State v. Williams

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,615

STATE OF KANSAS,
Appellee,

v.

KESHIA DENISE WILLIAMS,
Appellant.


SYLLABUS BY THE COURT

1.
A typical appeal follows a three-step process: (1) determining whether the
appellate court can or should review the issue, i.e., whether there is a lack of appellate
jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the
claim to determine whether error occurred below; and (3) assessing whether the error
requires reversal, i.e., whether the error can be deemed harmless.

2.

An appellate standard of review focuses on the deference to be afforded the lower
tribunal and establishes the framework by which a reviewing court determines whether
the lower tribunal erred.

3.

K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal.
It provides that no party may assign as error a district court's giving or failure to give a
particular jury instruction, including a lesser included crime instruction, unless: (a) that
2



party objects before the jury retires to consider its verdict, stating distinctly the matter to
which the party objects and the grounds for objection; or (b) the instruction or the failure
to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate
review is not predicated upon an objection in the district court.

4.
To determine whether an instruction or a failure to give an instruction was clearly
erroneous, the reviewing court must first determine whether there was any error at all. To
make that determination, the appellate court must consider whether the subject instruction
was legally and factually appropriate, employing an unlimited review of the entire record.

5.
If the reviewing court determines that the district court erred in giving or failing to
give a challenged instruction, then the clearly erroneous analysis moves to a reversibility
inquiry, wherein the court assesses whether it is firmly convinced that the jury would
have reached a different verdict had the instruction error not occurred. The party claiming
a clearly erroneous instruction maintains the burden to establish the degree of prejudice
necessary for reversal.

6.
Although a defendant has a fundamental right to present his or her theory of
defense, a defendant does not have a right to have the trial judge develop the defense
theory.

7.
Ordinarily, whether a victim has suffered great bodily harm is a question of fact
for the jury to decide.

3



8.
Where a defendant is charged with severity level 4 aggravated battery for having
caused great bodily harm to the victim, but there is evidence that would reasonably
justify a jury in convicting the defendant of severity level 7 aggravated battery for having
caused bodily harm in a manner whereby great bodily harm, disfigurement, or death can
be inflicted, the district court errs in failing to give a lesser included crime instruction on
the severity level 7 offense. But the failure to give a lesser included crime instruction is
clearly erroneous only if the reviewing court is firmly convinced that the jury would have
convicted the defendant of the lesser included offense, if given the choice.

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 8, 2010.
Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed September 21, 2012.
Judgment of the Court of Appeals affirming district court is affirmed. Judgment of the district court is
affirmed.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Stephen P. Jones, assistant county attorney, argued the cause, and Hillary McKinney, county
attorney, Lucas J. Nodine, assistant county attorney, Derek Schmidt, attorney general, and Steve Six,
former attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Keshia Denise Williams was convicted of aggravated battery for
stabbing her long-time friend, Sandra Kelly, multiple times in the head with a steak knife
during an altercation inside of Williams' home. On appeal, Williams claimed, inter alia,
that the trial court should have given certain instructions even though Williams did not
request them. We granted review of the instruction issues, in which Williams claims the
district court should have, sua sponte, given the following instructions: PIK Crim. 3d
4



54.17-A on no duty to retreat; PIK Crim. 3d 54.18 on use of force in defense of a
dwelling; and a lesser included offense instruction on severity level 7 aggravated battery.
We find that the failure to give the instructions was not clearly erroneous and therefore
the defendant is not entitled to obtain relief on appeal. We affirm the Court of Appeals'
affirmance of the district court.

FACTUAL AND PROCEDURAL OVERVIEW

On April 26, 2008, Kelly and her boyfriend, Steve Jones, had been staying with
Williams for 3 days. That night, Cynthia Edwards and Donald Ray McWilliams were
also present in Williams' house. The conflict between Williams and Kelly began when
Williams, while seated at the kitchen table, told Jones that he and Kelly, who was then in
the bedroom, would have to leave her house. Jones relayed comments between the two
women to and from the kitchen and bedroom until Kelly entered the kitchen to directly
engage in a verbal altercation with Williams.

Kelly repeatedly challenged Williams to "take it outside." Initially, Williams tried
to defuse the situation, but eventually she agreed to go outside. When Kelly went to the
bedroom to put on her tennis shoes, Williams feared that Kelly had obtained a weapon.
Accordingly, at some point after Williams got up from the kitchen table to follow Kelly
outside, she picked up a knife. The two only made it to the door before the physical
fighting began. According to Edwards, Kelly started that altercation by "throwing blows"
and pulling two braids out of Williams' hair. Williams responded by stabbing Kelly in the
head.

