In this case, Gatlin's counsel made two specific requests during trial for recklessness-based lesser included instructions, both times explaining the rationale behind the requests. It was not necessary for him to repeat what had become a fruitless exercise three more times in order to preserve the issue for appellate review. He had made his position clear to the district judge and given him ample opportunity to rule correctly. This situation is distinct from those in which a precise evidentiary objection must be contemporaneous with admission under K.S.A. 60-404.Using the proper standard of review, the KSC held that evidence supported giving the requested lesser-included offense instruction:
Viewing the evidence at trial in a light most favorable to Gatlin, a reasonable jury instructed on the elements of the two types of reckless aggravated battery and the definition of recklessness could have concluded that Gatlin engaged in reckless conduct and did not intentionally sever Hoffman's thumb. He may have chosen to continue biting Hoffman's thumb to persuade Hoffman to release the chokehold, knowing that this put Hoffman in danger and yet consciously disregarding that danger; or he may have chosen to allow Hoffman's thumb to remain in his mouth as the two men struggled, knowing but consciously disregarding the danger that they would lose their balance and hit the ground. Under Kansas' definition of recklessness, Gatlin need not have foreseen the specific harm that Hoffman suffered—losing the tip of his thumb. Although the circumstantial evidence supporting recklessness comes solely from the testimony of Gatlin, this is all that Kansas law requires before a lesser included crime instruction is warranted.
Good decision on procedure and on the merits.