419 P.3d 83
Kan. Ct. App.2018Background
- Aaron Green was tried by jury for aggravated battery (against Russell), two counts of simple battery (against Adkins), criminal damage to property, and violation of a protective order; convicted and sentenced to 32 months.
- Facts: an alcohol-fueled confrontation at Adkins’ home culminated in Green striking Russell (bottle/fist), Russell suffering facial fractures, a broken kitchen knife and a hole in the wall; Adkins had a cut above her eyebrow and testified about being pinned and choked.
- Police found Green at Adkins’ house the next morning; bodycam and officer testimony recorded statements and recovered a broken knife.
- At trial the court gave a self-defense instruction over the State’s objection, and instructed on simple battery as a lesser included offense but declined to instruct on reckless aggravated battery.
- On appeal Green argued three instructional errors (knowing aggravated battery wording; failure to instruct on reckless aggravated battery; burden-of-proof/ nullification wording) and that sentencing used prior convictions not proven to the jury (Apprendi claim).
Issues
| Issue | Plaintiff's Argument (Green) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Whether the aggravated battery instruction was legally appropriate | Instruction improperly omitted phrase “with a deadly weapon,” merging alternatives and creating ambiguity | Omission was not objected to; wording is legally appropriate because "with a deadly weapon" is synonymous with "in any manner whereby great bodily harm...can be inflicted" | No error: instruction fairly and accurately stated the law (Ultreras controls) |
| 2. Whether the court erred by not giving a lesser included instruction on reckless aggravated battery | Some evidence (intoxication, conflicting statements) supported reckless theory and thus required instruction | Evidence showed knowing/intentional conduct; reckless instruction not factually supported; defendant did not request it | No clear error: lesser reckless instruction was not factually appropriate and would not have changed result |
| 3. Whether the burden-of-proof instruction improperly discouraged jury nullification | Use of PIK language ("should") and related comments effectively compelled conviction and foreclosed nullification | Defendant submitted the instruction; language "should" is advisory not mandatory; jury nullification need not be instructed | No error (invited error); PIK 51.010 wording is legally appropriate; "should" is advisory |
| 4. Whether sentencing violated Apprendi by relying on prior convictions not proved to the jury | Prior convictions/ criminal history used to enhance sentence absent jury proof beyond a reasonable doubt | Kansas precedent permits use of prior convictions in sentencing without jury proof; defendant preserved for federal review only | No relief: Kansas Supreme Court precedent controls; sentencing lawful |
Key Cases Cited
- State v. Ultreras, 296 Kan. 828 (2013) (treats "with a deadly weapon" as synonymous with means "in any manner whereby great bodily harm...can be inflicted")
- State v. Brown, 306 Kan. 1145 (2017) (standard for reviewing unpreserved instructional error as clearly erroneous)
- State v. Fisher, 304 Kan. 242 (2016) (four-step approach to jury-instruction review)
- State v. Smith-Parker, 301 Kan. 132 (2014) (district court may not use imperative language that effectively directs conviction and forbids nullification)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (due process/ Sixth Amendment principle about jury finding facts that increase punishment; raised here but Kansas precedent followed)