The fight stopped when Kelly realized blood was coming down her face.
McWilliams then took the knife from Williams, and Edwards threw it into some trees.
Police subsequently recovered a knife north of Williams' house, near some trees. But
5



evidence was not produced at trial that definitively established that the found knife was
the one used to stab Kelly.

Williams grabbed a towel and wrapped it around Kelly's head. She then called 911
and reported that she had stabbed Kelly, albeit she would later tell police that she
believed that she had acted in self-defense.

Jones and another person took Kelly to the hospital, where she received "about a
hundred stitches." Kelly would later say that she had not felt much, if any, pain; that the
only subsequent medical attention she required was to have the stitches removed; and that
her wounds healed in a couple of months.

The police interviewed Kelly at the hospital. She initially told them that she had
fallen and cut her head on a piece of glass. After the officers threatened to "get [her] for
making a false statement," Kelly related that she had been cut while fighting with
Williams.

Eventually, Williams was charged with and tried on one count of severity level 4
aggravated battery, K.S.A. 21-3414(a)(1)(A). Williams moved for a judgment of acquittal
at the close of the State's evidence. The trial court denied the motion, finding that,
although there was no evidence connecting the knife the police had found with Kelly's
stabbing injuries, there was evidence from which a jury could find that Kelly suffered
great bodily harm. In the process of explaining that ruling, the court opined that "a
hundred stitches is more than slight, trivial, minor or moderate harm."

During trial, the prosecutor cross-examined Williams about the fact that she did
not try to run from Kelly and hide or "do anything to get away from her." In closing
6



argument, the prosecutor returned briefly to the theme that Williams did not try to get
away from Kelly.

The trial judge gave the jury a general self-defense instruction, but Williams was
nevertheless found guilty of the level 4 aggravated battery charge. Upon appeal to the
Court of Appeals, a split panel affirmed the conviction. The dissent opined that the trial
court should have given a no duty to retreat instruction and a lesser included offense
instruction on severity level 7 aggravated battery, notwithstanding the absence of any
request for those instructions. See State v. Williams, No. 102,615, 2010 WL 4156759, at
*9-13 (Kan. App. 2010) (unpublished opinion) (Leben, J., dissenting). The majority
accepted the State's explanation that it proffered Williams' failure to run and hide as proof
that she was not afraid of Kelly and, therefore, resorting to a deadly weapon was
unjustified under the subjective prong of self-defense.

As noted, we granted review on the three issues involving unrequested
instructions.

STANDARD OF REVIEW AND THE CLEARLY ERRONEOUS STANDARD

Currently, when an instruction issue is being raised for the first time on appeal or
has not been properly preserved with an appropriate objection in the trial court, we
generally refer to K.S.A. 22-3414(3) and recite simply that "the standard of review is
whether the instruction is clearly erroneous." State v. Adams, 294 Kan. 171, 183, 273
P.3d 718 (2012); see State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011); State v.
Magallanez, 290 Kan. 906, 925, 235 P.3d 460 (2010); State v. Ellmaker, 289 Kan. 1132,
1145, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010). Often then, while still
discussing the standard of review, we will explain that "'[j]ury instructions are clearly
erroneous only if the reviewing court is firmly convinced that the jury would have
7



reached a different verdict had the error not occurred.' State v. Tully, 293 Kan. 176, 196,
262 P.3d 314 (2011)." Adams, 294 Kan. at 183.

That shorthand has tended to blur the distinction between what is to be decided on
appeal and how the appellate decision is to be made. The "what" that must be decided on
appeal typically follows a three-step process: (1) determining whether the appellate court
can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a
failure to preserve the issue for appeal; (2) considering the merits of the claim to
determine whether error occurred below; and (3) assessing whether the error requires
reversal, i.e., whether the error can be deemed harmless. How those decisions are made is
driven by the applicable standard of review, which "focuses on the deference due a lower
court, jury, or agency." 1 Childress & Davis, Federal Standards of Review § 1.03, p.1-17
(3d ed. 1999). In other words, the standard of review establishes the "framework by
which a reviewing court determines whether the trial court erred." Hall, Hall's Standards
of Review in Texas, 42 St. Mary's L.J. 3, 13 (2010).

