State v. Conder

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NOT DESIGNATED FOR PUBLICATION

No. 116,561

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS GLENN CONDER,
Appellant.


MEMORANDUM OPINION

Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed May 11, 2018.
Affirmed.

James Crux, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for
appellant.

Jodi Lifin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and BURGESS, S.J.

PER CURIAM: On Travis Glenn Conder's wedding night, he shot his brother-in-law
and his mother-in-law. The jury acquitted him of all charges related to the shooting of his
brother-in-law, but convicted him of reckless aggravated battery of his mother-in-law.
Conder's appeal raises several claims of pretrial, trial, and posttrial error. Finding no
reversible error, we affirm.



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Factual and procedural background

Travis Conder and Shanda Britton were married on July 18, 2015, in Wamego,
Kansas. They celebrated with their friends and family at the reception until about
midnight. Attendees drank alcohol socially at the reception, as did Conder, Shanda, Tyrel
Britton (Conder's brother-in-law), and Rose Britton (Conder's mother-in-law).

The family headed back to the home of Shanda's parents, where Conder, Shanda,
and Tyrel also lived. After they returned to the Britton home, Shanda took Tyrel for a
drive in her truck. This irritated Conder, as he thought it was a waste of gas. When
Shanda and Tyrel returned, Conder and Shanda got into an argument.

During the argument, Tyrel walked toward Conder and Shanda, put his arm
around Conder and said something to the effect of "hey, bro knock it off. This is . . . my
sister; this is your wife; it's your wedding night." Conder and Tyrel started cussing at
each other and calling each other names. Conder was about 5'11" tall and weighed 125
pounds, while Tyrel was 6'7" tall and weighed about 300 pounds.

The name-calling may have escalated into a physical altercation between Tyrel
and Conder—testimony conflicts on that point. At trial, Tyrel said he did not punch or
attempt to punch Conder. However, in the ambulance on the way to the hospital, he told a
law enforcement officer that he threw a punch at Conder but did not think it landed. Tyrel
told another law enforcement officer that he tried to punch Conder after Conder bumped
chests with him, although Tyrel was not sure whether he actually hit him. Shanda
testified that Tyrel "[p]opped [Conder] in the jaw." Conder said that Tyrel hit him in the
face.

Rose got between the two men and told Tyrel to walk away to calm down. Tyrel
walked towards the elementary school across the street and smoked a cigarette. Conder
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went back into the house and woke up his friend Robert Ford, who was sleeping on the
couch, and told him that Tyrel had punched him. Conder got his loaded 9mm handgun,
stuck it in his waistband, and returned to the porch.

Tyrel stayed across the street for 20 to 30 minutes, then walked back toward the
house. Testimony conflicts about whether Tyrel threatened Conder at this point. Tyrel
and Rose both testified that Tyrel asked Rose—or was about to ask her—if he could go to
bed. In contrast, Ford testified that Tyrel loudly threatened Conder when Tyrel came back
across the street. Conder and Shanda also testified that Tyrel was angry and threatened to
kill Conder. As Tyrel approached the house, Conder stepped toward Tyrel and drew his
gun. Tyrel continued approaching Conder and said, "[O]h, you have a gun; you're gonna
pull a gun on me. You better use it. You better f---ing shoot me, pussy." Rose stepped
toward the men, who were approximately 12 feet apart, and Tyrel pushed her out of the
way.

Conder then shot Tyrel multiple times, unloading his clip. Tyrel was shot in his
forearm, right thigh, left hip, left knee, and left calf. Conder then went back inside the
house, ejected the magazine, and reloaded the gun with another full clip. He claimed that
this conformed to the self-defense training he had received. Conder went back outside,
apologized, and walked to his uncle's house down the street. Conder told his father, who
was there, that he had messed up, then gave him the gun.

Rose was also hit by a bullet during the incident. Conder and Shanda testified that
Rose moved into the line of fire, but Rose testified that she did not jump in front of Tyrel
when she was shot, and that she would never jump in front of a bullet because she is
scared of guns. Tyrel and Rose recovered from their gunshot wounds.

Conder thought he fired 10 rounds at Tyrel. He said that he aimed at Tyrel's legs to
stop him and had no intention of killing him. Evidence from the scene included eight
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spent shell casings and an unfired round. The 9mm handgun was recovered with a bullet
in the chamber and a full magazine. Additionally, a high capacity magazine that held 15
bullets was found beneath a couch cushion inside the Britton home, with 2 bullets
remaining inside the magazine. Conder said he believed that he shot Tyrel legally.

