Aiding and abetting instruction given during jury deliberations is clear error

Rick Kittel won in State v. Hover, No. 113,214 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution.  Ms. Hover argued that the district court's improperly giving an aiding-and-abetting instruction in response to a jury question. During deliberations, the jury asked "If we determine that the defendant was guilty of battery, does she share responsibility for all the harm that was done[?]" Over defense objections, the district court gave a pattern instruction for aiding-and-abetting. The COA held that the instruction was legally inappropriate:

Hover's defense was that the State had failed to prove its case. Hover pointed out the variances in the witnesses' trial testimony and attempted to undermine the State's witnesses' credibility. Moreover, Hover argued that her hemophilia would have resulted in bruises on her hands had she been fighting, but she had no bruises. Hover offered the jury an alternative explanation of the fight: that Kelsie and Renae were the ones who hit Spencer and Hover was trying to break up the fight.

We find that the aiding and abetting instruction was not legally appropriate for the simple reason that neither party asserted an aiding and abetting theory during the trial. Moreover, Hover argues that the instruction was legally inappropriate because giving it violated her constitutional right to present a defense—she was unable to present a defense to or argue against the theory that she was guilty as an aider and abettor since that theory was not introduced until after the close of evidence and argument.

On reversibility, the COA held that the error was clear:

This case essentially boiled down to a credibility contest between witnesses supporting the State's theory—that Hover battered Spencer—and witnesses supporting the defense theory—that Hover was present but did not touch Spencer. By erroneously introducing a new theory of culpability during deliberation, without supplemental argument or presentation of evidence, the district court fundamentally changed the grounds on which the jury could convict Hover. We cannot be sure that the erroneous instruction on aiding and abetting caused the jury's verdict, but there is a real possibility that it did so. Stated differently, after carefully reviewing the entire record, we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Thus, we conclude the supplemental jury instruction on aiding and abetting was clearly erroneous.

As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]