State v. Delacruz

1

No. 100,654


IN THE COURT OF APPEALS OF THE STATE OF KANSAS


STATE OF KANSAS,
Appellee,


v.


JOE DELACRUZ,
Appellant.


SYLLABUS BY THE COURT


1.
When a defendant fails to object to an instruction as given or to the district court's
failure to give an instruction, an appellate court's review is limited to determining
whether the instruction given or omitted was clearly erroneous.

2.
An instruction is clearly erroneous only if the appellate court is firmly convinced
that a real possibility exists that the jury would have rendered a different verdict if the
trial error had not occurred.



2

3.
The term "great bodily harm" as used in the aggravated battery statute, K.S.A. 21-
3414(a)(1)(A) and (B), distinguishes the bodily harm necessary to establish aggravated
battery from slight, trivial, minor, or moderate harm, and it does not include mere
bruising, which is likely to be sustained in simple battery under K.S.A. 21-3412(a)(1).

4.
Generally, whether particular injuries constitute great bodily harm or bodily harm
is a fact question for the jury to decide.

5.
While district courts are strongly encouraged to use the Pattern Instructions for
Kansas (PIK) instructions as written, if the particular facts of a case require modifications
or additions to the PIK instruction, the trial court should not hesitate to do so.

6.
Under the facts of this case, that the district court affirmatively and erroneously
instructed the jury that the terms "great bodily harm" and "bodily harm" could not be
defined. If the jury had been instructed that great bodily harm means something more
than slight, trivial, minor, or moderate harm, and does not include mere bruising, a real
possibility exists that the jury may have concluded that the victim suffered bodily harm
instead of great bodily harm and convicted him of the lesser offense of aggravated battery
3

as defined in K.S.A. 21-3414(a)(1)(B) or of simple battery as defined in K.S.A. 21-
3412(a).

Appeal from Seward District Court; TOM R. SMITH, judge. Opinion filed
January 22, 2010. Reversed and remanded.

Ryan Eddinger and Meryl Carver-Allmond, of Kansas Appellate Defender Office,
for appellant.

Don L. Scott, county attorney, and Steve Six, attorney general, for appellee.

Before HILL, P.J., CAPLINGER and LEBEN, JJ.

CAPLINGER, J.: In this appeal by Joe Delacruz of his aggravated battery
conviction, he argues his right to a fair trial was violated by improper comments made by
the district court during voir dire and trial, as well as improper comments made by the
prosecutor during closing argument. Delacruz also contends the instructions given by the
district court on aggravated battery and misdemeanor battery were clearly erroneous.

We conclude the district court erroneously instructed the jury on misdemeanor
battery and aggravated battery and that a real possibility exists that, but for these errors,
4

the jury would have rendered a different verdict. Thus, we reverse and remand to the
district court for a new trial.

Factual and Procedural Background

On November 2, 2007, Delacruz and his wife, Angela Aguilar Delacruz (Angela),
spent the evening driving around in Delacruz' truck and drinking beer. Eventually, they
ended up at a bar where they continued to drink. At the bar, Delacruz became jealous
and accused Angela of wanting to be with other men.

As the two left the bar, they argued over who should drive home. Angela dropped
Delacruz off at a friend's home and then drove to a parking lot near their apartment.
There, Angela parked the truck and sat in the parking lot for approximately an hour to
and hour and a half because she had been drinking and did not want to drive. Also, she
was worried about going home because she knew what "usually happen[ed]" when she
and Delacruz drank.

Delacruz was present when Angela returned to the couple's apartment, and the two
began fighting. Sometime early in the morning of November 3, 2007, the Liberal police
dispatch received a 911 call from Angela's cellular phone. The 911 operator heard a
female screaming and the sound of someone being struck before losing the connection.
5

Officers attempted to locate Angela but, lacking a current address, their attempts were
unsuccessful.

During the altercation between Delacruz and Angela, Delacruz punched Angela in
the face, stomped on her head, sat on her arm, and choked her until she passed out. At
some point, Angela hit Delacruz with a lamp. Additionally, during the fight, Angela left
the apartment and unsuccessfully attempted to obtain help at a neighbor's apartment.
When she returned, she and Delacruz continued fighting. After the altercation ended,
Angela and Delacruz remained together in the apartment for 2 days.