In that vein, our defining clearly erroneous in terms of the likelihood of a different
jury verdict is more akin to stating a harmless error test than a standard of review,
because it "assumes that an error has occurred; it does not guide the appellate court in
determining whether an error has occurred or how much deference to give to a lower
court decision." Hodgkinson, Clear as Mud? "Clearly Erroneous" as a Standard of
Review for Instructional Claims, Kansas Bar Association Appellate Practice Newsletter,
at p. 2 (Spring 2012). Accordingly, we will pause to take a critical look at how we have
historically handled unpreserved appellate challenges to jury instructions with a view to
establishing a more precise analytical framework and more accurate standards of review.

Because we frequently cite to K.S.A. 22-3414(3) as the source of our standard of
review, we look first to that statute. It provides, in relevant part:
8




"No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless the party objects thereto before the
jury retires to consider its verdict stating distinctly the matter to which the party objects
and the grounds of the objection unless the instruction or the failure to give an instruction
is clearly erroneous." K.S.A. 22-3414(3).

Plainly, the statute sets forth the statutory preservation requirement that the
complaining party must have objected prior to jury deliberations in order to get an
appellate review of a claimed instruction error. A preservation rule for instruction claims,
requiring an objection in the trial court, was part of this State's jurisprudence prior to the
statute. For instance, in 1943, we declared that "the general rule is that where no
objection is made to the giving of an instruction during the trial and no request was made
for its modification or clarification and such instruction is not clearly erroneous a litigant
cannot be heard to complain on appeal." Sams v. Commercial Standard Ins. Co., 157
Kan. 278, 287, 139 P.2d 859 (1943); see also Collett v. Estate of Schnell, 194 Kan. 75,
79, 397 P.2d 402 (1964) (following rule from Sams); Montague v. Burgerhoff, 152 Kan.
124, 128-29, 102 P.2d 1031 (1940) (stating that when no objection is made to any of the
jury instructions, instructions become law of the case); Hogan v. Santa Fe Trial
Transportation Co., 148 Kan. 720, 724, 85 P.2d 28 (1938) ("No objection was made
thereto at the time of the trial and a complaint at this time is too late."); Jones v. A., T. &
S.F. Rly. Co., 148 Kan. 686, 695, 85 P.2d 15 (1938) (stating that instruction became law
of the case and jury's findings must control appeal because appellant "made no complaint
of it"); Lambert v. Rhea, 134 Kan. 10, 14-15, 4 P.2d 419 (1931) (stating that absent an
objection, jury instruction complaints are unavailing in the Supreme Court where
instructions correctly stated the law).

Just as plainly, K.S.A. 22-3414(3) includes an exception to the preservation
requirement where the instruction or failure to give an instruction was "clearly
9



erroneous." That exception also predated the statute. In Sams, we "conceded [that] the
[preservation] rule does not apply to an instruction which is in itself erroneous and an
appellant is not estopped from complaining of it as error by not having objected to it at
the time it was given." Sams, 157 Kan. at 288; see also Collett, 194 Kan. at 79 ("This
court adheres to the rule that where the instructions or directions of the trial court are in
themselves erroneous, an appellant is not estopped of complaining of them as error by not
having objected at the time they were given."); Richardson v. Business Men's Protective
Ass'n., 129 Kan. 700, Syl. ¶ 2, 284 P. 599 (1930) (stating that when an instruction
includes statements of law which are "clearly erroneous," it is not necessary, in order for
party to predicate error upon the giving of the instruction, to make an objection). The rule
was applied in criminal cases, as well. See State v. Ragland, 173 Kan. 265, 269, 246 P.2d
276 (1952) ("it is not necessary in order to predicate error thereon, that a defendant in a
criminal action object to the giving of an instruction to the jury, if the instruction is
clearly erroneous").

What the statute does not specifically tell us is the meaning of "clearly erroneous."
Likewise, it does not indicate that the district court is to be afforded any deference when
the instruction or failure to give the instruction is clearly erroneous. Over time, this
court's description and application of "clearly erroneous" has been fluid. In the earlier
cases, the term related to the content of the instruction, with the inquiry being whether the
instruction at issue on appeal correctly stated the law. The focus was on the patent bona
fides of the instruction, rather than the degree of error or prejudice caused by any error.
See, e.g., Lambert, 134 Kan. 10, Syl. ¶ 4; Richardson, 129 Kan. 700, Syl. ¶ 2; Foley v.
Crawford, 125 Kan. 252, Syl. ¶ 10, 264 P. 59 (1928).

