lesser included instruction in Kansas

2017We review alleged jury instruction errors using the following framework: "When reviewing the failure to give a lesser included 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 9 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 the defendant or the requesting party, that would have su

2017We review alleged jury instruction errors using the following framework: "When reviewing the failure to give a lesser included 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 9 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 the defendant or the requesting party, that would have su

1993As the court stated in State v. Garcia, 233 Kan. 589, 610 , 664 P.2d 1343 (1983), “[t]he test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction of the lesser *82 charge.” Because there was no evidence by which a rational factfinder might have found Ferguson guilty beyond a reasonable doubt of arson, there was no need for the district court to instruct the jury on the offense.

1993As the court stated in State v. Garcia, 233 Kan. 589, 610 , 664 P.2d 1343 (1983), “[t]he test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction of the lesser *82 charge.” Because there was no evidence by which a rational factfinder might have found Ferguson guilty beyond a reasonable doubt of arson, there was no need for the district court to instruct the jury on the offense.

2020Here, the evidence does not support the trial court giving a lesser included instruction for battery." 276 Kan. at 774 . 7 We need not recount the horrible immediate and lasting consequences Stacey suffered in this incident.

2016Moreover, in Brice, 276 Kan. at 774 , which tire PIK cited in support of the erroneous comment, we had already clarified that “we do disapprove of the statement in Valentine , [and other pases] that a through and through bullet wound is great bodily harm as a matter of law.” In Brice, 276 Kan. at 760 , the victim was shot in the upper right thigh and the bullet exited through the right buttock, missing major bones and arteries and resulting in a “ ‘through and *771 through injury.’ ” While we held it was not error for the trial court to decline to give the lesser “bodily harm” form of aggravat

2020In State v. Mitchell, 234 Kan. 185, 189-90 , 672 P.2d 1 (1983), the Kansas Supreme Court held the trial court properly failed to give a lesser included instruction on simple robbery because: 28 "It is not contested in this case that the robber had a gun.

2020In State v. Mitchell, 234 Kan. 185, 189-90 , 672 P.2d 1 (1983), the Kansas Supreme Court held the trial court properly failed to give a lesser included instruction on simple robbery because: 28 "It is not contested in this case that the robber had a gun.

2016Despite the seriousness of that wound, we held the lesser included instruction for a severity level 7 aggravated battery was both legally and factually supported when the victim’s testimony sent mixed signals to the jury because “[although she related that her wounds required a large number of stitches, she also minimized the pain she had suffered and said that she did not require any follow-up medical services other than to remove the stitches.” 295 Kan. at 523 .

2014To make this determination, the reviewing court “must necessarily look at whether it was legally and factually appropriate for the district court to give a lesser included offense instruction.” 295 Kan. at 521 (citing State v. Plummer, 295 Kan. 156 , Syl. ¶ 1, 283 P.3d 202 [2012]).

2012The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.” State v. Jones, 279 Kan. 395 , Syl. ¶ 1, 109 P.3d 1158 (2005).

2012The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.” State v. Jones, 279 Kan. 395 , Syl. ¶ 1, 109 P.3d 1158 (2005).

2006To support this conclusion, the court discussed the general principles of multiplicity as set out in Schuette, 273 Kan. 593 ; Garcia, 272 Kan. 140 ; and Garnes, 229 Kan. 368 , and cited other cases applying a single act of violence paradigm, including State v. Cathey, 241 Kan. 715 , 741 P.2d 738 (1987); State v. Bishop, 240 Kan. 647 , 732 P.2d 765 (1987); and State v. Racey, 225 Kan. 404 , 590 P.2d 1064 (1979).

2004A short review is warranted, particularly since multiplicity “has been a highly confusing subject in Kansas law and our prior cases have not always been clear.” State v. Garcia, 272 Kan. 140, 142 , *306 32 P.3d 188 (2001).

2006In doing so, the court declared: “The single act of violence paradigm concerning multiplicity is unaffected by the lesser included analysis under K.S.A. 21-3107 before or after the 1998 amendment.” 278 Kan. at 305 .

2005But, in Groves , the court cautioned that the lesser included analysis under K.S.A. 21-3107 does not affect the single act of violence paradigm concerning multiplicity. 278 Kan. at 305 .

1996If the evidence would support the giving of a lesser included instruction had the case been tried to a jury, the trial court is presumed to have followed the same course as if such an instruction had been given. 258 Kan. at 65 .

1996If the evidence would support the giving of a lesser included instruction had the case been tried to a jury, the trial court is presumed to have followed the same course as if such an instruction had been given. 258 Kan. at 65 .

1981In State v. Prince, 227 Kan. 137, 140 , 605 P.2d 563 (1980), it was held: “The court is required to instruct on a lesser included crime only when there is evidence under which a defendant might have reasonably been convicted of the lesser crime. [Citation omitted.] The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction on the lesser charge.” *311 Under K.S.A. 21-3427, aggravated robbery is defined as “a robbery committed by

1981In State v. Prince, 227 Kan. 137, 140 , 605 P.2d 563 (1980), it was held: “The court is required to instruct on a lesser included crime only when there is evidence under which a defendant might have reasonably been convicted of the lesser crime. [Citation omitted.] The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction on the lesser charge.” *311 Under K.S.A. 21-3427, aggravated robbery is defined as “a robbery committed by

2026State v. Childers, 217 Kan. 410, 415 , 536 P.2d 1349 (1975).