On November 7, 2007, Angela appeared in court on an unrelated matter. Officer
John McCord was present and observed bruises and cuts on Angela's face and head.
McCord asked Angela about the 911 call and convinced her to accompany him to the
police station for an interview. During the interview, Angela provided details of her
altercation with Delacruz.

The State charged Delacruz with aggravated kidnapping; aggravated battery or, in
the alternative, attempted first-degree murder; aggravated intimidation of a witness; and
criminal threat.

At trial, Angela testified regarding her fight with Delacruz and the extent of her
injuries. The State presented photographs taken the day of Angela's interview of the
6

injuries she claimed to have sustained during her fight with Delacruz. Officer McCord
testified about his interview with Angela and his observations of her injuries, and the jury
watched a DVD video of the interview. Two officers testified about their attempts to
locate Angela following the 911 call. Delacruz' theory of defense was that Angela's
testimony was not credible because she had been drinking and had taken several
prescription medications the night of the incident.

At the close of the State's evidence, the district court granted Delacruz' motion for
a directed verdict in part, finding no evidence to support the charges of aggravated
kidnapping, attempted first-degree murder, aggravated intimidation of a witness, and
criminal threat. The district court retained the charge of aggravated battery with great
bodily harm. However, finding the evidence of this charge to be "thin," the district court
also instructed the jury on the lesser included offenses of aggravated battery with bodily
harm and simple battery.

The jury found Delacruz guilty of aggravated battery with great bodily harm, a
severity level 4 offense under K.S.A. 21-3414(a)(1)(A).

Discussion

In this appeal of his conviction, Delacruz argues his right to a fair trial was
violated by improper comments made by the district court during voir dire and trial and
7

by the prosecutor during closing argument. Further, he argues the district court
committed clear error in instructing the jury on misdemeanor battery and aggravated
battery.

Because we conclude that the jury instructions were clearly erroneous and require
reversal of Delacruz' conviction and remand for a new trial, we decline to consider
Delacruz' claims of judicial and prosecutorial misconduct.

A. Jury Instructions

Delacruz challenges aspects of both Instruction Nos. 3 and 4. Those instructions
provided:
"Instruction No. 3

"In Count No 1, the Defendant, Joe Delacruz, is charged with the
crime of Aggravated Battery. The Defendant pleads not guilty.
"To establish this charge, each of the following claims must be
proved:
"1. That the Defendant intentionally caused great bodily harm to
another person; and,
"2. That this act occurred on or about the 3rd day of November,
2007, in Seward County, Kansas."

"Instruction No. 4

8

"As to Count 1, wherein the Defendant is charged with the offense
of Aggravated Battery With Great Bodily Harm, includes the lesser
offenses of Aggravated Battery With Bodily Harm and Battery.
"The Defendant pleads not guilty to both of these lesser included
offenses.
"To establish the charge of Aggravated Battery With Bodily Harm,
each of the following claims must be proved:
"1. That the Defendant intentionally caused bodily harm to another
person in any manner whereby great bodily harm, disfigurement or death
can be inflicted.
"2. That this act occured [sic] on or about the 3rd day of November,
2007, in Seward County, Kansas.
"To establish the charge of Battery, each of the following claims
must be proved:
"1. That the Defendant intentionally caused physical contact with
another person in a rude, insulting or angry manner; and,
"2. That this act occured [sic] on or about the 3rd. day of November,
2007, in Seward County, Kansas.
"You may find the Defendant guilty of Aggravated Battery with
Great Bodily Harm, Aggravated Battery With Bodily Harm, Battery or not
guilty.
"When there is a reasonable doubt as to which of two or more
offenses Defendant is guilty, he may be convicted of the lesser offense
only.
"There are no definitions that this Court can give to you to define
'great bodily harm' or 'bodily harm'. You must consider all of the evidence
presented, to determine the crime, if any, committed by the Defendant."
(Emphasis added.)

