lesser included offense instruction in Kansas

2023When the giving of or failure to give a lesser included offense instruction is challenged on appeal, we apply a multi-step process when reviewing challenges to jury instructions: "'First, it considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, it applies unlimited review to determine whether the instruction was legally appropriate; then, it determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instructio

2023When the giving of or failure to give a lesser included offense instruction is challenged on appeal, we apply a multi-step process when reviewing challenges to jury instructions: "'First, it considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, it applies unlimited review to determine whether the instruction was legally appropriate; then, it determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instructio

2012Specifically, citing to a prior case with the same name, State v. Simmons, 282 Kan. 728, 741 , 148 P.3d 525 (2006), the State asserts that the complete and correct standard is that a “criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as . . . the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with that theory.” In other words, the State contends that the appropriateness of a lesser included offense instruction is measured against the defendant’s theory of defens

2012Specifically, citing to a prior case with the same name, State v. Simmons, 282 Kan. 728, 741 , 148 P.3d 525 (2006), the State asserts that the complete and correct standard is that a “criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as . . . the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with that theory.” In other words, the State contends that the appropriateness of a lesser included offense instruction is measured against the defendant’s theory of defens

2018In State v. Carr , 300 Kan. 1 , Syl. ¶ 3, 331 P.3d 544 (2014), rev'd and remanded 577 U.S. ----, 136 S.Ct. 633 , 193 L.Ed. 2d 535 (2016), this court held the ruling in Gleason eliminated any need to address the argument that a lesser included offense instruction for felony murder was supported by the evidence admitted at trial.

2018In State v. Carr , 300 Kan. 1 , Syl. ¶ 3, 331 P.3d 544 (2014), rev'd and remanded 577 U.S. ----, 136 S.Ct. 633 , 193 L.Ed. 2d 535 (2016), this court held the ruling in Gleason eliminated any need to address the argument that a lesser included offense instruction for felony murder was supported by the evidence admitted at trial.

2014Such an inquiry is closely akin to the sufficiency of the evidence review frequently preformed by appellate courts in criminal cases where ‘ “the standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ State v. McCaslin, 291 Kan. 697, 710 , 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710 , 175 P.3d 861 [2008]).” 295 Kan. at 161-62.

2014Such an inquiry is closely akin to the sufficiency of the evidence review frequently preformed by appellate courts in criminal cases where ‘ “the standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ State v. McCaslin, 291 Kan. 697, 710 , 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710 , 175 P.3d 861 [2008]).” 295 Kan. at 161-62.

2014Such an inquiry is closely akin to the sufficiency of the evidence review frequently preformed by appellate courts in criminal cases where ‘ “the standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ State v. McCaslin, 291 Kan. 697, 710 , 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710 , 175 P.3d 861 [2008]).” 295 Kan. at 161-62.

2014Such an inquiry is closely akin to the sufficiency of the evidence review frequently preformed by appellate courts in criminal cases where ‘ “the standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ State v. McCaslin, 291 Kan. 697, 710 , 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710 , 175 P.3d 861 [2008]).” 295 Kan. at 161-62.

2002“If evidence at trial merits a lesser included offense instruction, ‘a court is under an affirmative duty to give an instruction on a lesser included offense . . . even if a defendant fails to request it. [Citation omitted.]’ ” State v. Orr, 262 Kan. 312, 336, 940 P.2d 42 (1997) (quoting State v. Southerland, 248 Kan. 96, 101 , 804 P.2d 970 [1991]).

2002“If evidence at trial merits a lesser included offense instruction, ‘a court is under an affirmative duty to give an instruction on a lesser included offense . . . even if a defendant fails to request it. [Citation omitted.]’ ” State v. Orr, 262 Kan. 312, 336, 940 P.2d 42 (1997) (quoting State v. Southerland, 248 Kan. 96, 101 , 804 P.2d 970 [1991]).

1991Based on State v. Hill, 242 Kan. 68, 73-74 , 744 P.2d 1228 (1987) (an instruction on a lesser included offense is “unnecessary where the defendant’s testimony precludes a conviction for the lesser offense”), the Court of Appeals concluded that the defendant was not entitled to a lesser included offense instruction on simple battery because if the defendant were believed, he would not be guilty of aggravated battery or simple battery.

1991Based on State v. Hill, 242 Kan. 68, 73-74 , 744 P.2d 1228 (1987) (an instruction on a lesser included offense is “unnecessary where the defendant’s testimony precludes a conviction for the lesser offense”), the Court of Appeals concluded that the defendant was not entitled to a lesser included offense instruction on simple battery because if the defendant were believed, he would not be guilty of aggravated battery or simple battery.

