Source or Prior Law:

21-436.

Law Review and Bar Journal References:

"Reform in Kansas Domestic Violence Legislation," David J. Gottlieb and L. Eric Johnson, 31 K.L.R. 527, 536, 559 (1983).

"Survey of Kansas Law: Criminal Law," Robert A. Wason, 32 K.L.R. 395, 401 (1984).

"Corporate Criminal Liability for Injuries and Death," Patrick Hamilton, 40 K.L.R. 1091, 1105 (1992).

"The Kansas Stalking Law: A 'Credible Threat' to Victims. A Critique of the Kansas Stalking Law and Proposed Legislation," Callie Anderson Marks, 36 W.L.J. 468 (1997).

"Criminalizing the Intentional or Reckless Exposure to HIV: A Wake-Up Call to Kansas," Amy M. Decker, 46 K.L.R. 305 (1998).

"2001 Legislative Wrap Up," Paul T. Davis, 70 J.K.B.A. No. 7, 14 (2001).

Attorney General's Opinions:

Assault; battery; prosecution for intentional exposure to HIV. 92-29.

Restraining orders violations; criminal trespass; probable cause for arrest. 94-74.

Third or subsequent domestic battery conviction; imprisonment is in state penal institution; determinate sentence; good time credits. 96-59.

Domestic battery; age requirement. 1998-34.

Disqualification for admission to Kansas Law Enforcement Center. 1999-34.

CASE ANNOTATIONS

1. Failure to instruct on battery as lesser included offense error; aggravated battery conviction reversed. State v. Warbritton, 211 Kan. 506, 507, 508, 506 P.2d 1152.

2. Where defendant's evidence showed lack of intent to injure required by aggravated battery, instruction hereunder should have been given. State v. Seely, 212 Kan. 195, 203, 510 P.2d 115.

3. Conviction of assault and battery and rape; alleged trial errors reviewed and conviction upheld. State v. James, 216 Kan. 235, 531 P.2d 70.

4. Prosecution for aggravated battery; instruction hereunder not clearly required by evidence. State v. Arney, 218 Kan. 369, 374, 544 P.2d 334.

5. Alleged errors reviewed and conviction hereunder upheld. State v. Adams, 218 Kan. 495, 497, 545 P.2d 1134.

6. Referred to in determining that under facts robbery, as defined in K.S.A. 21-3426, was not committed. State v. Aldershof, 220 Kan. 798, 804, 556 P.2d 371.

7. Mentioned; intent requirements of K.S.A. 1976 Supp. 21-3431 declared unconstitutional; impermissibly vague. State v. Kirby, 221 Kan. 1, 5, 563 P.2d 408.

8. Court did not err in refusing to instruct hereunder as lesser included offenses of aggravated battery. State v. Wright, 221 Kan. 132, 136, 137, 557 P.2d 1267.

9. First degree murder prosecution; not error to instruct hereunder under facts. State v. Franklin, 221 Kan. 739, 744, 561 P.2d 860.

10. Conviction hereunder upheld; amendment to complaint and use of disjunctive in complaints discussed. State v. Woods, 222 Kan. 179, 563 P.2d 1061.

11. Conviction of attempted rape reversed; failure to instruct on lesser offense of battery. State v. Arnold, 1 Kan. App. 2d 642, 645, 573 P.2d 1087. Reversed: 223 Kan. 715, 716, 717, 576 P.2d 651.

12. Applied; conviction of aggravated battery affirmed; instructions upheld. State v. Bailey, 223 Kan. 178, 183, 573 P.2d 590.

13. Instructions using M'Naghten rule proper; conviction hereunder affirmed. State v. Smith, 223 Kan. 203, 574 P.2d 548.

14. No instruction required on simple battery as a lesser included offense of K.S.A. 21-3515. State v. Trujillo, 225 Kan. 320, 322, 590 P.2d 1027.

15. Conviction of aggravated battery affirmed; not error to refuse instruction hereunder; intent. State v. Davis, 2 Kan. App. 2d 698, 701, 703, 704, 587 P.2d 3.

16. Under evidence, no error in refusal to instruct on battery as lesser included offense of aggravated battery. State v. Lomax & Williams, 227 Kan. 651, 653, 608 P.2d 959.

17. Inquiring whether defendant testified at preliminary hearing harmless error. State v. Blevins, 7 Kan. App. 2d 378, 642 P.2d 136 (1982).

18. Battery or aggravated battery not lesser included crimes of robbery or aggravated robbery so as to require an instruction thereon. State v. Warwick, 232 Kan. 232, 235, 654 P.2d 403 (1982).

