Appeal from Clay District Court; DAVID L. STUTZMAN, judge.
1. K.S.A. 22-3501 permits the trial court to grant a new trial if it is in the interest of justice to do so. An appellate court examines the trial court's ruling on a motion for a new trial to determine if the court abused its discretion in its ruling.
2. Granting a new trial due to newly discovered evidence is not favored, and a motion to do so should be viewed with caution.
3. To prevail on a motion for new trial based upon newly discovered evidence, the movant first must show that the claimed new evidence could not have been produced at trial with reasonable diligence. Second, the movant must also show that there is a reasonable probability that the newly discovered evidence would produce a more favorable result upon retrial.
4. Relevant evidence is evidence which tends to prove a material fact.
5. An appellate court applies the clearly erroneous standard when reviewing the failure of the trial court to instruct on a lesser included offense when no such instruction was requested. Under this standard the appellate court will reverse a conviction if it was error not to give an instruction on a lesser included offense and the appellate court is firmly convinced that there is a real possibility the jury would have rendered a verdict more favorable to the defendant had the proper instruction been given.
6. A defendant has the right to an instruction on all lesser included offenses if (1) the evidence, viewed in the light most favoring the defendant, would justify a jury verdict in accordance with this theory, and (2) the evidence does not exclude guilt on the lesser offense.
7. The difference between battery and aggravated battery is the inclusion in the latter crime of the additional element that the act is performed "with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted."
8. "Great bodily harm" has often been defined as more than slight, trivial, minor, or moderate harm and does not include mere bruising which is likely to be sustained by simple battery.
9. It is the task of the trial court to consider the evidence as a whole to determine if the jury should be instructed on a lesser included offense. In a case in which the defendant is charged with aggravated battery, if the evidence is that the victim's injury was neither slight, trivial, moderate, nor minor, the district court is not required to give an instruction on simple battery.
The opinion of the court was delivered by: McANANY, J.
Before GREENE, P.J., McANANY and BUSER, JJ.
Roosevelt Smith, III, appeals his conviction of aggravated battery. The charge against Smith arose from events during the early morning hours of June 27, 2005. A short time earlier, the drug and hormone induced revelry at a party at the home of Wendolyn Barnum ended with the abrupt departure of Amber Ratzlaff through a bedroom window. The police were called to sort things out. After the police did so, Ratzlaff went home and asked Smith to accompany her back to Barnum's ...