State v. Simmons
249 P.3d 15
Kan. Ct. App.2011Background
- Simmons was convicted in Sedgwick County of aggravated battery and two misdemeanors after a 2006 confrontation with Camille Terry.
- The incidents included an outside-the-car punch and a later inside the home of Tonya Jackson, resulting in facial injuries and subsequent nasal surgery.
- The jury acquitted on some charges, convicted simple battery outside, and convicted aggravated battery inside ( severity level 7 ) but not severity level 4.
- Simmons timely requested a simple-battery instruction as a lesser included offense; the trial court refused, leading to appellate challenge.
- An improper prosecutor question about Simmons’ custody status occurred during Terry’s testimony but was ultimately held harmless, and separate issues concerned attorney-fee assessment and the use of past convictions at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not instructing on simple battery as a lesser included offense. | Simmons asserted entitlement to simple battery instruction. | State contends no error or that skip rule supports no prejudice. | Reversed; remanded for new trial due to failure to instruct on simple battery. |
| Whether the prosecutor’s custody-related question affected the trial. | Simmons argues the question implied pretrial detention and convictions. | State argues the question was improper but not prejudicial. | Harmless error; no reversal required. |
| Whether imposing BIDS defense-counsel fees without assessing ability to pay was error. | Simmons contends the court failed to consider financial resources. | State relies on statutory framework. | Remanded for re-evaluation of the fee assessment consistent with the statute. |
| Whether use of Simmons’ past convictions at sentencing violated Apprendi or related standards. | Simmons invokes Apprendi arguments regarding jury determination of priors. | State argues Fischer/Ivory approve current sentencing scheme. | Affirmed in part, reversed in part, and remanded with directions. |
Key Cases Cited
- Estelle v. Williams, 425 U.S. 501 (U.S. 1976) (pretrial detainee appearance defective but related to due process)
- United States v. Lonedog, 929 F.2d 568 (10th Cir. 1991) (pretrial detainee status reference improper but harmless in some cases)
- United States v. Atencio, 435 F.3d 1222 (10th Cir. 2006) (harmless error in prosecutor’s reference to jail status)
- State v. Nelson, 291 Kan. 475 (2010) (upholds PIK Crim.3d 54.01 inference-of-intent instruction)
- State v. Curreri, 42 Kan. App. 2d 460 (2009) (jury question on whether acts could constitute aggravated battery versus simple battery)
- State v. Delacruz, 43 Kan. App. 2d 173 (2010) (instruction on lesser included offenses warranted)
- State v. Hall, 220 Kan. 712 (1976) (harmless error review for prosecutorial references)