Review of the judgment of the Court of Appeals in an unpublished opinion filed January 12, 2007. Appeal from Sumner district court; THOMAS H. GRABER, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.
1. Whether a crime is a lesser included offense is a question of law over which this court exercises unlimited review.
2. The proper analysis to determine whether a crime is a lesser included offense of another crime applies a strict elements test and is limited to a comparison of the abstract elements of the offenses charged. The test no longer takes into account the factual nuances of a specific case as they may bear on satisfaction of the statutory elements of both crimes under examination.
3. K.S.A. 21-3609, abuse of a child, does not contain an element of intent to injure; it only requires an intent to do the act that caused injury. Child abuse may be the result of actions that are not intended to cause injury.
4. Physical contact is not an element of K.S.A. 21-3609, which may be committed through a host of methodologies that do not require any physical contact whatsoever.
5. K.S.A. 21-3414(a)(1)(C) includes as an element contact done in a rude, insulting, or angry manner. This element is not an element of K.S.A. 21-3609, which may be committed purely out of frustration with an uncontrollable child and without any rude, insulting, or angry motive whatsoever.
6. State v. Allison, 16 Kan. App. 2d 321, 823 P.2d 213 (1991), and State v. Alderete, case No. 90,535, unpublished opinion filed April 2, 2004, are disapproved to the extent they hold battery to be a lesser included offense of abuse of a child.
7. Severity level 7 aggravated battery contains elements additional to those required to prove abuse of a child. As such, severity level 7 aggravated battery under K.S.A. 21-3414(a)(1)(C) is not a lesser included offense of abuse of a child under K.S.A. 21-3609.
The opinion of the court was delivered by: Greene, J.
Abraham P. Alderete appeals his conviction of abuse of a child, arguing that the district court erred in refusing to give a requested instruction for severity level 7 aggravated battery as a lesser included offense. A majority of the Court of Appeals panel agreed with Alderete, reversing his conviction and remanding for a new trial. We granted the State's petition for review on this issue only. We reverse the Court of Appeals and affirm the district court, concluding that severity level 7 aggravated battery under K.S.A. 21-3414(a)(1)(B) or (a)(1)(C) is not a lesser included offense of abuse of a child under K.S.A. 21-3609.
Factual and Procedural Overview
In September 2002, Alderete was in the process of moving belongings out of his estranged wife Rita's home when an altercation occurred in the driveway of the home between him and his wife's 17-year-old daughter, T.T. According to T.T., Alderete slammed her head against the bumper of his vehicle, struck her repeatedly on the head and back with a wooden T.V. tray, and lashed her twice with a medium dog leash chain. Rita testified that when she heard T.T.'s screaming, she exited the home only to be "whipped" by Alderete three times with the same dog leash chain. Both T.T. and her mother suffered severe bruising and lacerations as a result of Alderete's actions. He was charged with and convicted of two counts of severity level 7 aggravated battery (one count each for T.T. and Rita) and one count of abuse of a child.
In Alderete's first appeal, he argued that his conviction of abuse of a child should be reversed due to the district court's refusal to instruct on simple battery as a lesser included offense. Relying principally on State v. Allison, 16 Kan. App. 2d 321, 823 P.2d 213 (1991), the Court of Appeals reversed the conviction and remanded for a new trial, concluding that the instruction should have been given. The Court of Appeals also noted a "problem" in "basing two convictions [child abuse and aggravated battery] on the same act of violence." State v. Alderete, case No. 90,535, unpublished opinion filed April 2, 2004 (Alderete I), slip op. at 9. The Court of Appeals suggested this issue be addressed on retrial.
On remand, a second jury again found Alderete guilty of abuse of a child after the district court refused to give a requested instruction on aggravated battery as a lesser included offense. Based on the dicta from the Court of Appeals opinion in Alderete I, the district court dismissed the related count of aggravated battery on T.T. On his appeal of this second conviction, the Court of Appeals majority reversed and remanded for yet ...