9

Delacruz makes two distinct arguments on appeal with respect to these jury
instructions. First, he contends the district court clearly erred in defining the lesser
included crime of simple battery as "intentionally caus[ing] physical contact with another
person in a rude, insulting or angry manner" pursuant to K.S.A. 21-3412(a)(2). He
argues the evidence presented at trial instead required that the jury be instructed that
simple battery is "intentionally causing bodily harm to another person" pursuant to
K.S.A. 21-3412(a)(1).

Further, Delacruz argues the district court committed clear error in instructing the
jury regarding aggravated battery when it failed to distinguish "great bodily harm" from
"bodily harm" and by affirmatively instructing the jury that no definition of "great bodily
harm" or "bodily harm" could be provided.

Delacruz concedes he failed to object to the instructions as given or to the court's
failure to define "great bodily harm" and "bodily harm."

When a defendant fails to object to an instruction as given or to the district court's
failure to give an instruction, our review is limited to determining whether the instruction
given or omitted was clearly erroneous. K.S.A. 22-3414(3); State v. Cooperwood, 282
Kan. 572, 581, 147 P.3d 125 (2006). An appellate court may find an instruction to be
clearly erroneous only if we are firmly convinced that a real possibility exists that the
10

jury would have rendered a different verdict if the trial error had not occurred. State v.
Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).

1. Misdemeanor battery

Delacruz points out that K.S.A. 21-3412(a) provides two definitions of
misdemeanor, or simple, battery: "(1) Intentionally or recklessly causing bodily harm to
another person; or (2) intentionally causing physical contact with another person when
done in a rude, insulting or angry manner." He argues the district court erred in
instructing the jury in this case on the second of these two alternatives, i.e., that simple
battery consisted of "intentionally caus[ing] physical contact with another person when
done in a rude, insulting or angry manner." Delacruz contends that because the evidence
presented by the State clearly supported an instruction on bodily harm, the district court
was required to instruct the jury pursuant to K.S.A. 21-3412(a)(1) that simple battery was
"intentionally or recklessly causing bodily harm." Delacruz suggests that if the jury had
been instructed on battery as defined by K.S.A. 21-3412(a)(1), the jury might have
convicted him of misdemeanor battery causing bodily harm rather than aggravated
battery causing great bodily harm.

The State bypasses the issue of whether the instruction was erroneous and, instead,
argues it was not clearly erroneous because there was no real possibility the jury would
have concluded Delacruz was guilty of intentional bodily harm had it been instructed as
11

to this option with respect to the misdemeanor battery charge. Based on its verdict, the
State contends the jury necessarily determined that Angela's injuries constituted great
bodily harm rather than bodily harm.

We agree that the district court should have given an instruction based on K.S.A.
21-3412(a)(1) on the evidence presented here. However, we will postpone our
discussion of whether the instruction was clearly erroneous and consider that issue in
conjunction with our discussion of the prejudice caused by the additional instructional
error, as discussed below.

2. Aggravated battery

Delacruz asserts a two-fold challenge to the instruction on aggravated battery.
First, he contends the district court erred by failing to provide an instruction
distinguishing between "great bodily harm" and "bodily harm." Second, he argues the
court erred by affirmatively instructing the jury that the two terms could not be defined.
Delacruz further suggests that if the jury had been instructed that "great bodily harm"
means something more than "slight, trivial, minor, or moderate harm, and does not
include mere bruising," the jury would have convicted him of the lesser offense of
aggravated battery as defined in K.S.A. 21-3414(a)(1)(B) or of simple battery as defined
in K.S.A. 21-3412(a).

12

Without benefit of authority, the State contends the aggravated battery instruction
correctly stated the law. Further, the State argues that even if the instruction was
erroneous, it is unlikely the jury would have reached a different verdict had it been
properly instructed.

