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State v. Carter

Court of Appeals of Kansas

April 28, 2017

State of Kansas, Appellee,
v.
Robert E. Carter, Appellant.

         SYLLABUS BY THE COURT

         1. The question of whether domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is a lesser included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A) is a purely legal question over which this court has unlimited review.

         2. Domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is not a lesser included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A).

         Appeal from Sedgwick District Court; Terry L. Pullman, judge. Affirmed.

          Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

          Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Buser, P.J., Atcheson and Powell, JJ.

          BUSER, J.

         Robert E. Carter was convicted of aggravated battery in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A) following a jury trial in the Sedgwick County District Court. On appeal, Carter claims clear error because the trial court did not instruct the jury on domestic battery as a lesser included offense of aggravated battery. Upon our review, we find as a matter of law that domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is not a lesser included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A). Accordingly, we find no error in the trial court's failure to provide the jury with a domestic battery instruction.

         Factual and Procedural Background

         On June 19, 2014, Carter and his live-in girlfriend, Myrae Thomas, sat outside their home drinking beer with Carter's brother, Willie Turner, and his friend, Tiffany Cargile. During the evening, a man stopped by the house and conversed with Carter about his recently deceased grandmother. As a result of the conversation, Carter became agitated and Turner, Cargile, and Thomas decided to leave the residence to get some food and afford Carter some time alone at the home in order to calm down.

         The group returned about 40 minutes later to find the home completely dark with Carter sitting inside. When Thomas turned on the lights and asked Carter why the lights were turned off, Carter became enraged. He yelled profanities and accused Thomas and Turner of having an affair. Despite Thomas' denial, Carter leapt out of the chair and struck Thomas in the left eye. This blow caused Thomas to fall to the floor, scream for help, and then lose consciousness. Upon awakening, Thomas was covered in blood and she could not see out of her left eye.

         A short time later, Patricia Kearney, a friend of Thomas, arrived at the residence to find Thomas bleeding profusely with a "bulging" left eye. Carter and Kearney exchanged profanities, and Carter admitted that he had struck Thomas. Kearney drove Thomas to the emergency room at St. Francis Hospital where she was stabilized and then transported to Wesley Hospital for emergency surgery to repair her eye.

         According to Thomas, as a result of Carter's blow, her forehead above the left eye sustained a gash which required 32 stitches to repair but still left a scar. Regarding her left eye, Thomas testified "[t]here's no back to the eye or the top. And the eye has shrunk to nothing. I can't see out of it . . . . I haven't been able to drive or work or do anything."

         Carter was charged with aggravated battery for knowingly causing great bodily harm or disfigurement upon Thomas, a severity level 4 felony, in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A). The jury trial began on April 6, 2015, with Carter appearing pro se.

         Carter testified on his own behalf. As summarized in the appellant's brief:

"Mr. Carter's theory of defense was that Thomas had self-inflicted her injuries while under the influence of K2 [synthetic marijuana]. . . . He testified she had a bad reaction and had cut herself with her own pocketknife. . . . He testified that he tried to calm her down and help her. . . . He denied punching Thomas."

         At the conclusion of the evidence, in addition to the charged crime of aggravated battery, the trial court instructed the jury on the lesser degree of aggravated battery, to wit: causing bodily harm in a manner whereby great bodily harm or disfigurement can be inflicted, in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(B), and misdemeanor battery, in violation of K.S.A. 2015 Supp. 21-5413(a)(1). For each of these lesser included instructions, the trial court also asked the jury to determine whether the crime was an act of domestic violence. See K.S.A. 2015 Supp. 22-4616.

         The jury found Carter guilty as charged of aggravated battery for causing great bodily harm or disfigurement in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A). The jury also found this crime was an act of domestic violence. Carter was sentenced to 154 months' imprisonment, followed by 36 months of postrelease supervision. He filed several posttrial motions, including one asserting the trial court had erred by not instructing the jury on the lesser included offense of domestic battery. The trial court denied the motion. Carter appeals.

         Is Domestic Battery a Lesser Included Offense of Aggravated Battery?

         Carter contends that domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is a lesser included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A). Although he did not request a domestic battery instruction at trial, Carter asserts it was both legally and factually appropriate for the trial court to instruct the jury regarding this lesser offense. Moreover, Carter argues that the trial court's failure to properly instruct the jury in this regard was clear error because the jury would have reached a different verdict if the trial court had instructed the jury on domestic battery.

         In response, the State maintains that "[w]here the record discloses that the instruction, requested for the first time on appeal, was neither legally nor factually appropriate, and there is not a reasonable likelihood that the jury would have returned a conviction for that offense, defendant is not entitled to the relief that he seeks."

         We begin our analysis with a brief summary of our standard of review in cases where the appellant asserts instructional error. The question of whether domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is a lesser included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A) is a purely legal question over which this court has unlimited review. See State v. McKissack, 283 Kan. 721, 725, 156 P.3d 1249 (2007).

         Kansas courts follow a multistep analytical progression to determine whether a trial court made a jury instruction error, and, ...


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