2026"To determine whether a lesser included offense instruction is factually appropriate, a court must consider whether there is some evidence, viewed in a light most favorable to the defendant, emanating from whatever source and proffered by whichever party, that would reasonably justify the defendant's conviction for that lesser included crime." State v. Lowe, 317 Kan. 713 , Syl. ¶ 1, 718, 538 P.3d 1094 (2023); see also K.S.A. 22-3414(3) ("In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 21-510

2024"To determine whether a lesser included offense instruction is factually appropriate, a court must consider whether there is some evidence, viewed in a light most favorable to the defendant, emanating from whatever source and proffered by whichever party, that would reasonably justify the defendant's conviction for that lesser included crime." State v. Lowe, 317 Kan. 713 , Syl. ¶ 1, 538 P.3d 1094 (2023).

2026State v. Holley, 313 Kan. 249 , 254, 485 P.3d 614 (2021).

2022K.S.A. 2020 Supp. 22-3414(3); State v. Holley, 313 Kan. 249 , 255, 485 P.3d 614 (2021); State v. Armstrong, 299 Kan. 405, 432 , 324 P.3d 1052 (2014). 7 It is undisputed that misdemeanor fleeing and eluding a law enforcement officer is a lesser included offense of felony fleeing or attempting to elude a law enforcement officer.

2026App. 2d 713, 718 , 994 P.2d 645 (1999) (finding defendant was not entitled to a lesser included offense instruction to aggravated kidnapping and kidnapping because the defendant poorly bound the hands of a victim who was able to quickly escape).

2006App. 2d 713, 718 , 994 P.2d 645 (2000) (rejecting defendant’s argument that because he did not do a very good job of binding the hands of the victim who was able to quickly escape from her bonds, he was entitled to a lesser included offense instruction to aggravated kidnapping and kidnapping).

2023When the giving of or failure to give a lesser included offense instruction is challenged on appeal, we apply a multi-step process when reviewing challenges to jury instructions: "'First, it considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, it applies unlimited review to determine whether the instruction was legally appropriate; then, it determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instructio

2021Finally, Colson argues the district court erred in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of intentional second-degree murder, claiming that the evidence could have supported a jury's finding that a sudden quarrel existed. 26 Standard of review When presented with a claim that a district court has committed an error by refusing to issue a jury instruction: "(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court

2020As we later explained in Spaziano v. Florida, 468 U.S. 447, 455 , 104 S. Ct. 3154, 3159 , 82 L.Ed.2d 340 (1984), '[t]he absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . .

2020As we later explained in Spaziano v. Florida, 468 U.S. 447, 455 , 104 S. Ct. 3154, 3159 , 82 L.Ed.2d 340 (1984), '[t]he absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . .

2020Standard of Review "'For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to 10 the defendant or the requesting party, that would have supported

2020Standard of Review "'For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to 10 the defendant or the requesting party, that would have supported

2019See State v. Love, 305 Kan. 716 , 729-30, 387 P.3d 820 (2017) (finding no error in the trial court's failure to give a lesser included offense instruction for felony murder because K.S.A. 2015 Supp. 21-5109(b)(1) constitutionally eliminated lesser included offenses for felony murder); State v. Dupree, 304 Kan. 377, 400 , 373 P.3d 811 (2016) (holding lesser included offense instructions for felony murder were legally inappropriate because felony murder has no lesser included offenses); State v. De La Torre, 300 Kan. 591, 601-02 , 331 P.3d 815 (2014) (rejecting statutory mandate to give lesser i

2019See State v. Love, 305 Kan. 716 , 729-30, 387 P.3d 820 (2017) (finding no error in the trial court's failure to give a lesser included offense instruction for felony murder because K.S.A. 2015 Supp. 21-5109(b)(1) constitutionally eliminated lesser included offenses for felony murder); State v. Dupree, 304 Kan. 377, 400 , 373 P.3d 811 (2016) (holding lesser included offense instructions for felony murder were legally inappropriate because felony murder has no lesser included offenses); State v. De La Torre, 300 Kan. 591, 601-02 , 331 P.3d 815 (2014) (rejecting statutory mandate to give lesser i

2018As for the specific charge in this case, "[w]hile both second-degree intentional murder and first-degree premeditated murder are intentional crimes, first-degree murder has the additional element of premeditation." Knox, 301 Kan. at 681 .

2018As for the specific charge in this case, "[w]hile both second-degree intentional murder and first-degree premeditated murder are intentional crimes, first-degree murder has the additional element of premeditation." Knox, 301 Kan. at 681 .

2017Ed. 2d 535 (2016) (ruling in Gleason eliminates any need to address argument that a lesser included offense instruction for felony murder was supported by the evidence admitted at trial); State v. Carr, 300 Kan. 340 , Syl. ¶ 32, 329 P.3d 1195 (2014) (same), rev'd and remanded 577 U.S. ___ , 136 S. Ct. 633 , 193 L.

2016Ed. 2d 535 (2016) (ruling in Gleason eliminates any need to address argument that a lesser included offense instruction for felony murder was supported by the evidence admitted at trial); State v. Carr, 300 Kan. 340 , Syl. ¶ 32, 329 P.3d 1195 (2014) (same), rev'd and remanded 577 U.S. ___ , 136 S. Ct. 633 , 193 L.