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State v. Green

Court of Appeals of Kansas

May 18, 2018

State of Kansas, Appellee,
Aaron Jerome Green, Appellant.


         1. Where the party challenging a jury instruction on appeal failed to object below, the clearly erroneous standard of review applies. The clearly erroneous standard is a two-step review that requires an appellate court to first determine whether the instructions were legally and factually appropriate, employing an unlimited review of the entire record. If error is found, the defendant must firmly convince the court the jury would have reached a different result without the error.

         2. A jury instruction is legally appropriate if it fairly and accurately states the applicable law.

         3. The use of PIK instructions, while not mandatory, is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. A jury instruction may depart from the PIK instruction where legally appropriate.

         4. The phrases "with a deadly weapon" and "in any manner whereby great bodily harm, disfigurement or death can be inflicted" as contained in PIK Crim. 4th 54.310 are synonymous.

         5. The aggravated form of simple battery contained in K.S.A. 2017 Supp. 21-5413(a)(2) is aggravated battery contained in K.S.A. 2017 Supp. 21-5413(b)(1)(C).

         6. A jury instruction for aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(1)(C) is legally appropriate when it states, in relevant part, that the defendant knowingly caused physical contact with the victim in a rude, insulting, or angry manner and in any manner whereby great bodily harm, disfigurement, or death can be inflicted.

         7. A lesser included offense is, in relevant part, a lesser degree of the same crime or a crime where all elements of the lesser crime are identical to some of the elements of the crime charged. A lesser included offense jury instruction must be given when there is some evidence, emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime. To determine whether a lesser included offense jury instruction should have been given, an appellate court views the evidence in a light most favorable to the defendant. A district court does not err in failing to give a lesser included offense jury instruction on a crime which is unsupported by the evidence in that particular case.

         8. A court's duty to instruct on a lesser included offense is not foreclosed or excused just because the lesser included offense may be inconsistent with the defendant's theory of defense. Moreover, the evidence which would support a conviction on a lesser included offense is not restricted to that which was proffered by the defense; it can include evidence presented by the State as well.

         9. Reckless aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(2)(B) is a lesser included offense of knowing aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(1)(C) because it is a lesser degree of the same crime.

         10 Generally, a defendant cannot complain on appeal about a claimed error that was invited. The invited error doctrine applies only when the party fails to object and invites the error, unless the error is structural. The invited error doctrine applies when a defendant actively pursues what is later argued to be error, such as when the defendant submits a proposed jury instruction.

         11. The burden of proof jury instruction given by the district court, which mirrors the language contained in PIK Crim. 4th 51.010, was legally appropriate.

          Appeal from Saline District Court; Jared B. Johnson, judge.

          Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

          Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Bruns, P.J., Pierron and Powell, JJ.

          POWELL, J.

         Aaron Jerome Green was convicted by a jury of his peers of one count of aggravated battery, two counts of simple battery, one count of criminal damage to property, and one count of violation of a protective order. Green now appeals, arguing the district court improperly instructed the jury in three instances, all of which require reversal of his convictions. Green also claims the district court improperly sentenced him by including in his criminal history prior convictions which had not been proven to the jury beyond a reasonable doubt. For reasons more fully explained below, we disagree and affirm.

         Factual and Procedural Background

         Cherie Adkins was dating Green but had a no-contact order against him. Despite the no-contact order, Adkins invited Green to have dinner with her and her cousin William Joseph (B.J.) Russell at her home in Salina, Kansas, on September 19, 2015. Around 5 or 6 p.m., Russell and Adkins began drinking while Adkins prepared dinner. Adkins testified Green came over to her house later and he drank some beers or whiskey that night. Russell testified that he was drinking whiskey pretty heavily and estimated he had had about a half liter of whiskey by the time Green arrived about two hours later. Russell admitted that due to his intoxication he did not remember a lot about what happened that night.

         After dinner, the three went over to a friend's house. During the visit, Adkins promised the friend's niece that she would bring her some toys she had at her house. The group did not stay at the friend's house very long because Green got into an argument with the friend. Green appeared irritated when they left and then became more irritated after they briefly stopped at a second friend's home. At the second stop, only Green went inside; Adkins and Russell remained in her car. Russell was pretty inebriated and may have passed out. Russell stated that he did not go into the first home and that he slept through most, if not all, of the car ride.

