In Appellate Case No. 111021, the defendant was charged with aggravated battery on a law enforcement officer, a severity level three person felony.  The district court instructed the jurors on the elements of the charged crime and the lesser offenses of battery of a law enforcement officer for recklessly causing bodily injury, a severity level 7 person felony, and of battery of a law enforcement officer for knowingly causing “physical contact” in a rude, insulting, or angry manner, a class A misdemeanor. See K.S.A.2011 Supp. 21–5413(c)(1), (2) and (g)(3)(A), (B).  The jury convicted the defendant of the level 7 version of battery of a law enforcement officer.

On appeal, I argued that the Sedgwick County District Court erred by failing to clearly designate each of the lesser offenses in order of severity and effectively required the jury to answer an impermissible special interrogatory rather than render a general verdict.  Importantly, the jurors submitted a written question asking the difference between “recklessly caused bodily harm” and “knowingly caused physical harm”— phrases drawn from the instruction on the lesser offenses. The juror's question highlighted the problem with the instruction.

If they wanted to find the defendant guilty of the least severe crime, it would make sense to vote for guilt of the crime where the defendant acted recklessly - not knowingly. 

But, the district court did not explain that to the jury, despite their question.  The Kansas Supreme Court has long recognized jurors must be clearly instructed on each appropriate lesser included crime and must be told to consider them in descending order of severity.

The question indicated that the jurors were struggling to understand the relationship between recklessly causing bodily harm and knowingly causing physical contact—the only factual elements that differentiated the two lesser offenses. Had the jurors been properly advised with sequential elements instructions and an instruction drawn from PIK Crim. 4th 68.080, they would have better understood that relationship.

Thus, the Court of Appeals reversed the defendant's convictions and remanded the case for a new trial.

Instructional issues are complicated and vital to the jury's application of the facts to the law.  Contact Stolte Law, LLC for a case evaluation to see if your case should be reversed too.