State v. Severns, 158 Kan. 453, 456, 148 P.2d 488 (1944), nicely illustrates those
early cases that equated "clearly erroneous" with legally invalid. There, the defendant
argued for the first time on appeal that the murder instruction misstated the law by
10



indicating that murder at common law included the unlawful killing of a human being
committed in the perpetration of a misdemeanor. The Severns court first noted that the
appellant had not objected at trial, but then related that such an objection is "not
necessary, in order to predicate error, if the instruction is clearly erroneous." 158 Kan. at
456 (citing Richardson, 129 Kan. 700, Syl. ¶ 2). The court then held, as a matter of law,
that the statutory definition of murder did not include a killing "in perpetration of a
misdemeanor," i.e., the instruction was clearly erroneous. 158 Kan. at 457. The court
went on to reverse without engaging in a separate harmless error analysis, concluding
summarily that "[t]he instruction as given was erroneous and prejudicial." 158 Kan. at
458. It appears that clearly erroneous instructions were generally treated as being
presumptively prejudicial and, thus, reversible.

In 1970, the legislature enacted K.S.A. 22-3414(3), in the Code of Criminal
Procedure, which closely followed the provision regarding waiver of jury instructions
found at K.S.A. 60-251(b) in the Code of Civil Procedure. Both required a party to make
a proper objection to the giving or failure to give an instruction before the jury retired to
consider its verdict, in order to preserve an appellate claim, unless the instruction was
clearly erroneous. L. 1970, ch. 129, sec. 22-3414; L. 1963, ch. 303, sec. 60-251. For a
time, our appellate courts appeared to continue to equate "clearly erroneous" with legal
validity. See State v. Humbolt, 1 Kan. App. 2d 137, Syl. ¶ 4, 562 P.2d 123 (1977)
(instruction "not 'clearly erroneous' where it correctly states the law and does not mislead
the jury").

But later, the focus of the "clearly erroneous" analysis changed from a
determination of whether the instruction was patently erroneous to a determination of
whether the instruction was clearly prejudicial. Perhaps the first case to make that shift
was State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977), which declared:

11



"It is to be noted that none of the objections to instructions now raised were
presented to the trial court; therefore, our scope of review is limited to a determination of
whether the instructions are 'clearly erroneous.' (K.S.A. 22-3414[3]; State v. Birch, 221
Kan. 122, 558 P.2d 119 [1976]; State v. Nesmith, 220 Kan. 146, 551 P.2d 896 [1976];
State v. Suing, 210 Kan. 363, 502 P.2d 718 [1972].) An instruction is clearly erroneous
when the reviewing court reaches a firm conviction that if the trial error had not
occurred there was a real possibility the jury would have returned a different verdict."
(Emphasis added.)

Stafford did not cite to a source for its new definition of "clearly erroneous."
Certainly, there is nothing in the statutory language which would naturally lead one to the
conclusion that "clearly erroneous" was meant to be determined by a reversibility
standard, i.e., by the error's perceived effect on the trial outcome. In fact, one might find
it counterintuitive to make the reviewability of an issue hinge entirely upon its
reversibility.

Further, Stafford did not explain or acknowledge that it was changing the K.S.A.
22-3414(3) clearly erroneous exception from a certainty-of-error concept to a certainty-
of-prejudice concept. In fact, the opinion seems to rely more on the legal validity of the
challenged instructions than their impact on the verdict. Nevertheless, subsequent cases
picked up Stafford's definition of clearly erroneous. See State v. Houck, 240 Kan. 130,
139, 727 P.2d 460 (1986) (citing Maxwell and Stafford); State v. Maxwell, 234 Kan. 393,
399, 672 P.2d 590 (1983) (citing Stafford). Eventually, the Stafford version of the
meaning of "clearly erroneous" would achieve the status of "well known." See Ellmaker,
289 Kan. at 1139.

Additionally, after Stafford, in 1985, this court clearly and unequivocally assigned
the "standard of review" label to the term "clearly erroneous." State v. Peck, 237 Kan.
756, 764, 703 P.2d 781 (1985), declared:
12




"This 'clearly erroneous' standard is the correct standard of appellate review since
appellant gave no basis for his objection to the instruction at trial. We have held a party
may not assign as error the giving or failure to give an instruction unless he objects to the
instruction stating the specific grounds for the objection. Absent such specificity an
appellate court may reverse only if the instruction is clearly erroneous. State v. Korbel,
231 Kan. 657, Syl. ¶ 4, 647 P.2d 1301 (1982)."

