Reversal for failure to give lesser

Shawn Minihan won in State v. Simmons, No. 102,715 (Kan. App. March 4, 2011), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The state charged Mr. Simmons with severity level 4 aggravated battery. At trial, the parties agreed that the district court should give a lesser-included offense instruction for simple battery, but the district court refused because the instructions had already been prepared. The jury returned a verdict of severity level 7 aggravated battery. The COA held that the district court should have instructed as the parties requested:

The crime of aggravated battery, thus, entails differing elements and punishments depending on the defendant's intent (intentional versus reckless action); the means (deadly weapon or manner with the potential for great bodily harm, disfigurement, or death); and the degree of injury to the victim (great bodily harm, bodily harm, or mere physical contact). Depending on the facts of a given case, the permutations can be both numerous and challenging. The statutory definitions effectively create several lesser included offenses within the general rubric of aggravated battery.

In addition, simple or misdemeanor battery commonly must be considered as a possible lesser included offense. As provided in K.S.A. 21-3412(a)(1), (2), battery is either "[i]ntentionally causing physical contact with another person when done in a rude, insulting, or angry manner" or "intentionally or recklessly causing bodily harm to another person." As with the levels of aggravated battery, the distinction between the misdemeanor and felony offenses may turn on the degree of harm or the means used to inflict the harm. If the victim suffers "great bodily harm," the crime necessarily is a felony. Likewise, if the defendant uses a deadly weapon or acts in a way that could cause great bodily harm, the crime is a felony even though the victim may have minor or no physical injuries.

. . . .

When a defendant has made a sufficient request for an instruction on a lesser included offense, as Simmons has here, we treat the failure to give the instruction as a question of law, since no credibility determinations or other weighing of evidence figures into the analysis. Our review, therefore, is plenary, and we owe no particular deference to the trial court's decision. Here, the trial court never really passed on the legal propriety of giving an instruction on simple battery as a lesser included offense of the aggravated battery charge. But, instead, the trial court rejected the request simply in the name of judicial efficiency.

. . . .

In considering whether the trial court should have given an instruction on simple battery as a lesser included offense, we must determine if a jury reasonably could have returned a verdict on that charge. That is, could a jury have found the elements of simple battery to the exclusion of the elements of aggravated battery? In this case, we believe so. A jury would have to find both that Terry suffered bodily harm rather than great bodily harm and that the harm was not inflicted in a manner that could have resulted in great bodily harm, disfigurement, or death. Commonly, each of those determinations presents a fact question for a given jury to resolve. Only in particularly extreme circumstances have the Kansas courts favored precluding a jury from considering those issues.

. . . .

In light of the extensive appellate authority on this issue, the trial court should have given a simple battery instruction as a lesser included offense on the aggravated battery charge against Simmons. In short, requisite issues—the degree of harm and the manner in which the defendant caused the harm—typically go to the jury for determination. On the facts here, we believe a reasonable jury could have, though not necessarily would have, returned a verdict of guilty on simple battery had that option been made available.

I have often wondered (sometimes out loud in court), why (some) courts are so reluctant to let juries do their job. Why not, as a policy matter generally give the lessers and let the jury sort it out? If the evidence of the greater offense is so strong, then the jury will convict of the greater. If the evidence of the greater offense is not so strong, that's when the jury should convict of a lesser. Judicial reluctance seems to stem from an impression that juries might convict of lessers where (in the view of the judge) it shouldn't. But that's why we have jury trials! This decision seems to agree.

[Update: the state filed a motion for rehearing on March 10, 2011. The COA denied the motion and issued a clarified opinion on March 30, 2011.]

[Further update: the state filed a PR on April 4, 2011. Mr. Simmons filed a cross-PR on April 7, 2011.]

[Further update: the KSC granted the state's PR and denied Mr. Simmons' PR on September 21, 2011.]

[Further update: on August 24, 2012, as blogged about here, the KSC ordered a new trial.]