BY THE COURT
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.
jury instruction is legally appropriate if it fairly and
accurately states the applicable law.
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.
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
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).
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.
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.
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.
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.
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.
burden of proof jury instruction given by the district court,
which mirrors the language contained in PIK Crim. 4th 51.010,
was legally appropriate.
from Saline District Court; Jared B. Johnson, judge.
Longenecker Schmidt, of Kansas Appellate Defender Office, for
M. Jumpponen, assistant county attorney, Ellen Mitchell,
county attorney, and Derek Schmidt, attorney general, for
Bruns, P.J., Pierron and Powell, JJ.
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
and Procedural Background
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
District Court ...