Again, the origin of the statement designating clearly erroneous as the correct
standard of appellate review is unexplained. Peck's citation to Korbel only refers to
syllabus ¶ 4, where that opinion simply repeated the statutory language of K.S.A. 22-
3414(3). State v. Korbel, 231 Kan. 657, 647 P.2d 1301 (1982), did not recite any standard
of review on the applicable instruction issue in that case, much less call "clearly
erroneous" the "correct standard of appellate review." But again, subsequent cases fell
into step with Peck, consistently referring to "clearly erroneous" as a "standard of
review." See, e.g., State v. Kelly, 262 Kan. 755, 764, 942 P.2d 579 (1997); State v. Hunt,
257 Kan. 388, 394-95, 894 P.2d 178 (1995); State v. Crawford, 253 Kan. 629, Syl. ¶ 1,
861 P.2d 791 (1993); State v. Perez, 251 Kan. 736, 737, 840 P.2d 1118 (1992).

Obviously, designating "clearly erroneous" as a standard of review fails to impart
the normal information about how the appellate court intends to go about its review. For
instance, will the court conduct an unlimited review of the appellate record or look for an
abuse of discretion by the trial judge? Likewise, declaring that jury instructions are
clearly erroneous only if we are firmly convinced that the jury would have reached a
different verdict had the error not occurred does not reveal the process to be used to
determine whether there was any error at all.

But before we can more accurately describe the standard of review, we need to
clarify just what the court must decide when presented with a claim of error for giving or
13



failing to give an instruction that was not requested. As we noted earlier, the first step in
the appellate process is normally a reviewability inquiry. Obviously, K.S.A. 22-3414(3)
directly impacts that determination. Although it purports to withhold appellate
jurisdiction in the absence of a proper objection, the statute's exception effectively
conveys such jurisdiction and preserves for appellate review any claim that the
instruction error was clearly erroneous.

Moreover, to determine whether it was clearly erroneous to give or fail to give an
instruction, the reviewing court would necessarily have to first determine whether it was
erroneous. In other words, to determine whether the claim of error is properly reviewable,
the court must first determine whether there is an error, i.e., perform the merits review in
the second step of the normal appellate process. That review for error necessarily presents
a legal question subject to unlimited review.

Only after determining that the district court erred in giving or failing to give a
particular instruction would the reviewing court engage in the reversibility inquiry. Given
that it has been utilized for decades, the current definition of clearly erroneous sets up the
test to determine whether the instruction error requires reversal, i.e., whether the
reviewing court is firmly convinced that the jury would have reached a different verdict
had the instruction error not occurred. This assessment of whether there has been
injustice would involve a review of the entire record and a de novo determination. Cf.
State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis
performed de novo), cert. denied 132 S. Ct. 1594 (2012).

Before moving on, we pause to note that the burden of establishing reversibility
differs in this context from the harmless error analyses discussed in Ward. Whereas the
burden to show harmlessness generally shifts to the party benefitted by the error, the
burden to show clear error under K.S.A. 22-3414(3) remains on the defendant. Cf. United
14



States v. Vonn, 535 U.S. 55, 58-59, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002) (a silent,
nonobjecting defendant has burden to satisfy plain error rule in context of Federal Rule of
Criminal Procedure 11).

NO DUTY TO RETREAT INSTRUCTION

Williams' first complaint is that the trial judge, on his own, did not give the jury
the no duty to retreat instruction from PIK Crim. 3d 54.17-A (2007 Supp.). That
instruction tracked the statutory provision at K.S.A. 21-3218 and provided:

"A person who is not engaged in an unlawful activity and who is attacked in a
place where (he)(she) has a right to be has no duty to retreat. (He)(She) has the right to
stand (his)(her) ground and to meet force with force." PIK Crim. 3d 54.17-A (2007
Supp.).

Citing to Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d
297 (1973), Williams first casts the issue in terms of her fundamental right to present a
full and complete defense. But nothing precluded the defense from making the concept of
no duty to retreat a part of its theory of defense by requesting the instruction. Requesting
an instruction signals the trial judge that its contents are part of the defense theory.
Certainly, a defendant does not have a constitutional right to have the trial judge develop
the defense theory.

Moreover, characterizing the issue as a constitutional claim does not significantly
advance Williams' procedural posture. Even constitutional grounds for reversal are not
properly before the appellate court for review if they are being asserted for the first time
on appeal. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007).

15



Accordingly, Williams can pass the first step of establishing that the issue is
properly reviewable by this court only if the failure to give a no duty to retreat instruction
was clearly erroneous per K.S.A. 22-3414(3). As noted, to get to that determination, we
must first consider whether it was error at all to omit the instruction.