         After the second stop, the group returned to Adkins' house. Adkins and Green started arguing, and Russell woke up and tried to get the two to calm down. Russell and Green then went into Adkins' bedroom to talk. At that point, Adkins left to take the toys to her friend's niece and returned home about five minutes later. When Adkins returned home, Green was outside the front of her house. After Adkins got out of her car, Green began yelling at her because Russell had brought a knife into the bedroom where they were talking. Green pinned Adkins against the car, choked her to the point that she almost passed out, and caused her to fall. Green then pulled Adkins up by the back of her shirt and led her into the house and down a hallway leading to the bedrooms. Green kept his hands on Adkins' back and said he wanted her to tell Russell to leave.

         As the two walked down the hallway, Green pushed Adkins into a bedroom door or doorjamb. The impact caused a cut above her right eyebrow which began to bleed. Green then allowed Adkins to wash the blood off in the bathroom. After Adkins washed her face, Green pushed her into the bedroom where Russell was sleeping. Adkins saw a knife on the bedroom floor, woke up Russell, asked him about the knife, and told him he had to leave. Russell seemed disoriented but was able to stand up on his own. The three then left the bedroom: Russell first, then Adkins, and then Green. Russell and Green were arguing back and forth about the cut on Adkins' face and the fact that Russell had brought a knife into the bedroom. Adkins put herself between the two men, with a hand on each man's chest, trying to keep them apart. At one point, Adkins told Russell to get into her car, so he left the house. She told Green she would take Russell home and then come back to talk with him about what had happened.

         Before Adkins could take Russell home, however, Russell came back into the house with a broomstick-like stick, and Green and Russell again started to argue. Adkins testified that Russell merely held the stick in his hands and did not swing the stick during the altercation. Russell testified that he went back into the house with the stick because he could hear Adkins and Green arguing. Russell stated the altercation escalated after he saw the blood on Adkins and he realized that something serious had happened between Adkins and Green.

         During the second altercation, the three moved from the hallway to the living and dining room area. At one point, Green pushed Adkins away and she landed on the couch. According to Adkins, Green went after Russell holding a bottle in one hand and a knife in the other. Adkins did not know when Green picked up the knife. Adkins testified that Green picked up Russell and threw him into the wall, punched Russell with his fist, and then hit him across the face with the bottle. The impact of the bottle knocked Russell out and caused him to bleed. On cross-examination, Adkins confirmed that she knew Green hit Russell with the bottle but was not sure whether Green had hit Russell with his left hand first. Adkins had to pull Green off Russell and told him to stop. Green walked out a few moments later but then returned and shouted at Russell, "Why shouldn't I?" while holding the knife in his hand. Green then stabbed the wall with the knife, breaking the knife and leaving about a 2-inch hole in the wall.

         Green then walked outside, and Adkins told Russell to call 911 because her phone had been broken during the altercation. Adkins heard Russell ask for help from 911, but he must have disconnected or hung up because she heard the 911 dispatcher call the phone back a short time later. Green came back into the house, and Adkins and Green started talking. Adkins could tell Green was still angry, and Green kept looking out the front door. At some point Russell left the house through the back door. Adkins testified that she thought Green realized that someone had called 911 because the police started shining lights on the houses on Adkins' street. Green then left through the back door.

         Russell admitted that he was intoxicated and had trouble remembering the night of the incident, but he testified that he did not point the knife or strike at Green and that he initially grabbed the knife to protect himself. Russell acknowledged that he was argumentative with Green but testified that he did not lunge towards Green. Russell stated that at some point during the night Green hit him with the bottle of whiskey and the next thing he knew he was on the ground. Russell said he lost consciousness, but he came to lying on his stomach and saw a pool of blood near his face. After he came to-he only remembered bits and pieces-he could hear Adkins and Green fighting and Adkins pleading with Green not to hit Russell again. Russell remembered calling 911 and then leaving the house through the back door.

         Officer Kyle Tonniges of the Salina Police Department was sent to investigate a 911 hang up in the area of Fourth Street. Tonniges was provided with a few different addresses from dispatch, but when he got to Fourth Street he decided to approach the only house with its lights on and the front door open. Upon approaching the front of the house, Tonniges observed a black male, later identified as Green, running through the backyard toward a nearby high school. Tonniges went to the front door of the house and saw Adkins through the storm door. He observed her sitting on a couch and noticed that she had blood on her face and shirt. Tonniges testified that when he spoke to Adkins he believed that she had been drinking based on her bloodshot, watery eyes and the odor of alcohol.