19. Cited in holding instruction on aiding and abetting including other than intended crime proper under evidence. State v. Hobson, 234 Kan. 133, 157, 671 P.2d 1365 (1983).

20. "Unlawful" is legal conclusion defendant had no lawful authority to touch officer even if arrest unlawful. State v. Franz, 9 Kan. App. 2d 319, 320, 676 P.2d 157 (1984).

21. Cited in holding that when attorney general prosecutes case at county attorney's request, attorney general can only be removed for cause. State ex rel. Stephan v. Reynolds, 234 Kan. 574, 673 P.2d 1188 (1984).

22. No error in refusing instruction on simple battery where uncontroverted evidence indicated knife (deadly weapon) used. State v. Hanks, 236 Kan. 524, 525, 536, 537, 694 P.2d 407 (1985).

23. Jail time credit (K.S.A. 21-4614) while in community corrections facility on probation, authority to commit discussed. State v. Fowler, 238 Kan. 326, 330, 710 P.2d 1268 (1985).

24. Cited; use of doberman pinschers may constitute aggravated battery (K.S.A. 21-3414(c)). State v. Bowers, 239 Kan. 417, 421, 425, 721 P.2d 268 (1986).

25. Prior law under K.S.A. 21-3504 and related statutes examined. State v. Ramos, 240 Kan. 485, 731 P.2d 837 (1987).

26. Cited; "deadly weapon" construed, duty to instruct on lesser included offense (K.S.A. 21-3107) examined. State v. Adams, 12 Kan. App. 2d 191, 193, 737 P.2d 876 (1987).

27. Cited; aggravated assault (K.S.A. 21-3410) as not a lesser included offense (K.S.A. 21-3107) of attempted (K.S.A. 21-3301) second degree murder (K.S.A. 21-3402) noted. State v. Daniels, 12 Kan. App. 2d 479, 482, 753 P.2d 300 (1987).

28. Cited; doctrine of merger examined; convictions of felony murder (K.S.A. 21-3401) and child abuse (K.S.A. 21-3609) reversed. State v. Lucas, 243 Kan. 462, 470, 759 P.2d 90 (1988).

29. Court's affirmative duty to instruct on lesser included offenses when supported by evidence examined. State v. Colbert, 244 Kan. 422, 427, 769 P.2d 1168 (1989).

30. When instruction that battery is lesser included offense of aggravated battery (K.S.A. 21-3414) unnecessary examined. State v. Young, 14 Kan. App. 2d 21, 27, 784 P.2d 366 (1989).

31. Replacement of juror with alternate juror not yet discharged on reasonable cause permissible; no grounds for mistrial shown. State v. Stallings, 246 Kan. 642, 646, 792 P.2d 1013 (1990).

32. Failure to instruct on lesser included offense examined where gun is used as a club in aggravated battery charge. State v. Wagner, 248 Kan. 240, 807 P.2d 139 (1991).

33. Conviction hereunder not multiplicitous with kidnapping and rape convictions. State v. Richmond, 250 Kan. 375, 376, 827 P.2d 743 (1992).

34. Battery as a lesser included offense of child abuse examined. State v. Allison, 16 Kan. App. 2d 321, 322, 323, 823 P.2d 213 (1992).

35. Battery is a lesser included offense to aggravated robbery based on proof of facts alleged in complaint. State v. Hill, 16 Kan. App. 2d 432, 434, 825 P.2d 1141 (1992).

36. Instruction on aggravated battery as raising implication that a more serious charge involved examined. State v. DeHerrera, 251 Kan. 143, 148, 834 P.2d 918 (1992).

37. Jury selection by voter registration lists, evidence of gang membership examined. State v. Bailey, 251 Kan. 156, 158, 834 P.2d 342 (1992).

38. Factual circumstances examined in aggravated battery case where instruction on lesser included offense of battery not required. State v. Deggs, 251 Kan. 342, 834 P.2d 376 (1992).

39. Jury selection, confession, gang membership, rape shield statute, photographic exhibits, trial misconduct, instructions, peremptory challenge, hard 40 statute, examined. State v. Walker, 252 Kan. 279, 281, 845 P.2d 1 (1993).

40. Mentioned in reversing conviction for aggravated robbery; trial court erred in not giving instruction on battery as lesser included offense. State v. Clardy, 252 Kan. 541, 544, 847 P.2d 694 (1993).