The jury was instructed on aggravated battery, which is defined in K.S.A. 21-
3414(a)(1)(A) as "[i]ntentionally causing great bodily harm to another person or
disfigurement of another person." (Emphasis added.) Further, the jury was instructed on
a lesser included offense of aggravated battery, which is defined in K.S.A. 21-
3414(a)(1)(B) as "intentionally causing bodily harm to another person with a deadly
weapon, or in any manner whereby great bodily harm, disfigurement or death can be
inflicted." (Emphasis added.) Aggravated battery as described in K.S.A. 21-
3414(a)(1)(A) is a severity level 4 offense, while aggravated battery as described in
K.S.A. 21-3414(a)(1)(B) is a severity level 7 offense. K.S.A. 21-3414(b); see State v.
Winters, 276 Kan. 34, Syl. ¶ 2, 72 P.3d 564 (2003) (severity level 7 aggravated battery is
a lesser included offense of severity level 4 aggravated battery).

The terms "great bodily harm" and "bodily harm" are not defined by statute, nor
are any definitions provided in the Pattern Instructions for Kansas (PIK). See K.S.A. 21-
3414; PIK Crim. 3d. 53.00; PIK Crim. 3d 56.18; but see PIK Crim. 3d 56.18, Comment.

13

However, courts have consistently explained that the term "great bodily harm"
distinguishes the bodily harm necessary to establish aggravated battery "from slight,
trivial, minor, or moderate harm, and does not include mere bruising, which is likely to
be sustained in simple battery." See, e.g., State v. Green, 280 Kan. 758, 765, 127 P.3d
241, cert. denied 549 U.S. 913 (2006); State v. Dubish, 234 Kan. 708, 716, 675 P.2d 877
(1984); State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978); State v. Morton, 38
Kan. App. 2d 967, 971, 174 P.3d 904, rev denied 286 Kan. 1184 (2008).

Generally, whether particular injuries constitute "great bodily harm" as opposed to
"bodily harm" is a fact question for a jury to decide. Green, 280 Kan. at 765; Morton, 38
Kan. App. 2d at 971-72. Thus, Delacruz' suggestion that the jury should be instructed
regarding the distinction between the two terms has merit.

Further, while PIK Crim. 3d 56.18 does not incorporate the common-law
definition of "great bodily harm," that definition is referred to in the Comment to PIK
Crim. 3d 56.18. Further, our Supreme Court has held that while district courts are
strongly encouraged to use PIK instructions as written, if the particular facts of a case
require modifications or additions to a PIK instruction, the trial court should not hesitate
to do so. See State v. Gallegos, 286 Kan. 869, 878, 190 P.3d 226 (2008).

Certainly, it would have been helpful for the district court to modify the PIK
instruction in this instance to include a discussion of the distinction between "great bodily
14

harm" and "bodily harm." However, we need not decide whether the court's failure to do
so was error or even clear error. Instead, as discussed below, we find it necessary to
reverse Delacruz' conviction based upon the affirmative misstatement contained in
Instruction No. 4.

Instruction No. 4 advised the jury that "[t]here are no definitions that this Court
can give to you to define 'great bodily harm' or 'bodily harm.'" Delacruz argues this
misstatement implied to the jury that there was no meaningful distinction between the
two terms and essentially encouraged the jury to react impulsively to the evidence of
physical harm.

We agree. The district court affirmatively and erroneously misadvised the jury
that the two terms could not be defined, contrary to well-established case law. Moreover,
in considering whether a real possibility exists that the jury would have rendered a
different verdict if the trial error had not occurred, we are swayed by the district court's
own characterization of the evidence of "great bodily harm" as "thin." Finally, the effect
of this error may have been compounded by the district court's failure to properly instruct
the jury on misdemeanor battery. As discussed above, the district court should have
instructed the jury that simple battery consisted of "intentionally or recklessly causing
bodily harm" instead of "intentionally caus[ing] physical contact with another person
when done in a rude, insulting or angry manner."

15

We conclude that if the jury had been properly instructed on simply battery using
the phrase "bodily harm," and had not been mistakenly instructed that the terms "great
bodily harm" and "bodily harm" could not be defined, a real possibility exists that the
jury would have rendered a different verdict. Therefore, we reverse and remand this case
to the district court for a new trial.

Reversed and remanded.