2026State v. Childers, 217 Kan. 410, 415 , 536 P.2d 1349 (1975).

2026State v. Salary, 301 Kan. 586, 594 , 343 P.3d 1165 (2015); State v. Rodriguez, 295 Kan. 1146, 1152 , 289 P.3d 85 (2012); cf. State v. Qualls, 309 Kan. 553 , 557-58, 439 P.3d 301 (2019) ("Even if the only evidence supporting the defendant's theory consists of the defendant's own testimony, which may be contradicted by all other witnesses and by physical evidence, the defendant may have met his or her burden" to justify a self-defense instruction.).

2026State v. Salary, 301 Kan. 586, 594 , 343 P.3d 1165 (2015); State v. Rodriguez, 295 Kan. 1146, 1152 , 289 P.3d 85 (2012); cf. State v. Qualls, 309 Kan. 553 , 557-58, 439 P.3d 301 (2019) ("Even if the only evidence supporting the defendant's theory consists of the defendant's own testimony, which may be contradicted by all other witnesses and by physical evidence, the defendant may have met his or her burden" to justify a self-defense instruction.).

2026"In general, a jury instruction on a lesser included offense is legally appropriate." State v. Phillips, 312 Kan. 643 , 668, 479 P.3d 176 (2021).

2026See, e.g., Thille, 320 Kan. at 439 (voluntary manslaughter imperfect self-defense instruction not factually appropriate when defendant denied using deadly force); State v. Harris, 313 Kan. 579 , 592-93, 486 P.3d 576 (2021) (voluntary manslaughter and self-defense instructions were not factually appropriate because there was no direct or circumstantial evidence of defendant's subjective belief that deadly force was justified); Gallegos, 313 Kan. at 269 (defendant's testimony that he "reacted without thinking" did not support a finding that the killing was done in the heat of passion to warrant

2026State v. Ochoa, 20 Kan.

2026State v. Salary, 301 Kan. 586, 594 , 343 P.3d 1165 (2015); State v. Rodriguez, 295 Kan. 1146, 1152 , 289 P.3d 85 (2012); cf. State v. Qualls, 309 Kan. 553 , 557-58, 439 P.3d 301 (2019) ("Even if the only evidence supporting the defendant's theory consists of the defendant's own testimony, which may be contradicted by all other witnesses and by physical evidence, the defendant may have met his or her burden" to justify a self-defense instruction.).

2024The reviewing panel found O'Connor's argument persuasive and concluded the district court committed reversible error in issuing the instruction because "'[a] jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous.'" 2019 WL 1868327 , at *5, 7 (quoting McClelland, 301 Kan. at 828 ).

2021In Green, our court determined that a lesser included instruction on reckless aggravated battery was not factually appropriate when the evidence showed that, during an argument, Green knocked the victim unconscious by striking him in the face with a whiskey bottle while holding a knife. 55 Kan.

2021State v. Plummer, 295 Kan. 156, 162-63, 168 , 283 P.3d 202 (2012); State v. McCullough, 293 Kan. 970 , Syl. ¶ 9, 270 P.3d 1142 (2012).

2021State v. Plummer, 295 Kan. 156, 162-63, 168 , 283 P.3d 202 (2012); State v. McCullough, 293 Kan. 970 , Syl. ¶ 9, 270 P.3d 1142 (2012).

2020Becker's challenge necessitates the application of the nonconstitutional harmless error test set forth in State v. Ward, 292 Kan. 541, 565 , 256 P.3d 801 (2011); see State v. Ross, 310 Kan. 216 , 223, 445 P.3d 726 (2019); Plummer, 295 Kan. at 168 .

2020Becker's challenge necessitates the application of the nonconstitutional harmless error test set forth in State v. Ward, 292 Kan. 541, 565 , 256 P.3d 801 (2011); see State v. Ross, 310 Kan. 216 , 223, 445 P.3d 726 (2019); Plummer, 295 Kan. at 168 .

2020But Speake argues that while he admittedly hit Stacey a couple of times, he contends Stacey's injuries "occurred elsewhere." He contends that the evidence shows that intoxication leads to a loss of balance and Stacey's injuries "could have resulted from a severe fall." In State v. Hobbs, 301 Kan. 203 , 340 P.3d 1179 (2015), the defendant was ejected from a bar.

2020But Speake argues that while he admittedly hit Stacey a couple of times, he contends Stacey's injuries "occurred elsewhere." He contends that the evidence shows that intoxication leads to a loss of balance and Stacey's injuries "could have resulted from a severe fall." In State v. Hobbs, 301 Kan. 203 , 340 P.3d 1179 (2015), the defendant was ejected from a bar.