Agg battery conviction reversed for failure to give lessers

Christina Waugh won in State v. Howard, No. 102,738 (Kan. App. March 11, 2011)(unpublished), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The COA rejected a unanimity claim, but held that a new trial was required based on failure to give a requested lesser for simple battery:

Here, instructing the jury on the lesser included offense of battery was supported by the evidence. When a defendant is charged with aggravated battery, “if there is evidence that the harm was slight, trivial, moderate, or minor, then the trial court must give a lesser included instruction.” The record indicates that Howard put the fan cord around Johnson's neck. However, the officer that interviewed Johnson immediately after the incident did not notice any injuries other than a couple of marks on the right side of Johnson's neck. The officer did not notice the marks until Johnson pointed them out to him. Further, there was no evidence that Johnson was taken to the hospital for her injuries or that the injuries required any treatment. Since there was no evidence presented of great bodily harm or disfigurement, the jury could have convicted Howard of simple battery. Thus, the district court erred in refusing to instruct the jury on simple battery as a lesser included offense of aggravated battery as requested.

Another example of letting the jury do its job.

[Update: the state filed a PR on April 11, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on February 20, 2013.]