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State v. Perez-Medina

Supreme Court of Kansas

September 6, 2019

State of Kansas, Appellee,
Giosbel Perez-Medina, Appellant.


         1. When 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.

         2. 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.

         3. Even 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 defendant.

         4. 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed January 20, 2017.

          Appeal from Ford District Court; E. Leigh Hood and Van Z. Hampton, judges.

          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 for appellee.

          PER CURIAM.

         Defendant 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 seq.

         We ultimately reject Perez-Medina's arguments, and we affirm his conviction and registration requirement.

         Factual and Procedural Background

         Perez-Medina 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.

         Valcarcel-Arias 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.

         When 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.

         The 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.

         The manner in which Valcarcel-Arias was cut would be disputed at Perez-Medina's trial.

         Valcarcel-Arias 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 them.

         After 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.

         Valcarcel-Arias 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 close.

         Dodge 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.

         The 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.

         Before 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 battery.

         In the 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.

         On 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."

         Cabeza 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' ...

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