Conder was arrested and cooperated with law enforcement. He was charged with
one count of attempted second-degree murder for shooting Tyrel, and one count of
reckless aggravated battery for shooting Rose.

Before trial, Conder filed a motion for immunity from prosecution. At the
combined preliminary and immunity hearing, Tyrel, Rose, Shanda, Ford, and four law
enforcement officers testified for the State. Wendi Reeves, a family friend, testified for
the defense. The district court denied Conder's motion for self-defense immunity, finding
the State had met its burden to establish probable cause that the defendant acted without
reasonable justification in the use of force.

Before trial, the State filed a motion in limine to exclude evidence of a 2013
altercation between Conder and Tyrel. The court granted that motion and then
reconfirmed it during trial. At trial, Conder's attorney requested a self-defense instruction.
The district court denied that request based on its determination that Conder had been the
initial aggressor in the shooting. The jury acquitted Conder of all charges related to his
shooting of Tyrel but convicted Conder of reckless aggravated battery of Rose.

After trial, the State asked the district court to find that the crime had been
committed with a firearm—a deadly weapon—and impose offender registration
requirements. Conder objected, contending that the jury, rather than the judge, must
determine whether he had used a deadly weapon. The district court found that Conder
used a deadly weapon and imposed violent offender registration requirements. The
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district court sentenced Conder to 8 months in prison with 12 months' postrelease
supervision. Conder timely appealed.

Did the district court properly deny Conder's request for a jury instruction on self-
defense?

We first address Conder's assertion that the district court erred by denying his
request for a jury instruction on self-defense.

Standard of review

When analyzing jury instruction issues, we follow 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 to determine whether error occurred below; and (3) assessing
whether the error requires reversal, i.e., whether the error can be deemed harmless. State
v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018). "If the district court erred, and the error
did not violate a constitutional right, 'the error is reversible only if [the court]
determine[s] that there is a "reasonable probability that the error will or did affect the
outcome of the trial in light of the entire record."' State v. Plummer, 295 Kan. 156, 168,
283 P.3d 202 (2012) (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011])."
State v. Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016).

Analysis

Conder admits this issue is somewhat complicated because the jury acquitted him
of any offense against Tyrel. But Conder asserts that he was entitled to a self-defense
instruction in relation to the charge of aggravated battery against Rose because he was
justified in acting in self-defense against Tyrel and his lack of intent follows the bullet.
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We first consider whether Conder has preserved this issue. Conder's attorney
requested a self-defense instruction in his proposed jury instructions and during the jury
instructions conference, so he properly preserved this issue for appeal.

We next consider whether error occurred below. To do so, we determine whether
the instruction was legally and factually appropriate, employing an unlimited review of
the entire record. McLinn, 307 Kan. at 318.

Factually appropriate

A defendant is "entitled to instructions on the law applicable to his or her defense
theory if there is sufficient evidence for a rational factfinder to find for the defendant on
that theory." State v. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012). The use of
deadly force may be justified when there is a reasonable belief that the use of force is
necessary to prevent imminent death or great bodily harm. K.S.A. 2017 Supp. 21-
5222(b). However, the justified use of force is limited by K.S.A. 2017 Supp. 21-5226,
which provides, in part, that the justification is not available to an initial aggressor or a
defendant who:

"(b) initially provokes the use of any force against such person or another, with
intent to use such force as an excuse to inflict bodily harm upon the assailant; or
"(c) otherwise initially provokes the use of any force against such person or
another, unless:
(1) Such person has reasonable grounds to believe that such person is in
imminent danger of death or great bodily harm, and has exhausted every reasonable
means to escape such danger other than the use of deadly force." K.S.A. 2017 Supp. 21-
5226.

Kansas courts have generally held that when an individual leaves a confrontation, then
returns with a loaded firearm and shoots the other person, that individual is not entitled to
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a self-defense instruction because that person is acting as an initial aggressor. State v.
Salary, 301 Kan. 586, 597, 343 P.3d 1165 (2015); State v. Harmon, 254 Kan. 87, 91, 865
P.2d 1011 (1993).