41. Test determining whether excessive force used during arrest is what reasonable officer would do in heat of moment. Swanson v. Fields, 814 F. Supp. 1007, 1008, 1009, 1016 (1993).

42. Whether court abused discretion by refusing to apportion restitution between defendants and other attackers examined. State v. Wells, 18 Kan. App. 2d 735, 861 P.2d 828 (1993).

43. Whether trial court should have instructed on lesser offense examined. State v. Manzanares, 19 Kan. App. 2d 214, 218, 220, 866 P.2d 1083 (1994).

44. Issue regarding whether officer used excessive force when making arrest of defendant precluded summary judgment. Williams v. Weber, 905 F. Supp. 1502, 1510 (1995).

45. At resentencing, state may present proper authenticating documents of defendant's criminal history. State v. Strickland, 23 Kan. App. 2d 615, 933 P.2d 782 (1997).

46. Battery hereunder is a statute enacted for protection of human life or safety within scope of K.S.A. 21-3404(b). State v. Ullard, 24 Kan. App. 2d 249, 251, 256, 257, 943 P.2d 947 (1997).

47. Whether vehicle used as deadly weapon considered; simple battery as lesser included offense of aggravated battery instruction required. State v. Guebara, 24 Kan. App. 2d 260, 263, 264, 944 P.2d 164 (1997).

48. Convictions for operating vehicle under the influence of alcohol and aggravated battery were not multiplicitous. State v. Lafoe, 24 Kan. App. 2d 662, 663, 953 P.2d 681 (1998).

49. Kansas criminal code does not affect any civil right or remedy in civil action based upon conduct code punishes. Smith v. Welch, 265 Kan. 868, 876, 967 P.2d 727 (1998).

50. Noncontemperaneous violence by defendant did not convert theft into robbery but could be basis for battery charge. State v. Bateson, 266 Kan. 238, 242, 247, 970 P.2d 1000 (1998).

51. Trial court refusal to give jury instruction on disorderly conduct as a lesser included offense of criminal threat or battery upheld. State v. Butler, 25 Kan. App. 2d 35, 39, 956 P.2d 733 (1998).

52. Complaint alleging domestic battery contained sufficient facts to charge defendant; domestic battery defined. State v. Kluge, 25 Kan. App. 2d 461, 462, 465, 966 P.2d 683 (1998).

53. Defendant guilty of felony battery based on previous convictions for battery. State v. Johnson, 27 Kan. App. 2d 813, 7 P.3d 1267 (2000).

54. In prosecution of charge of battery against law enforcement officer, prosecutor must prove only general intent to cause physical contact with another person. State v. Campbell, 30 Kan. App. 2d 70, 39 P.3d 97 (2002).

55. Battery not lesser included offense of aggravated indecent liberties with a child. State v. Banks, 273 Kan. 738, 46 P.3d 546 (2002).

56. Cited; court discusses rule for lesser included offense instructions in felony murder cases. State v. Jones, 287 Kan. 547, 556, 197 P.3d 815 (2008).

57. Cited; failure to give jury instruction on lesser included offense upheld; injury was not slight or minor. State v. Smith, 39 Kan. App. 2d 64, 69, 176 P.3d 997 (2008).

58. Cited in discussion of general intent crimes; court's response to jury question misstated intent element. State v. Hawkins, 40 Kan. App. 2d 10, 15, 188 P.3d 965 (2008).

59. Conviction hereunder upheld; no error in failure to give a requested lesser offense instruction. State v. Hoffman, 288 Kan. 100, 200 P.3d 1254 (2009).

60. No constitutional violation for failure to instruct on lesser included offense of battery. State v. Hunter, 41 Kan. App. 2d 507, 203 P.3d 23 (2009).

61. Conviction reversed based on violation of order in limine, post-Miranda silence and improper jury instruction. State v. Pruitt, 42 Kan. App. 2d 166, 211 P.3d 166 (2009).

62. Conviction reversed due to incorrect jury instruction regarding terms "great bodily harm" and "bodily harm." State v. Delacruz, 43 Kan. App. 2d 173, 223 P.3d 810 (2010).

63. Misdemeanor battery is a lesser included offense of domestic battery. State v. Harris, 46 Kan. App. 2d 848, 264 P.3d 1055 (2011).

64. The district court erred in refusing to give the requested lesser included offense instruction on simple battery. State v. Simmons, 295 Kan. 171, 283 P.3d 212 (2012).

65. Battery under K.S.A. 21-3412(a)(1) is not a lesser included offense of aggravated robbery under K.S.A. 21-3427. State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014).

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