Court of Appeals' reversal and remand for a new trial.
The criminal charges against Simmons arose out of an altercation with his girlfriend, Camille Terry, which allegedly turned physical. A more detailed description of the facts can be found in the Court of Appeals opinion. For our purposes, a brief overview will suffice.
The fight involved two confrontations: the first one outside of Terry's residence during which Simmons was alleged to have punched Terry after she slapped him, and the second one inside a neighbor's house where Simmons allegedly punched Terry in the nose and forehead while she was talking by telephone with a 911 operator. Terry received treatment that night for a broken nose and a forehead cut requiring nine stitches. Later, she had surgery to correct damage from the broken nose. She claimed those injuries were sustained during the second, inside-the-house confrontation.
Ultimately, Simmons was charged with a number of crimes, the relevant ones here being misdemeanor battery for the first punches delivered outside the house and severity level 4 aggravated battery for allegedly causing great bodily harm or disfigurement with the later punches delivered inside the house. At trial, Simmons claimed self-defense for the outside punches and testified that he did not hit Terry at all during the inside confrontation.
The trial court held an instruction conference the last day of trial, which resulted in the giving of instructions on lesser degrees of felony aggravated battery as lesser included offenses. However, at the instruction conference, Simmons did not request an instruction on misdemeanor simple battery as a lesser included offense of the felony battery charge. Before the jury was instructed, Simmons' attorney did request the simple battery lesser included offense instruction, and the prosecutor agreed that it should be given. Unfortunately, the district court declined to consider the joint request, stating:
The jury found Simmons guilty of simple battery as charged for the first, outside punches. On the felony count, the jury did not find that Simmons had caused great bodily harm or disfigurement to Terry under the severity level 4 aggravated battery, as charged. Instead, the jury found Simmons guilty of the lesser included offense of level 7 aggravated battery, based upon Simmons having caused bodily harm to Terry in any manner whereby great bodily harm, disfigurement, or death can be inflicted.
On appeal to the Court of Appeals, Simmons argued that the district court erred in failing to instruct the jury on simple battery as a lesser included offense of the felony aggravated battery charge. The Court of Appeals agreed and further found that the skip rule did not save the error from being reversible. Simmons, 45 Kan.App.2d at 507, 249 P.3d 15. We granted the State's petition for review on the lesser included offense and skip rule issues.
The State first contends that the Court of Appeals applied an incomplete standard of review when it declared: “A trial court is obligated to instruct on any lesser included offense on which a jury might reasonably return a verdict [after] considering the evidence in a light most favorable to the defendant.” Simmons, 45 Kan.App.2d at 499, 249 P.3d 15. Specifically, citing to a prior case with the same name, State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006), the State asserts that the complete and correct standard is that a “criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as ... the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with that theory.”
In other words, the State contends that the appropriateness of a lesser included offense instruction is measured against the defendant's theory of defense, i.e., a district court does not err in refusing to give a requested instruction that is inconsistent with the defendant's theory of defense. Applying that standard here, the State argues that the requested instruction on simple battery was inconsistent with Simmons' trial strategy of denying that he hit his girlfriend during the second confrontation in the house.
We would first note that the State appears to mislabel the test for determining when a trial court must give a lesser included offense instruction as a standard of review. Review standards deal with the level of deference an appellate court affords to the trial court, rather than the test or basis for determining the merits of the issue. That shortcoming is certainly understandable, given that our appellate courts have not always been crystal clear or consistent in identifying standards of review or in distinguishing them from tests for reversibility when dealing with instruction issues. See Hodgkinson, Clear as Mud? “Clearly Erroneous” as a Standard of Review for Instructional Claims, Kansas Bar Association Appellate Practice Newsletter (Spring 2012). In State v. Plummer, ––– Kan. ––––, Syl. ¶ 1, 283 P.3d 202 (2012), this day decided, we set forth an analytical framework for instructional issues with corresponding standards of review:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011).”
We will endeavor to apply that process to the facts of this case. First, exercising unlimited review, we are unable to find any impediment to our appellate jurisdiction and the issue appears to have been properly preserved for a full consideration of the merits on appeal. Simmons properly requested the lesser included offense instruction “before the jury [retired] to consider its verdict,” as required by K.S.A. 22–3414(3). The district court's imposition of a more restrictive timeline for the requesting of lesser included offense instructions will not foreclose or restrict appellate review. Ironically, any few...
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State v. Williams
...See K.S.A. 2011 Supp. 21-5109(b) ("A lesser included crime is: [1] A lesser degree of the same crime."); State v. Simmons , 295 Kan. 171, 175, 177-78, 283 P.3d 212 (2012) (battery a lesser included offense of various forms of aggravated battery); State v. Nelson , 224 Kan. 95, 97, 577 P.2d ......
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