Consistent with that general rule, the district court found that Conder was an initial
aggressor not entitled to a self-defense instruction. The district court looked at the
evidence in the light most favorable to the defendant and found that if any physical
contact occurred between Tyrel and Conder during the initial incident, it was an
unprovoked punch from Tyrel. But no physical damage from the punch was visible at the
hospital soon thereafter. After the initial argument, Rose sent Tyrel across the street to
calm down and he was gone for 20 to 30 minutes. The court found that at this point, the
initial confrontation was over. Conder went inside, spoke to his friend, got his gun,
waited a few minutes, and then went back outside. When Tyrel returned, Conder shot
him.

In determining that Conder was the initial aggressor, the district court relied on
Salary, 301 Kan. at 586. In Salary, the defendant shot and killed his uncle after they got
into an argument. The defendant argued that he acted in self-defense because he believed
his uncle was armed, was known to be aggressive, and had weapons in the home. The
Kansas Supreme Court found that the defendant became the initial aggressor because he
did not leave his uncle's home when asked, remained in the house, armed himself, and
went to meet his uncle, effectively reinserting himself into the situation. That provocation
prohibited the defendant from receiving a self-defense instruction. 301 Kan. at 596-98
(citing many Kansas cases holding no self-defense instruction is warranted where the
defendant could have avoided the fatal confrontation by staying away).

This case is similar to Salary, despite Conder's contentions otherwise. Conder
went inside following the initial argument with Tyrel on the porch. Conder spoke briefly
with Ford, went into his room and armed himself with a loaded gun, sat for a few
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minutes, and then went back outside. No immediate threat existed when Conder went
inside and armed himself, as Tyrel had walked across the street, was cooling off, and was
unarmed. At that point, the conflict had ended and Conder lacked reasonable grounds to
believe 20 minutes or more later that he was in imminent danger of death or great bodily
harm. The district court properly found that the shooting was not part of the initial
altercation; instead, Conder acted as the initial aggressor in starting a new confrontation
over 20 minutes later.

Conder contends that this case is different from Salary in two respects. First, he
claims that he went back outside solely to speak with Shanda. But Conder testified that
after he grabbed his loaded gun, he went outside to speak with Shanda as well as to
ensure that Tyrel "was actually cooling off, as he was supposed to do." And Conder
would have had no need for a loaded firearm if his intent were merely to speak with
Shanda. The facts thus indicate that he went outside at least in part to engage with Tyrel.
Second, Conder points out that he lived at the house so he had no duty to retreat, unlike
the defendant in Salary who was asked to leave his uncle's home. But Tyrel also lived at
that same house, and we cannot rationally compare him to an intruder as Conder invites
us to do. Conder did not exhaust every reasonable means to escape whatever danger
Tyrel may have posed to him—he could have remained in the house rather than
reengaging Tyrel with a loaded firearm.

For the above reasons, an instruction on self-defense was not factually appropriate.
Thus, we do not reach the intriguing question whether the self-defense instruction was
legally appropriate. Compare State v. Bradford, 27 Kan. App. 2d 597, 602, 3 P.3d 104
(2000) (finding that a charge of reckless conduct is based upon an unintentional act and is
inconsistent with a self-defense theory because the person acting in self-defense intends
to inflict injury on the attacker), superseded on other grounds by statute as stated in State
v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004), with Holloman v. State, 51 P.3d 214, 221-
22 (Wyo. 2002) (finding failure to give self-defense instruction reversible error because
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one's intent, under the doctrine of transferred intent, carries the lack of criminal intent to
the unintended consequences and thus precludes criminal responsibility). The district
court did not err by denying Conder's request for a jury instruction on self-defense.

Did the district court err by denying Conder immunity from prosecution?

We next consider Conder's related claim that the district court erred by denying his
motion to find him immune from prosecution. When reviewing this issue, we apply a
bifurcated standard of review: we review the district court's factual findings for
substantial competent evidence and review the ultimate legal conclusions de novo. State
v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30 (2017).

Analysis

A Kansas statute grants immunity from prosecution to individuals who use deadly
force in self-defense. K.S.A. 2017 Supp. 21-5231(a). But consistent with the self-defense
law addressed above, no immunity is available to a person who initially provokes the use
of force.

At an immunity hearing, the State has the burden to establish probable cause that
the person asserting immunity was not justified in using force. State v. Ultreras, 296 Kan.
828, 845, 295 P.3d 1020 (2013). The district court's determination of probable cause must
be based upon stipulated facts or upon evidence received at an evidentiary hearing.
Hardy, 305 Kan. at 1011-12. The district court must consider the totality of the
circumstances, weigh the evidence without deference to the State, and determine whether
the State established probable cause that the defendant's use of force was not statutorily
justified. 305 Kan. at 1011.

