BY THE COURT
a criminal defendant makes his or her position on lesser
included crime instructions clear at an instructions
conference with the trial judge, thus giving the judge an
opportunity to avoid or correct alleged instruction error,
the defendant has preserved the instruction issue for later
appeal, even if no defense objection is lodged when the
instructions are read or given to the jury.
Aggravated battery, as defined in K.S.A. 2014 Supp.
21-5413(b)(2)(A) or (B), qualifies as a legally appropriate
lesser included offense of aggravated battery, as defined in
K.S.A. 2014 Supp. 21-5413(b)(1)(A). The lesser offenses
require a reckless culpable mental state while the greater
offense requires a knowing culpable mental state.
if error in refusing to instruct on reckless aggravated
battery offenses is assumed in this case, it is not
reversible. No evidence supported a reckless act by the
Because the defendant in this case provides no evidence or
argument to establish the punitive effects of registration
under the Kansas Offender Registration Act, K.S.A. 2018 Supp.
22-4901 et seq., he must register as a violent offender.
of the judgment of the Court of Appeals in an unpublished
opinion filed January 20, 2017.
from Ford District Court; E. Leigh Hood and Van Z. Hampton,
Heather Cessna, of Kansas Appellate Defender Office, argued
the cause, and was on the brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the
cause, and Kathleen Neff, assistant county attorney, and
Derek Schmidt, attorney general, were with him on the briefs
Giosbel Perez-Medina was convicted by a jury of aggravated
battery for knowingly causing great bodily harm or
disfigurement to Ivan Valcarcel-Arias by using a knife to cut
Valcarcel-Arias' face. This case requires us to rule on
the propriety of jury instructions on lesser included
offenses based on a reckless rather than a knowing state of
mind and on the sentencing judge's imposition of a
registration requirement under the Kansas Offender
Registration Act (KORA), K.S.A. 2018 Supp. 22-4901 et
ultimately reject Perez-Medina's arguments, and we affirm
his conviction and registration requirement.
and Procedural Background
and his wife, Yusimi Cabeza, hosted a gathering of friends
and acquaintances at their home. The group included several
women and four men: Perez-Medina, Valcarcel-Arias, Rowver
Abreau, and Orlando Pedroso.
had not been invited to the party but stopped by to speak to
Perez-Medina. The men were not present when Valcarcel-Arias
first arrived, and Cabeza told him Perez-Medina would return
in about 10 minutes. After the men returned to the house, all
four of them left the party together to get beer and ice.
they returned, all of the men other than Perez-Medina stood
outside drinking beer and eating pork ribs, while the women
were inside cooking. Perez-Medina spent time with both the
men and the women.
party ended abruptly when Valcarcel-Arias received a deep
knife cut to his cheek. At the time, Abreau was sitting on
the porch rail; Perez-Medina was standing next to him; and
Valcarcel-Arias was standing at the foot of the stairs.
Pedroso was standing near the porch as well.
manner in which Valcarcel-Arias was cut would be disputed at
alleged that Perez-Medina grabbed him from behind and then
cut his cheek. Several witnesses would later testify at trial
that the two men had a friendly relationship and that there
was no ongoing dispute or precipitating argument between
Valcarcel-Arias was cut, Cabeza came outside. She and Abreau
helped Perez-Medina, who was highly intoxicated, back into
the house. Perez-Medina was holding a knife with blood on it
and was bleeding from cuts on his own hands.
drove to Maribel Rodriguez' house so that she could go
with him to the hospital. On the way to the hospital, the two
stopped at a police station to report the incident. The cut
on Valcarcel-Arias' face required about 12 stiches to
City police officers went to Perez-Medina's home to
investigate. They found drops of blood on the front steps and
around the front porch. Cabeza told a detective where she had
hidden a knife, which led the police to recover a "blue
in color knife with a silver handle on ends, like a pocket
knife." Officers arrested Perez-Medina; one officer
would later testify about Perez-Medina's extreme
intoxication and resulting unavailability for immediate
interview by law enforcement.
State charged Perez-Medina with the aggravated battery of
Valcarcel-Arias under K.S.A. 2014 Supp. 21-5413(b)(1)(A),
which forbids knowingly causing great bodily harm or
disfigurement to another person.
trial, the State submitted a set of proposed jury
instructions. In addition to an instruction on the charged
crime, the State included instructions for several lesser
included crimes, including two types of reckless aggravated
State's case-in-chief, Cabeza testified that when the
group of men returned from getting beer and ice, Perez-Medina
showed her a gift he had received. The "gift" was
the knife police would eventually recover from the house.
Cabeza did not know what Perez-Medina did with the knife when
he went outside.
cross-examination, Cabeza claimed that Valcarcel-Arias had
told her "he had found out that . . . there was a party,
and . . . was going to stay there because he so
pleased." Cabeza did not ask him to leave; after talking
to Valcarcel-Arias, she merely left him waiting outside the
house. She "didn't want to discuss" his
appearance without an invitation and "didn't want to
tell him anything." She said that he expressed his
intention to stay at the party "in a bad way."
also testified that on the day of the party Valcarcel-Arias
had a knife and Abreau had two knives. She did not know what
had happened to Valcarcel-Arias' ...