State v. Simmons, 249 P.3d 15

Simmons was convicted in Sedgwick County for aggravated battery and two misdemeanors arising from a 2006 confrontation with his girlfriend Terry.
The State alleged inside the Jackson home he caused great bodily harm; Terry suffered a broken nose and nine stitches to a forehead wound.
Outside the home, Simmons punched Terry; she sustained injuries and the jury acquitted him of simple battery and related charges for the outside incident.
The trial court instructed on multiple aggravated battery theories but did not give a simple battery instruction as a lesser included offense despite a timely request.
Simmons challenged a prosecutor’s question about custody as improper and appealed, along with challenges to the fee assessment for appointed counsel and sentencing procedures.
The court reversed Simmons’ aggravated battery conviction for lack of a simple-battery instruction, remanded for a new trial, and remanded on the attorney-fee issue; other claims were denied.

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 argues simple battery should have been given	Simmons contends the court rejected a timely request; the skip rule does not bar error here	The aggravated battery conviction reversed; new trial ordered on that count
Whether the prosecutor's question about custody tainted the trial	Question implied pretrial detention and potential convictions	Question was improper but harmless	Harmless error; no reversal on all convictions
Whether the pattern jury instruction on inference of intent was proper	PIK Crim.3d 54.01 properly instructs intent inference	Instruction was proper and supported by precedent	Instruction upheld; no relief
Whether the trial court erred in assessing defense attorney fees against Simmons without considering his ability to pay	Court failed to assess financial resources and burden on payment	Assessment complied with statute spirit	Remanded for reconsideration of BIDS fee with explicit payability findings
Whether the trial court properly used Simmons' past convictions at sentencing	Use of past convictions violates Apprendi-era requirements	Kansas law allows use of past convictions for presumptive sentence	Affirmed in part, reversed in part, remanded on fee issue; no change to sentencing approach

Estelle v. Williams, 425 U.S. 501 (U.S. 1976) (pretrial detainee in jail attire violates due process)
State v. Tosh, 278 Kan. 83 (2004) (framework for evaluating prosecutor misconduct in front of jury)
State v. McReynolds, 288 Kan. 318 (2009) (three-factor test for prejudicial impact of improper statements)
State v. Nelson, 291 Kan. 475 (2010) (upheld PIK Crim.3d 54.01 on intent inference)
State v. Ellmaker, 289 Kan. 1132 (2009) (affirmed validity of intent-inference instruction)
State v. Curreri, 42 Kan. App.2d 460 (2009) (jury question on whether injuries could be great bodily harm)
State v. Green, 280 Kan. 758 (2006) (great bodily harm determination is a jury question)
State v. Delacruz, 43 Kan. App.2d 173 (2010) (instruction on lesser included simple battery required in aggravated battery case)
State v. Vessels, 2008 WL 1847374 (2010) (reversal for lack of lesser included instruction)
Curreri, 42 Kan. App.2d 460 (2009) (jury question on 'great bodily harm' distinction)
State v. Hall, 220 Kan. 712 (1976) (harmless error framework for pretrial appearance)