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At Conder's evidentiary immunity hearing, the district court stated that it would
look at the evidence in the light most favorable to the State. We presume that it actually
did so. This was error, as the State acknowledges, because the district court should have
viewed the evidence without deference to the State. Thus our task is to determine whether
that error was harmless.

Harmless error analysis

We apply the statutory harmless error standard to this issue. Ultreras, 296 Kan. at
845. Under that standard, an error is harmless unless "there is a reasonable probability the
error affected the outcome of the trial in light of the entire record." State v. Crawford, 300
Kan. 740, 746, 334 P.3d 311 (2014). The party benefiting from the error—in this case,
the State—bears the burden of proving the error was harmless. See State v. Logsdon, 304
Kan. 3, 39, 371 P.3d 836 (2016).

The State has met that burden. Probable cause at a preliminary examination
requires evidence causing a person of ordinary prudence and caution to entertain a
reasonable belief of the defendant's guilt. State v. Berg, 270 Kan. 237, 238, 13 P.3d 914
(2000). A sufficient claim of self-defense requires "evidence supporting both (1) a
subjective belief on the part of the defendant that (a) the use of unlawful force is
imminent and (b) the use of force is necessary and (2) an objective determination that a
reasonable person would have come to the same conclusions." State v. Andrew, 301 Kan.
36, 45, 340 P.3d 476 (2014). Conder testified to his subjective belief that deadly force
was necessary to prevent imminent use of unlawful force against him. The State,
therefore, needed to establish probable cause that a reasonable person would not have
believed that deadly force was necessary in self-defense.

Conder focuses on selected evidence from the immunity hearing: Tyrel's
admission that he was upset that evening; Rose's statement that Tyrel's friend put Tyrel in
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a headlock to prevent him from attacking his father in the car on the way home from the
wedding; Shanda's testimony that Tyrel had hit Conder before Tyrel went to cool off;
Shanda's testimony that Tyrel threatened to kill Conder as Tyrel returned to the house;
and Wendi Reeves' testimony that Rose repeatedly said on the night of the shooting that
Conder had acted in self-defense.

Conder also notes the testimony by four law enforcement officers. One
interviewed witnesses at the hospital. Tyrel told the officer that Conder chest-bumped
him before he threw a punch, but Tyrel was unsure if he actually hit Conder. Shanda told
an officer that Conder acted in self-defense because Tyrel was much bigger than Conder,
and he could "get rather upset sometimes." Conder told a law enforcement officer that he
took out his gun when Tyrel began to walk toward him, and that he did not say anything
to provoke him. Conder told the officer that he did not want to kill Tyrel, but that because
of Tyrel's size, he feared for his safety. Conder also told the officer that he went back into
the house and reloaded his gun, walked outside and apologized, then walked to his
uncle's house. Conder acknowledged that if he had stayed inside the house, the incident
likely would not have happened.

We assume, for purposes of this determination, that Tyrel hit Conder before going
across the street to cool off. Although testimony established a significant size difference
between Tyrel and Conder, the men had known each other and had lived together off and
on for 10 years. It is undisputed that Conder went back inside to get his gun when Tyrel
went across the street, and that Tyrel stayed across the street for 20 to 30 minutes before
he returned to the house where he lived. It is disputed whether Tyrel then threatened to
kill Conder. But if we assume that he did threaten Conder, we must put that threat into its
context. The two men fought constantly—Tyrel's saying he would kill Conder was a
"common statement," a "normal threat," unconcerning to Shanda—Conder's wife and
Tyrel's sister. Conder went out to meet Tyrel, who was unarmed. Conder fired eight
shots, hitting both Tyrel and Rose, when Tyrel was still about 12 feet away from Conder.
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The shooting was described as "rapid-fire" and "overkill." Conder then went inside and
exchanged his empty clip for a fully loaded one.

We are convinced that had the district considered all the evidence presented at the
immunity hearing without giving deference to the State, it would nonetheless have found
the State met its burden to show probable cause that a reasonable person would not have
believed that Conder's use of deadly force was necessary in self-defense. Thus Conder
was not entitled to immunity. We are also persuaded that the district court's error in
applying an incorrect legal standard at the immunity hearing was harmless because there
is no reasonable probability that the error affected the outcome of Conder's trial. See
Ultreras, 296 Kan. at 845.

