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Lesser should have been given [NOT FINAL]

By Randall Hodgkinson

Rick Kittel won in State v. Alberty, No. 96,957 (Kan. App. Dec. 21, 2007)(unpublished), obtaining a new trial in a Wyandotte County aggravated battery prosecution. The COA noted the confusing nature of the charging history as a contributor to the error:

There was some confusion surrounding the underlying aggravated battery charge in this case. Alberty was originally charged with intentionally causing great bodily harm to Welchen, a severity level 4 felony. At the preliminary hearing, the State sought to amend the charge to recklessly causing great bodily harm, which it stated was a severity level 7 felony. Nevertheless, the State misspoke as to the severity level. Under K.S.A. 21-3414(b), recklessly causing great bodily harm is a severity level 5 offense. After realizing the mistake, the State further amended the charge downward to a severity level 8 offense, which is recklessly causing bodily harm in a manner whereby great bodily harm could occur.

As a result, although Welchen did suffer great bodily harm when he sustained a broken femur, the jury was only required to find that he suffered bodily harm, which is the same for aggravated or simple battery. The difference lies only in the manner in which the bodily harm is inflicted. K.S.A.2006 Supp. 21-3412(1) defines a battery that results in bodily harm. Both intentional and reckless conduct is covered under this subsection. The State charged Alberty under K.S.A. 21-3414 with recklessly causing bodily harm in a manner whereby great bodily harm, disfigurement, or death can occur.

There was testimony both before and after the request for the lesser included instruction that Welchen and Alberty were mutually struggling on the porch when they fell off, ending in Welchen's injuries. Although, as noted above, there was sufficient evidence to support the guilty verdict regarding the manner in which Welchen's injury was inflicted, it is possible that the jury could have found that the struggle on the porch was not a circumstance under which great bodily harm could have occurred or been forseeable. Accordingly, the trial court should have granted Alberty's request for the lesser included instruction for simple battery. We remand for a new trial.

These aggravted battery cases can be quite confusing. One of the things I never understand is the trial court, who acknowledged that this was a "close case," but decided to not give the lesser. If it is a close case, why not give it? What's the harm? At worst, the jury comes back with the lesser. Is there any legitimate reason that judges (both trial and appellate) are so afraid of giving juries a full range of options? Any thoughts?

And we were talking about how a jury is supposed to rationally discern a circumstance where a "circumstance under which great bodily harm could have occurred" compared with any other. One could argue that great bodily harm could occur in almost any battery. It is really a element of a crime that is based, almost by definition, on speculation. Maybe there is a vagueness-type argument in such cases.

Full post as published by Kansas Defenders on January 19, 2008 (boomark / email).