State v. Winters

• Decision Date: 11 July 2003
• Docket Number: No. 87,695.,87,695.
• Citation: 72 P.3d 564,276 Kan. 34
• Parties: STATE OF KANSAS, Appellee, v. JESSE ALLEN WINTERS, Appellant.
• Court: Kansas Supreme Court

276 Kan. 34

72 P.3d 564

STATE OF KANSAS, Appellee, v. JESSE ALLEN WINTERS, Appellant.

No. 87,695.

Supreme Court of Kansas.

Opinion filed: July 11, 2003.

Theresa L. Barr, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the brief for appellant.

Ellen H. Mitchell, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with her on the brief for appellee. The opinion of the court was delivered by

LUCKERT, J.:

A jury convicted Jesse Winters of a severity level 4 aggravated battery and a severity level 7 aggravated battery. The trial court found the convictions were multiplicitous and merged into the greater offense, the severity level 4 aggravated battery. On direct appeal, the Court of Appeals vacated Winters' conviction of the severity level 4 aggravated battery and remanded for imposition of sentence on the severity level 7 aggravated battery. State v. Winters, 31 Kan. App. 2d 38, 59 P.3d 1034 (2002). This court granted the State's petition for review pursuant to K.S.A. 20-3018(b).

We reverse the Court of Appeals on the one issue subject to our review and affirm the trial court on that issue.

FACTS

After a domestic dispute with his girlfriend, Winters was alternatively charged in the first count of the amended information with attempted second-degree murder, severity level 4 aggravated battery, and severity level 7 aggravated battery. These alternative charges were based upon the same acts and required the same evidence to prove the charges. The second count charged aggravated kidnapping.

The jury was instructed on those charges, on battery as a lesser included offense of the aggravated battery charges, and on kidnapping as a lesser included offense of aggravated kidnapping. Thus, the verdict forms submitted to the jury provided:

Form A — guilty or not guilty of attempted second-degree murder Form B — guilty of severity level 4 aggravated battery, guilty of battery, or not guilty;

Form C — guilty of severity level 7 aggravated battery, guilty of battery, or not guilty;

Form D — guilty of aggravated kidnapping, guilty of kidnapping, or not guilty.

During deliberations, the jury asked: "If we find guilty to No. 4 [elements instruction for severity level 7 aggravated battery], do we have to find guilty to No. 3 [elements instruction for severity level 4 aggravated battery]?" After conferring with counsel, the trial court referred the jury to Instruction No. 8 which stated:

"Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the presiding juror."

See PIK Crim. 3d 68.07 (Multiple Counts Verdict Instruction).

The jury returned a verdict convicting Winters of both the severity level 4 and severity level 7 aggravated battery charges. The jury acquitted him of the attempted second-degree murder and aggravated kidnapping charges. Regarding the aggravated battery convictions, the trial court stated:

"The Court finds that the charges of attempted second-degree murder, the Level 4 aggravated battery and the Level 7 aggravated battery were pled in this case in the alternative. Under [PIK Crim. 3d 68.07 and] direction from the case of [State v. Dixon, 252 Kan. 39, 843 P.2d 182 (1992)], the Court would find that those are multiplicitous charges and therefore the verdicts on the two counts of aggravated battery would be merged into the most serious charge, and the defendant is adjudged and found on the verdict of the jury to be guilty only of the Level 4 person felony of aggravated battery."

On direct appeal, the Court of Appeals reversed and remanded, ruling that the trial court's instructions to the jury were clearly erroneous because they treated the severity level 7 aggravated battery as an alternative crime rather than as a lesser included offense of the severity level 4 aggravated battery. 31 Kan. App. 2d at 40-42. The Court of Appeals also ruled that because the doctrine of merger did not apply to lesser included offenses the proper remedy was to vacate Winters' conviction of the severity level 4 aggravated battery and remand for imposition of sentence on the severity level 7 aggravated battery. 31 Kan. App. 2d 38 at 41-42. This court granted the State's petition for review on this issue.