Did the district court properly exclude evidence of prior violent acts by the victim?

Following the preliminary hearing, the State filed a motion in limine asking the
district court to exclude evidence of a 2013 incident in which Tyrel had allegedly
strangled Conder. Conder proffered that siblings Shanda and Tyrel got into an argument
and Tyrel began strangling Shanda. Conder then jumped on Tyrel's back and put him in a
chokehold which caused Tyrel to release Shanda. Conder then went outside but Tyrel
followed him a few minutes later and strangled him until he nearly blacked out. Tyrel
stopped only when Shanda hit him in the back with a rake. Conder suffered a bruised
esophagus from the ordeal. Tyrel was charged with battery against Conder but that charge
was dismissed.

Defense counsel argued this event was relevant because it impacted Conder's state
of mind at the time of the shooting in July 2015. The district court disagreed. It found the
evidence irrelevant and granted the State's motion in limine prohibiting the introduction
of testimony about the July 2013 incident. At trial, defense counsel again offered the
evidence and the district court again excluded it, holding it was too remote in time and
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was irrelevant. The district court recognized that this kind of evidence could be relevant,
but was not relevant here, stating:

"[The incident] occurred on July 14 of 2013. It didn't involve[] a firearm. And since that
time [Tyrel and Conder] continued to live together, as I just heard the defendant testify, a
fairly good relationship in the same household. He's a groomsman in the defendant's
wedding."

Conder asserts that the district court erred by doing so.

Standard of review

This court's first analysis is whether the evidence is relevant. Generally, all
relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is evidence having
any tendency in reason to prove any material fact. K.S.A. 60-401(b); see State v. Page,
303 Kan. 548, 550, 363 P.3d 391 (2015). This definition encompasses two elements:
a materiality element and a probative element. Standards of review vary for each element.

Evidence is material when the fact it supports is in dispute or in issue in the case.
State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). The appellate standard of
review for materiality is de novo. Page, 303 Kan. at 550-51. Evidence is probative if it
has any tendency to prove any material fact. State v. Dupree, 304 Kan. 43, 63, 371 P.3d
862 (2016). We review the district court's assessment of the probative value of evidence
under an abuse of discretion standard. Page, 303 Kan. at 550. Judicial discretion is
abused if the judicial decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on
an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256
P.3d 801 (2011).



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Analysis

Relevancy requires some logical connection between the asserted facts and the
inference or result they are intended to establish. See State v. Reid, 286 Kan. 494, 502-03,
186 P.3d 713 (2008). The district court found no logical connection between the 2013
incident and the 2015 shooting, so found the 2013 incident was not relevant and was too
remote in time. The determination of remoteness and relevance is within the discretion of
the district court and we will overturn it only if the decision was arbitrary, fanciful, or
unreasonable, based on an error of law, or based on an error of fact. See State v. Houston,
289 Kan. 252, 262, 213 P.3d 728 (2009). The parties agree this abuse of discretion
standard applies.

Conder claims the district court erred in applying Houston. The court in Houston
determined that the district court properly excluded evidence of prior violent acts by the
victim, stating: "Because this incident occurred 2 years before the shooting, per Walters
it was well within the trial court's discretion to determine that the evidence failed to
provide a logical connection to Houston's state of mind the day of the shooting." 289
Kan. at 262. The Houston court recognized that its decision did not prevent the defendant
from presenting his theory of defense. 298 Kan. at 262-63.

Conder claims that evidence of Tyrel's 2013 violence was not merely cumulative
so his case is more like State v. Mays, 254 Kan. 479, 866 P.2d 1037 (1994). There, the
Kansas Supreme Court found an abuse of discretion where the district court excluded
relevant, noncumulative evidence which had the effect of precluding the defendant from
presenting any evidence supporting his theory of defense. 254 Kan. at 287-88.

Such is not the case here. Conder fully, and apparently persuasively, presented his
self-defense theory to the jury even without evidence of the 2013 altercation. Conder
testified that he acted in self-defense and that the shooting was justified. He testified
15

generally that he and Tyrel had had altercations in the past, as well as to the size
differences between them. Shanda also testified that Conder and Tyrel constantly
bickered and fought. And other evidence showed that Rose repeatedly stated her belief
that Conder had acted in self-defense.