Williams relies heavily on our decision in State v. Scobee, 242 Kan. 421, 748 P.2d
862 (1988). There, the victim and the defendant had an altercation while in separate
vehicles on public roads. After the defendant returned to and parked in the driveway of
his parent's home, the victim, who had followed the defendant home, charged at the
defendant. The defendant shot and killed the victim. We reversed the defendant's
involuntary manslaughter conviction based upon the trial court's refusal to give the no
duty to retreat instruction as a supplement to the general self-defense instruction. 242
Kan. at 429. The Scobee decision was heavily influenced by the State's trial strategy of
emphasizing that the defendant had failed to retreat, specifically arguing that he could
have driven to a police station or simply remained in his car and honked the horn.

Williams suggests that this case is so factually similar to Scobee as to require the
same result. Granted, the prosecution here used the same tactic of pointing out to the jury
that the defendant had not reacted to the victim's aggression by retreating. Unlike the
Court of Appeals majority, we do not find the State's explanation of the purpose for that
strategy to be reasonably persuasive. The specific statement during closing was: "She
claims self-defense. She never tried to get away. She never tried to hide." The patently
obvious inference to be drawn from that argument is that for a defendant to legitimately
claim self-defense, he or she must have first tried to get away or tried to hide. A no duty
to retreat instruction would have dispelled the State's implication that there was a duty to
retreat.

16



But the differences in Scobee are more compelling than the similarities. First and
foremost, Scobee involved a different procedural posture; Scobee requested that the trial
judge give the no duty to retreat instruction. That distinction is a game changer. If
Williams had requested the instruction here, it is possible that we would have found it to
have been a legally and factually appropriate instruction that was supported by some
evidence, i.e., found that the district court had erred in refusing to give the requested
instruction. See State v. Plummer, 295 Kan. ___, ___, ___ P.3d ___ (August 24, 2012)
(the district court errs if it refuses to give a requested instruction that is legally
appropriate and factually supported by some evidence). In that event, we would have
been looking at whether the State had carried its burden to establish harmless error, i.e.,
"if there is a reasonable probability that the error will or did affect the outcome of the trial
in light of the entire record." Ward, 292 Kan. at 569. Instead, the defendant, who must
assume at least some of the responsibility for the omitted instruction by failing to request
it, bears the burden of firmly convincing us that the jury would have reached a different
verdict had the error not occurred. For the reasons discussed below, Williams did not
clear that high hurdle.

Factually, this case is more akin to what occurred in State v. Saleem, 267 Kan.
100, 977 P.2d 921 (1999). There, the defendant and the victim started an argument inside
the defendant's sister's house and then agreed to step outside to settle their differences.
Once outside, a shoving match ensued, albeit the evidence was conflicting as to which
person was the aggressor in the shoving match. After the shoving caused the defendant to
fall to the ground, he pulled a weapon and fatally shot the victim, firing four shots in the
process. This court found that a no duty to retreat instruction was not required in that
scenario. 267 Kan. at 113-15.

In reaching its decision, Saleem analyzed both Scobee and State v. Ricks, 257 Kan.
435, 437, 894 P.2d 191 (1995), but found Ricks to be more applicable. Ricks involved a
17



confrontation in a public parking lot. The Ricks opinion limited Scobee's holding to the
"infrequent factual situations . . . with such elements as a nonaggressor defendant being
followed to and menaced on home ground." Ricks, 257 Kan. at 437.

In this case, Williams agreed to go outside with Kelly to settle their argument. She
must have thought that a physical altercation was likely, because she armed herself
enroute. In essence, the evidence would support a reasonable inference that Williams
agreed to engage in mutual combat with Kelly and took a knife to a fistfight. Granted, the
testimony was that Kelly threw the first punch. But it seems strained to say that a person
who has agreed to fight another is nevertheless a "nonaggressor" because the other
combatant beat that person to the first punch. Moreover, Williams aggressively
responded to the commencement of the fight by stabbing Kelly repeatedly in the head.

Except for the fact that the trial court instructed the jury on self-defense, it is
questionable whether a no duty to retreat instruction was factually appropriate in this
case. Nevertheless, even if we were to find that omitting the instruction was erroneous,
Williams has failed to establish the requisite level of prejudice. At the time Kelly threw
the first punch, Williams had agreed to "take it outside" and had armed herself with a
deadly weapon. The jury heard and rejected the general self-defense instruction. Even
Scobee said that ordinarily the general self-defense instruction, then contained in PIK
Crim. 2d 54.17, would be sufficient. 242 Kan. at 428. Accordingly, we are not firmly
convinced that the instruction would have made a difference in the jury verdict.