         Adkins testified that she did not remember a lot of what she said to Tonniges and described herself as shocked and devastated during the conversation. Tonniges video recorded the statement Adkins provided to police that night. Specifically, Adkins told Tonniges that the altercation between Green and Russell started when Russell walked into the home with the stick in a combative manner. Adkins also stated that Green used a bottle to hit Russell in the face. Finally, Adkins provided a written statement to police that night that Green hit Russell with either a bottle or his fist. Tonniges collected a broken knife that was lying on Adkins' living room floor as evidence and described the knife as a kitchen knife about 10 inches in length with the blade broken off at the handle. Tonniges stated that the knife was about 5 feet from a hole in the living room wall and next to where Adkins described Russell as lying.

         Adkins testified that she tried to look for Russell after the police and EMS left her house early the next morning and then went to a friend's house. Russell testified that he returned to Adkins' house in the early morning hours and found the door either broken or unlocked. He did not believe anyone else was in the house, and he went to sleep on the couch. Later that morning, Adkins contacted the police to check on her home because she was scared Green was there. When Adkins got to her house, she saw police officers in her front yard. She allowed the officers into her home, and they found that Green was inside. Adkins only went inside the home once the officers removed Green.

         The State admitted a video recording from Officer Christopher Venables' body camera showing his interactions with Green, Adkins, and Russell on September 20, 2015. In the video, Adkins opens the front door to let the officers inside, and Venables requests that Green come to the front door. Venables then walks into the house and finds Green in the hallway leading to the bedrooms. Venables handcuffs Green in the front room, and Green tells Russell-who is lying on a couch in that room-to tell the police that he tried to stab him the night before. Green told the police that he had come to the house to get his stuff but did not come to the door that morning because he had just woken up. The video then shows Venables and Green talking outside the house on the front lawn, and Green tells the officers that he came over that morning to get his stuff. He said that he did not initially come to the front door because he was putting his clothes on. Venables asks Green how Adkins received the injury to her eye, and Green stated that she must have gotten it when she tried to stop Russell and him from fighting.

         Venables testified at trial that he understood Green's statement about why he went over to Adkins' house the night before as Green went to pick up some of his things and Russell and Adkins attacked him. Venables stated that Green did not provide any further details other than Russell pulled out a knife. In the video, Russell states that Green came over the night before and they were all drinking, and then Green came swinging at him. Russell claims he grabbed a knife, not to stab Green but to protect himself and his cousin.

         Officer Matthew Steffen was one of the officers who arrived at Adkins' home the following morning. Steffen spoke with Russell and was worried that Russell had a head injury based on the swelling to the left side of his face, but Russell refused medical treatment. A few days later, Russell went to the emergency room because he was having trouble eating and had numbness and pain in his jaw. Dr. Venkata Katasani treated Russell that day and testified that Russell said he was hit several times in the face with a fist or a bottle and that he lost consciousness from the injury. Dr. Katasani also testified that Russell told him he was suffering from headaches, nausea, and pain on the left side of his face and neck. Russell rated his pain as 9 out of 10. Dr. Katasani ordered CT scans and x-rays of Russell's head, facial bones, and neck area. Dr. Patrik Leonard, a radiologist, reviewed the results of Russell's scans and determined that he had recently suffered four fractures to his face, and that such injuries required a fair amount of force. Dr. Leonard testified that a fist could cause such an injury.

         Based on Dr. Leonard's assessment, Dr. Katasani referred Russell to Dr. David Hendrick-an ear, nose, and throat doctor-who determined that Russell did not need surgery but advised him to stay on a soft-foods diet for two weeks. Russell was prescribed some pain medication and renewed his pain medication prescriptions at a later date because he was still feeling significant pain. In fact, at the trial held in May 2016, Russell testified he still had some pain when he chews food and that he now tends to chew on the other side of his mouth. Russell also testified that his eye socket does not look the same as it did before the incident and that he still feels numbness in his jaw and eye.

         Following the trial, the State amended its complaint and charged Green with one count each of aggravated battery against Adkins and Russell in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(C); one count of criminal damage to property in violation of K.S.A. 2015 Supp. 21-5813(a)(1), (c)(3); one count of violation of a protective order in violation of K.S.A. 2015 Supp. 21-5924(a)(4); and one count of simple battery against Adkins in violation of K.S.A. 2015 Supp. 21-5413(a)(1).

         At the close of the evidence, Green requested and the district court permitted a self-defense jury instruction over the State's objection. The district court instructed the jury on each charge and provided a jury instruction on the lesser included offense of simple battery for the two counts of knowing aggravated battery against Adkins and Russell. Green did not request a lesser included offense jury instruction for reckless aggravated battery.

         The jury found Green guilty of one count of aggravated battery against Russell; two counts of simple battery against Adkins; one count of criminal damage to property; and one count of a violation of a protective order. The district court sentenced Green to 32 months in prison.

         Green timely appeals.

         Did the District Court ...

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