Underlying the district court's decision was its finding that Conder was the initial
aggressor. Had there been no 20-minute break in the altercation, the court's decision not
to admit evidence of the 2013 incident may have been different. But given the totality of
the facts, we find no abuse of discretion in that decision. We also agree that if the court
erred in admitting this evidence, the error was harmless because the excluded evidence
was not necessary to show Conder's state of mind.

Was it clearly erroneous for the district court not to include a lesser included offense
instruction for battery?

We next address Conder's claim that the district court erred by not including a
lesser included offense instruction for battery. When the giving of or failure to give a
lesser included offense instruction is challenged on appeal, we first determine whether we
have jurisdiction to consider the issue or the party failed to preserve the issue below.
Next, we determine the merits of the claim as to whether there was an error during the
trial. Finally, we determine whether the error was harmless or requires reversal. McLinn,
307 Kan. at 317.

Conder did not request an instruction for simple battery as a lesser included
offense of the aggravated battery charge. We may nonetheless reach this issue for the first
time on appeal, see K.S.A. 2017 Supp. 22-3414, but our review is limited to determining
whether the district court's decision was clearly erroneous. See Louis, 305 Kan. at 457. In
evaluating whether the failure to give an instruction amounts to clear error, we exercise
unlimited review of the record as a whole. State v. Betancourt, 299 Kan. 131, 135, 322
16

P.3d 353 (2014). The defendant bears the burden to establish clear error. 299 Kan. at 135.
The defendant must "'firmly convince the appellate court that the giving of the instruction
would have made a difference in the verdict.' [Citation omitted.]" State v. Cooper, 303
Kan. 764, 770, 366 P.3d 232 (2016).

Analysis

We consider whether the subject instruction was legally and factually appropriate,
employing an unlimited review of the entire record. A legally appropriate instruction
must always fairly and accurately state the applicable law. Plummer, 295 Kan. at 161. An
instruction regarding a lesser included offense is legally appropriate when the lesser
crime is an included offense of the charged crime. 295 Kan. at 161. Such is the case here
—simple battery is a lesser included offense of aggravated battery. K.S.A. 2017 Supp.
21-5413; State v. Simmons, 295 Kan. 171, 175, 283 P.3d 212 (2012). Thus, an instruction
regarding misdemeanor battery would have been legally appropriate.

We next determine whether an instruction on simple battery would have been
factually appropriate. The district court has a duty to provide the jury with a lesser
included offense instruction when there is some evidence to reasonably justify a
conviction of some lesser included offense. K.S.A 2017 Supp. 22-3414(c); State v.
Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). The evidence supporting the lesser
included offense "need not be strong or conclusive to warrant the instruction." State v.
Maestas, 298 Kan. 765, 779, 316 P.3d 724 (2014). As the Kansas Supreme Court has
recently reminded us:

"We have advised district courts to approach the determination of whether a lesser
included offense is factually supported as if the court was conducting a sufficiency
review using the following test: Is there some evidence when viewed in the light most
favorable to the defendant that would allow a rational factfinder to find the defendant
17

guilty of the lesser included offense? Plummer, 295 Kan. at 161-62; Seba, 305 Kan. at
204 (asking whether 'there is some evidence, [viewed in a light most favorable to the
defendant,] emanating from whatever source and proffered by whichever party, that
would reasonably justify a conviction of some lesser included crime'). If so, the lesser
included offense instruction should be given." McLinn, 307 Kan. at 324-25.

If, however, the evidence at trial excludes a theory of guilt of a lesser offense, failure to
instruct the jury on some lesser degree of the crime charged is not grounds for reversal.
State v. Sutherland, 248 Kan. 96, 101-02, 804 P.2d 970 (1991).

Aggravated battery is defined as recklessly causing great bodily harm or
disfigurement to another person. K.S.A. 2017 Supp. 21-5413(b)(2)(A). Simple
misdemeanor battery is knowingly or recklessly causing bodily harm to another person or
knowingly causing physical contact with another person when done in a rude, insulting,
or angry manner. K.S.A. 2017 Supp. 21-5413(a)(1)-(2). Establishing the difference
between harm and great bodily harm is usually a decision for the jury. Simmons, 295
Kan. at 177; State v. Green, 280 Kan. 758, 765, 127 P.3d 241 (2006); see State v. Brice,
276 Kan. 758, 773-74, 80 P.3d 1113 (2003) (disapproving of its prior statement that a
through and through bullet wound constitutes great bodily harm as a matter of law). "[A]
trial court could determine that a bullet wound, even one that missed bone, major arteries,
veins, and nerves, is not slight, trivial, moderate, or minor and will not support a lesser
included instruction for battery." 276 Kan. at 774. We assume, without deciding, that a
simple battery instruction was factually appropriate.