USE OF FORCE IN DEFENSE OF DWELLING INSTRUCTION

Next, Williams contends that the trial judge should have given the defense of
dwelling instruction, set forth in PIK Crim. 3d 54.18 (2007 Supp.), which provides:

18



"Defendant claims (his)(her) conduct was permitted as a lawful defense of
[(his)(her)] (dwelling) (occupied vehicle).
"Defendant is permitted to use force to the extent that it appears to (him)(her) and
(he)(she) reasonably believes that such force is necessary to prevent another person from
unlawfully (entering into) (remaining in) (damaging) [(his)(her)] (dwelling) (occupied
vehicle). Reasonable belief requires both a belief by defendant and the existence of facts
that would persuade a reasonable person to that belief.
"[Defendant is permitted to use deadly force to prevent another person from
unlawfully (entering into) (remaining in) (damaging) [(his)(her)] (dwelling) (occupied
vehicle) only when (he)(she) reasonably believes deadly force is necessary to prevent
death or great bodily harm to (himself)(herself) (someone else). Reasonable belief
requires both a belief by defendant and the existence of facts that would persuade a
reasonable person to that belief.]
"When use of force is permitted as a lawful defense of [(his)(her)] (dwelling)
(occupied vehicle), there is no requirement to retreat."

Again, Williams did not request the instruction, so our review is precluded unless
the failure to give the instruction was clearly erroneous. Williams is so far from reaching
that standard that we will make short work of this issue.

Simply put, Williams' dwelling was not under attack. Her argument is that because
she had told Jones that he and Kelly could no longer stay at her house, Kelly's status
transformed from a houseguest to a trespasser. Therefore, the argument continues,
Williams could use force to prevent Kelly from remaining in the dwelling. If Williams
wanted to be creative in crafting an argument that would have justified the giving of the
defense of dwelling instruction, she should have done so in the district court. We will
certainly not require trial judges to divine unique defense theories, especially where such
theories are not revealed by the evidence.

19



Williams testified that she tried to defuse the argument by asking Kelly to sit down
at the kitchen table to talk. One who has been invited to sit at the kitchen table is really
not a trespasser, even if that person's status as a houseguest has been terminated.
Moreover, when the two were at the front door, it was for the purpose of going outside to
fight. Williams was not using force to prevent Kelly from remaining in the house; Kelly
was voluntarily headed out the door. In short, the defense of dwelling instruction was not
applicable to the facts of this case, and it was not clearly erroneous to fail to give that
instruction.

LESSER INCLUDED OFFENSE INSTRUCTION

Finally, Williams contends that the trial judge should have, on his own, given a
lesser included offense instruction for severity level 7 aggravated battery. That version of
aggravated battery is defined 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." K.S.A. 21-3414(a)(1)(B). In contrast, the severity level 4 version
with which Williams was charged, tried, and convicted is defined in relevant part as
"[i]ntentionally causing great bodily harm to another person." K.S.A. 21-3414(a)(1)(A).
In ruling on Williams' motion for judgment of acquittal, which is referred to in the record
as a motion for directed verdict, the district court found that the State had not proved that
the knife the police found was used to inflict the injuries on Kelly, indicating a failure of
proof that bodily harm was caused with a deadly weapon. Therefore, the relevant
difference between the two crimes in this case is whether Williams actually caused great
bodily harm to Kelly or whether she merely caused bodily harm but did so in a manner
that could have inflicted great bodily harm.

Again, the reviewability of the issue is governed by the clearly erroneous
exception in K.S.A. 22-3414(3), which specifically refers to the "failure to give an
20



instruction, including a lesser included crime instruction." On the way to making a clearly
erroneous determination, we must necessarily look first at whether it was legally and
factually appropriate for the district court to give a lesser included offense instruction on
severity level 7 aggravated battery. See Plummer, 295 Kan. ___, Syl. ¶ 1.

The instruction would have been legally appropriate because "level 7 aggravated
battery is a lesser included offense of level 4 aggravated battery." State v. Hernandez, 294
Kan. 200, 205, 273 P.3d 774 (2012); accord State v. Winters, 276 Kan. 34, 38, 72 P.3d
564 (2003). Further, the giving of lesser included crime instructions is not a matter of
discretion with the trial judge. K.S.A. 22-3414(3) directs that "where there is some
evidence which would reasonably justify a conviction of some lesser included crime . . . ,
the judge shall instruct the jury as to the crime charged and any such lesser included
crime." (Emphasis added.)

