Is Battery a Lesser Included Offense of Domestic Battery?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Harris, 2011, 264 P.3d 1055, 46 Kan.App.2d 848

This case addresses the following issue:

Is battery a lesser included offense of domestic battery?

In December 2009, Stephanie Kemp and Harris got into an argument inside the residence they shared. During the argument, Harris stomped on Kemp’s foot with steel-toe boots. Subsequently, Kemp left the residence called law enforcement. A sheriff’s deputy arrived at the scene and spoke to Kemp about the incident. The deputy also noticed that Kemp’s left foot was red and swollen with a large bump near the pinky toe. The deputy then spoke with Harris, after which Harris was taken into custody and ultimately charged and convicted of domestic battery (second offense), a class A person misdemeanor. Id. He then subsequently appealed his conviction.

“Harris argued on appeal that his conviction should be reversed because the State failed to present any evidence showing that the victim was 18 years old or older at the time of the alleged incident—an essential element of the crime of domestic battery. The State does not directly confront Harris’ argument, but contends that his case should be remanded to the district court with directions that judgment be entered against him for misdemeanor battery and that he receive a new sentence for that crime.” Id.

Our Supreme Court has stated that “when a criminal defendant has been convicted of a greater offense, but evidence supports only a lesser included offense, the case must be remanded to resentence the defendant for the lesser included offense.” State v. Wilt, 273 Kan. 273, Syl. ¶ 3, 44 P.3d 300 (2002). Thus, the resolution of this appeal depends on whether misdemeanor battery is a lesser included offense of domestic battery. This raises a question of law subject to unlimited review. Id.

Under K.S.A. 21–3107(2), the defendant may be convicted of either the crime charged or a lesser included crime, but not both. Id. A lesser included crime is a lesser degree of the same crime or a crime where all of the elements of the lesser crime are identical to some of the elements of the crime charged. K.S.A. 21–3107(2)(a) and (b). Id. at 1057

Domestic battery is defined as follows: “(1) Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or (2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.” K.S.A. 2009 Supp. 21–3412a(a). “Family or household member” is defined as persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time.

In comparison, battery is defined as: “(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.” K.S.A. 21–3412(a). Id.

In State v. Presha, No. 92,066, 2005 WL 578490 (Kan.App.) (unpublished opinion), rev. denied 279 Kan. 1009 (2005), the court concluded that battery was a lesser included offense of domestic battery because all of the elements of battery were identical to some of the elements of domestic battery. Id. “Accordingly, the court concluded that the defendant’s conviction for domestic battery should be reduced to battery and that he should receive a new sentence for that crime.” Id.

“In Perez–Rivera the court reversed the defendant’s conviction for domestic battery after it determined that the State had failed to establish at trial that the victim was 18 years old or older when the altercation occurred.” Id. This Court found the panel’s decision in Presha persuasive and concluded that battery is a lesser included offense of domestic battery. Id.

For the reasons discussed above, the Court reversed Harris’ conviction for domestic battery, setting aside the sentence imposed and the fine that was levied. However, they remanded his case to the district court with directions that Harris be convicted and sentenced for the crime of battery under K.S.A. 21–3412, a class B person misdemeanor. Id. at 1056