But even if a reasonable jury could have gone either way on the great bodily harm
issue, and the district court erred in not giving a lesser included offense instruction, the
failure to give the unrequested instruction is not necessarily clearly erroneous. Williams,
295 Kan. at 523-24. During this reversibility portion of the analysis, the burden to show
clear error remains on the defendant. See 295 Kan. 506, Syl. ¶ 5. Conder bears the burden
of firmly convincing us that the jury would have convicted him of simple battery rather
18

than aggravated battery had the error not occurred. See McLinn, 307 Kan. at 326; State v.
Haberlein, 296 Kan. 195, 204, 290 P.3d 640 (2012).

Conder fails to meet that burden. Conder used a firearm. Although he intended to
shoot Tyrel, he also shot Rose, causing her to suffer a gunshot wound which entered and
exited her calf. This could easily be more than just a simple battery. Thus the evidence is
such that we simply cannot be firmly convinced of which crime the jury might have
chosen. "That degree of certainty, or perhaps more accurately, that degree of uncertainty
falls short of what is required to meet the clearly erroneous standard." Williams, 295 Kan.
at 523-24 (finding no clear error in not instructing on lesser included offense). Because
we are not firmly convinced there was a real possibility the jury would have convicted
Conder of simple battery, had it been given that option, the district judge's failure to
instruct sua sponte on simple battery was not clearly erroneous.

Did the district court properly impose violent offender registration requirements?

Conder next raises an Apprendi claim, arguing that he should not be subject to
violent offender registration because the judge, rather than the jury, found he used a
deadly weapon in convicting him of aggravated assault. "Whether a defendant's
constitutional rights as described under Apprendi were violated by a district court at
sentencing raises a question of law subject to unlimited review." State v. Dickey, 301
Kan. 1018, 1036, 350 P.3d 1054 (2015); see State v. Charles, 304 Kan. 158, 176 372
P.3d 1109 (2016).

Other than a prior conviction, any fact necessary to increase the punishment for an
offense beyond its statutory maximum must be submitted to a jury or established by a
guilty plea. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000). Conder argues that the registration requirement violates this rule because the
jury did not find that he used a deadly weapon—the judge did.
19

Registration under the Kansas Offender Registration Act (KORA) is not
considered to be a criminal punishment. For a legislature's intended civil remedy to be
considered a criminal penalty subject to Apprendi's rule, the appellant must show by the
clearest proof that the scheme is "'so punitive either in purpose or effect as to negate'" its
nonpunitive or civil intentions. State v. Meredith, 306 Kan. 906, 911, 399 P.3d 859
(2017) (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164
[2003]). Conder cannot do so here.

The Kansas Supreme Court has recognized that the Legislature did not intend for
registration under KORA to be punitive. Meredith, 306 Kan. at 912; State v. Huey, 306
Kan. 1005, 1009, 399 P.3d 211 (2017), petition for cert. docketed (January 8, 2018).
Instead, the court has held that the Legislature enacted KORA's predecessor, the Kansas
Sex Offender Registration Act, for the nonpunitive purpose of public safety, and thus was
not considered a criminal punishment. State v. Myers, 260 Kan. 669, 681, 696, 923 P.2d
1024 (1996). After KORA was enacted, our courts have continued to find that KORA
registration is not punitive.

"Likewise here, no subsequent legislative history leads us to deviate from these
holdings, which remain compelling for the classes of non-sex offenders identified in the
current iteration of KORA—drug and violent offenders. Accordingly, we hold that the
legislature intended KORA registration for all classes of offenders to be civil and
nonpunitive." Meredith, 306 Kan. at 912.

Conder argues that the scheme is punitive, citing Charles. But the Kansas
Supreme Court recently held in Huey that Charles is no longer good law, stating: "[W]e
now hold Charles is not viable authority for Huey or other violent offenders as to
whether KORA is punitive." 306 Kan. at 1006. Because the Kansas Supreme Court holds
that KORA registration is not punitive and therefore does not violate Apprendi, we affirm
Conder's registration requirement.

20

Affirmed.