Here, there was obviously evidence of bodily harm. Eyewitnesses testified that
Williams stabbed Kelly in the head, causing blood to flow down her face. Kelly testified
that it took approximately 100 stitches to close her head wounds. Further, a reasonable
jury could certainly find that stabbing someone in the head with a steak knife is a
"manner whereby great bodily harm, disfigurement or death can be inflicted" under
K.S.A. 21-3414(a)(1)(B). Accordingly, there was the requisite evidence to support the
giving of an instruction on severity level 7 aggravated battery.

Williams attempts to portray the trial judge's statement that "a hundred stitches is
more than slight, trivial, minor or moderate harm" as being a finding that the injuries
suffered by Kelly were "great bodily harm" as a matter of law, thus precluding the lesser
included offense instruction on merely "bodily harm." But that takes the judge's remarks
completely out of context. He was ruling on a defense motion for directed verdict that
required the court to determine whether the State had presented a prima facie case before
21



resting, i.e., whether it had presented sufficient evidence from which a rational jury could
find each of the crime's elements beyond a reasonable doubt. One of those elements was
that Williams had caused "great bodily harm." That term has been defined as "more than
slight, trivial, minor, or moderate harm, that does not include mere bruising, which is
likely to be sustained by simple battery." State v. Green, 280 Kan. 758, 765, 127 P.3d
241, cert. denied 549 U.S. 913 (2006). Therefore, the district court was merely opining
that the evidence that Kelly required 100 stitches would be sufficient to support a jury
finding of great bodily harm, not that the court was making that finding as a matter of
law.

Nevertheless, we must consider the question, even if the trial judge did not. If the
evidence established, as a matter of law, that Kelly suffered great bodily harm, then the
evidence could not reasonably justify a conviction for causing mere bodily harm, and a
lesser included offense instruction on the severity level 7 version of aggravated battery
was not required.

Ordinarily, whether a victim has suffered great bodily harm is a question of fact
for the jury to decide. Green, 280 Kan. at 765. But that seemingly straightforward
proposition has become muddled by some opinions that chose to take the decision away
from the jury. See, e.g., State v. Moore, 271 Kan. 416, 420-21, 23 P.3d 815 (2001)
(holding burns and scarring from hot iron on victim's legs, breast, and inner thighs
constituted great bodily harm as matter of law); State v. Valentine, 260 Kan. 431, 435,
921 P.2d 770 (1996) (holding that bullet wound which severed spinal cord and caused
paralysis constituted great bodily harm as matter of law); State v. Gideon, 257 Kan. 591,
614, 894 P.2d 850 (1995) (holding that rape or aggravated criminal sodomy constituted
great bodily harm as matter of law); Doolin v. State, 24 Kan. App. 2d 500, 503-04, 947
P.2d 454 (1997) (holding that bullet wound which required hip bone and hip socket to be
replaced constituted great bodily harm as matter of law); but cf. State v. Brice, 276 Kan.
22



758, 773-74, 80 P.3d 1113 (2003) (bullet that goes through body without hitting any vital
organs may or may not cause great bodily harm); State v. Vessels, No. 96,421, 2008 WL
1847374, at *5 (Kan. App. 2008) (unpublished opinion) (broken bones do not necessarily
constitute "great bodily harm" as matter of law).

Here, Kelly's own testimony sent mixed signals to the jury as to whether her
injuries were great bodily harm or mere bodily harm. Although she related that her
wounds required a large number of stitches, she also minimized the pain she had suffered
and said that she did not require any follow-up medical services other than to remove the
stitches. A reasonable and rational jury could have gone either way: bodily harm in a
manner that could have caused great bodily harm, or great bodily harm. Accordingly, it
was error not to give the lesser included offense instruction on severity level 7 aggravated
battery.

But our determination that the omission of the instruction was erroneous does not
answer the question of whether the failure to give the unrequested instruction was clearly
erroneous. In other words, just because we find that a rational jury could have found
Williams guilty of the lesser included offense does not necessarily mean that we believe
that the jury would have convicted her of the lesser offense. Here, the evidence is such
that we simply cannot be firmly convinced of which crime the jury might have chosen, as
between the severity level 4 and severity level 7 versions. That degree of certainty, or
perhaps more accurately, that degree of uncertainty falls short of what is required to meet
the clearly erroneous standard. Accordingly, we affirm Williams' conviction.

Affirmed.