State v. Rodriguez, 289 P.3d 85

Defendant Jaime Rodriguez was convicted of first-degree felony murder with child abuse as the underlying felony, in the death of his 5-month-old son Louie.
Louie suffered severe injuries consistent with non-accidental trauma; doctors opined that vigorous shaking or intentional head trauma caused the injuries.
During retrial, expert testimony by treating doctors supported intentional injury; defense proffered an infection theory via Dr. Al-Bayati, which the State rebutted.
The district court admitted four autopsy photographs over defense objection; the photos were gruesome but found to be probative.
Rodriguez challenged the jury instruction on child abuse, the absence of sua sponte lesser-included-offense instructions, the photo evidence, and the denial of a new-trial motion; the court affirmed the conviction.
On appeal, the court held there was no error requiring reversal and affirmed Rodriguez’s conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lesser included offenses should have been instructed	Rodriguez argues reckless second-degree murder and involuntary manslaughter should have been instructed.	Rodriguez contends the trial court erred by not providing lesser included offenses.	No error; insufficient evidence to support lesser offenses.
Whether the child abuse instruction was correct	Rodriguez claims the instruction improperly merged shaking with great bodily harm.	Rodriguez argues the form misstates causation, invading jury’s role.	Instruction was proper and did not usurp jury function.
Whether gruesome autopsy photographs were improperly admitted	Rodriguez asserts photographs were unduly graphic and cumulative to Mitchell’s testimony.	Rodriguez contends photos were prejudicial and cumulative.	Photos were relevant, probative, and not unduly prejudicial or cumulative.
Whether the hogwash remark required a new trial	Mitchell’s rebuttal comment about another witness’s credibility warranted a new trial.	The remark was improper but did not require new trial; the judge corrected it and the verdict remained intact.	No abuse of discretion; no new trial warranted.

State v. Engelhart, 280 Kan. 113 (2005) (lesser included offenses in murder cases)
State v. Simmons, 295 Kan. 171 (2012) (preservation and standard for lesser included offenses)
State v. Williams, 295 Kan. 506 (2012) (unrestricted review of instruction errors)
State v. Tahah, 293 Kan. 267 (2011) (analysis of lesser included offenses in murder cases)
State v. Berry, 292 Kan. 493 (2011) (relevance of lesser included offenses under K.S.A. 22-3414)
State v. Heath, 264 Kan. 557 (1998) (evidence and causation in criminal liability)
State v. Brice, 276 Kan. 758 (2003) (directed verdict concerns in statutory interpretation of 'great bodily harm')
State v. Miller, 284 Kan. 682 (2007) (photographic evidence admissibility and prejudice)
State v. Altum, 262 Kan. 733 (1997) (non-cumulative but probative autopsy photographs)
State v. Sappington, 285 Kan. 176 (2007) (admissibility of photographs in murder cases)
State v. Hill, 290 Kan. 339 (2010) (prejudice versus undue prejudice in photographic evidence)
State v. Robinson, 293 Kan. 1002 (2012) (abuse of discretion standards for evidentiary decisions)
State v. Rojas-Marceleno, 295 Kan. 525 (2012) (appellate review of new-trial decisions)