Improper instruction and prosecutorial error require new trial

Michelle A. Davis won in State v. Thomas, No. 115,990 (Kan. July 24, 2020), obtaining a new trial in a Chautauqua County aggravated battery and child abuse prosecution. There were separate claims that the instructions were improper and that the prosecutor committed error in closing argument.

The parties agreed that the jury instructions related to aggravated battery were legally incorrect. Pursuant to State v. Hobbs, 201 Kan. 203, 340 P.3d 1179 (2015), the aggravated battery instruction is required to show that the defendant "knowingly" acted: that he or she "was aware the conduct was reasonably certain to cause the result." Instead, the district court instructed the jury that "knowingly" only meant that the defendant intended to engage in the conduct which resulted in great bodily harm, not that he intended to cause the precise harm. As a result, the KSC held that the instruction was not legally appropriate. 

Mr. Thomas also claimed that the prosecutor erred by showing the jury a photograph of the child and telling the jury to acquit if they thought it was okay to do that to a child. The KSC agreed that such arguments were not proper:

We agree that read in isolation the prosecutor's arguments clearly encouraged the jury to convict based on an assessment of whether the jury thought Thomas' actions were okay, not on whether the State had met its burden of proving the elements. But we disagree with the panel's conclusion that the meaning changed when read in context of other statements. The prosecutor made no attempt to relate the statement to the cruel and inhuman punishment element or any other element. And the prosecutor shifted the jurors' attention away from the case to how they felt about whether "that's okay to do to your child." (Emphasis added.) The last two words invited jurors to consider the crime in the context of families or community, either of which is error.

When considering the impact of the prosecutor's improper argument, the KSC noted that "the prosecutor repeated the argument, inviting the jury to make its own emotional assessment about what was okay." The KSC considered the cumulative effect of the two errors:

But the instruction given here allowed the jury to find Thomas guilty if it determined he intended to engage in the conduct. Thus, we cannot be sure the jury based its verdict on the requisite level of culpability. We recognize serious credibility issues surround Thomas' defense that the house did not consistently have hot water, and those credibility issues might have prevented us from determining clear error occurred. But given that no direct evidence disputed Thomas' testimony about the lack of hot water, applying the constitutional harmless error standard, we cannot say beyond a reasonable doubt that the verdict was not affected. The jurors could have based the verdict on a lower level of culpability than one requiring they find that Thomas knew it was reasonably likely great bodily injury or disfigurement would occur. 

The prosecutor's erroneous statement increases this uncertainty because it encouraged the jury to convict if it concluded Thomas' actions, even if merely negligent, were not "okay." This statement invited consideration of emotion rather than a reasoned and dispassionate consideration of the facts and the law as applied to those facts—in particular, as to whether Thomas had knowingly caused the harm. 

As a result, the KSC reversed the aggravated battery conviction and remanded for a new trial. 

Finally, the KSC agreed with Mr. Thomas' argument that a Virginia conviction for assault and battery was broader than any Kansas person offense and therefore under Wetrich (blogged about here), could not be classified as a person offense in criminal history.