The Court of Appeals also ruled that the trial court had properly excluded evidence that Amy James had previously committed violent acts toward a domestic partner. 31 Kan. App. 2d at 39-40. Winters did not petition for review of that ruling.

STANDARD OF REVIEW

When reviewing challenges to jury instructions, this court is required to consider all of the instructions, reading them as a whole. "If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]" State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).

In this case, Winters did not object to any of the jury instructions or to the trial court's response to the jury's question during deliberations. Where no objection has been lodged, this court will reverse only if the instruction or failure to give the instruction is clearly erroneous. K.S.A. 2002 Supp. 22-3414(3). "Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]" State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).

LESSER INCLUDED OFFENSE ANALYSIS

The Court of Appeals found the instructions and verdict forms to be clearly erroneous because the jury should have been instructed that severity level 7 aggravated battery was a lesser included offense of severity level 4 aggravated battery. The Court of Appeals cited State v. Ochoa, 20 Kan. App. 2d 1014, Syl. ¶ 3, 895 P.2d 198 (1995), disapproved in part State v. Valentine, 260 Kan. 431, 434-35, 921 P.2d 770 (1996),

which held: "Under K.S.A. 1994 Supp. 21-3414, severity levels 5, 7, and 8 aggravated battery are included offenses of level 4 aggravated battery."

We agree with the Court of Appeals that the severity level 7 aggravated battery, charging that Winters intentionally caused bodily harm to another person in a manner whereby great bodily harm could be inflicted, was a lesser included offense of severity level 4 aggravated battery. However, we reach that conclusion through a different analysis than that utilized by the Court of Appeals. In the Ochoa case relied upon by the Court of Appeals, the court analyzed the aggravated battery offenses under a previous version of K.S.A. 21-3107(2)(d) which defined "an included crime," in part, as "a crime necessarily proved if the crime charged were proved." 20 Kan. App. 2d at 1018-21. This particular subsection of the statute, which was the basis for the two-prong test of State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), was deleted from the statute in 1998. See L. 1998, ch. 185, § 1.

K.S.A. 2002 Supp. 21-3107 now provides in relevant part:

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:

(a) A lesser degree of the same crime;

(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;

(c) an attempt to commit the crime charged; or

(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b)."

In this case, the jury was instructed that to find Winters guilty of aggravated battery as defined in Instruction No. 3, it had to find that "the defendant intentionally caused great bodily harm to another person." (Severity level 4 aggravated battery pursuant to K.S.A. 21-3414[a][1][A].) To find Winters guilty of aggravated battery as defined in Instruction No. 4, the jury had to find that he "intentionally caused bodily harm to another person [. . .] in any manner whereby great bodily harm, disfigurement or death can be inflicted." (Severity level 7 aggravated battery pursuant to K.S.A. 21-3414[a][1][B].)

Thus, for both offenses the jury had to find that Winters intentionally caused bodily harm to another person. See PIK Crim. 3d 56.18. The two offenses differ in the result of the defendant's action: a severity level 4 aggravated battery results in "great bodily harm" and a severity level 7 aggravated battery results when done "in any manner whereby great bodily harm, disfigurement or death can be inflicted." However, the element of "in any manner whereby great bodily harm, disfigurement or death can be inflicted" is an integral part of the element of "great bodily harm" because one who intentionally causes great bodily harm to another must necessarily do so in a manner whereby great bodily harm can be inflicted. Thus, all elements of the severity level 7 aggravated battery, alleging that a defendant "intentionally caused bodily harm to another person in any manner whereby great bodily harm, disfigurement or death can be inflicted," are identical to some of the elements of the severity level 4 aggravated battery; therefore, the severity level 7 aggravated battery is a lesser included offense of the severity level 4 aggravated battery pursuant to K.S.A. 2002 Supp. 21-3107(2)(b).

Consequently, the jury should have been instructed that it could find Winters guilty of a severity level 4 aggravated battery or the lesser included crime of a severity level 7 aggravated battery or the lesser included crime of battery or not guilty. It was error to instruct the jury as if...