Reversal for failure to give lessers

Rick Kittel and KU Defender Project student Julie Larson won in State v. Hawkins, No. 98,459 (Kan. App. May 22, 2009)(unpublished), getting a new trial in a Montgomery County felony theft and fleeing and eluding prosecution. The COA reversed and remanded on each count based on failure to give lesser-included offense instructions. With regard to the felony theft, although the victim testified that the value of the stolen car was between $1000 and $25000, he also admitted on cross-examination that that conclusion was based on the insurance company's estimate and that an average persom might have said it was worth "about a hundred dollars." Based on this evidence, the COA held the district court should have given a misdemeanor theft instruction. Similarly, the COA held that the district court should have given reckless driving as a lesser of felony fleeing and eluding.

[Update: the state did not file a PR and the mandate issued on June 25, 2009.]