                                              No. 114,556

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                           ROBERT E. CARTER,
                                              Appellant.


                                   SYLLABUS BY THE COURT

1.
        The question of whether domestic battery as provided in K.S.A. 2015 Supp. 21-
5414(a)(1) is a lesser included offense of aggravated battery as provided in K.S.A. 2015
Supp. 21-5413(b)(1)(A) is a purely legal question over which this court has unlimited
review.


2.
        Domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is not a lesser
included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-
5413(b)(1)(A).


        Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed April 28, 2017.
Affirmed.


        Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.


        Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.




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Before BUSER, P.J., ATCHESON and POWELL, JJ.


       BUSER, J.: Robert E. Carter was convicted of aggravated battery in violation of
K.S.A. 2015 Supp. 21-5413(b)(1)(A) following a jury trial in the Sedgwick County
District Court. On appeal, Carter claims clear error because the trial court did not instruct
the jury on domestic battery as a lesser included offense of aggravated battery. Upon our
review, we find as a matter of law that domestic battery as provided in K.S.A. 2015 Supp.
21-5414(a)(1) is not a lesser included offense of aggravated battery as provided in K.S.A.
2015 Supp. 21-5413(b)(1)(A). Accordingly, we find no error in the trial court's failure to
provide the jury with a domestic battery instruction.


                        FACTUAL AND PROCEDURAL BACKGROUND

       On June 19, 2014, Carter and his live-in girlfriend, Myrae Thomas, sat outside
their home drinking beer with Carter's brother, Willie Turner, and his friend, Tiffany
Cargile. During the evening, a man stopped by the house and conversed with Carter about
his recently deceased grandmother. As a result of the conversation, Carter became
agitated and Turner, Cargile, and Thomas decided to leave the residence to get some food
and afford Carter some time alone at the home in order to calm down.


       The group returned about 40 minutes later to find the home completely dark with
Carter sitting inside. When Thomas turned on the lights and asked Carter why the lights
were turned off, Carter became enraged. He yelled profanities and accused Thomas and
Turner of having an affair. Despite Thomas' denial, Carter leapt out of the chair and
struck Thomas in the left eye. This blow caused Thomas to fall to the floor, scream for
help, and then lose consciousness. Upon awakening, Thomas was covered in blood and
she could not see out of her left eye.




                                              2
       A short time later, Patricia Kearney, a friend of Thomas, arrived at the residence to
find Thomas bleeding profusely with a "bulging" left eye. Carter and Kearney exchanged
profanities, and Carter admitted that he had struck Thomas. Kearney drove Thomas to the
emergency room at St. Francis Hospital where she was stabilized and then transported to
Wesley Hospital for emergency surgery to repair her eye.


       According to Thomas, as a result of Carter's blow, her forehead above the left eye
sustained a gash which required 32 stitches to repair but still left a scar. Regarding her
left eye, Thomas testified "[t]here's no back to the eye or the top. And the eye has shrunk
to nothing. I can't see out of it . . . . I haven't been able to drive or work or do anything."


       Carter was charged with aggravated battery for knowingly causing great bodily
harm or disfigurement upon Thomas, a severity level 4 felony, in violation of K.S.A.
2015 Supp. 21-5413(b)(1)(A). The jury trial began on April 6, 2015, with Carter
appearing pro se.


       Carter testified on his own behalf. As summarized in the appellant's brief:


               "Mr. Carter's theory of defense was that Thomas had self-inflicted her injuries
       while under the influence of K2 [synthetic marijuana]. . . . He testified she had a bad
       reaction and had cut herself with her own pocketknife. . . . He testified that he tried to
       calm her down and help her. . . . He denied punching Thomas."


       At the conclusion of the evidence, in addition to the charged crime of aggravated
battery, the trial court instructed the jury on the lesser degree of aggravated battery, to
wit: causing bodily harm in a manner whereby great bodily harm or disfigurement can be
inflicted, in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(B), and misdemeanor battery,
in violation of K.S.A. 2015 Supp. 21-5413(a)(1). For each of these lesser included



                                                     3
instructions, the trial court also asked the jury to determine whether the crime was an act
of domestic violence. See K.S.A. 2015 Supp. 22-4616.


       The jury found Carter guilty as charged of aggravated battery for causing great
bodily harm or disfigurement in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A). The
jury also found this crime was an act of domestic violence. Carter was sentenced to 154
months' imprisonment, followed by 36 months of postrelease supervision. He filed
several posttrial motions, including one asserting the trial court had erred by not
instructing the jury on the lesser included offense of domestic battery. The trial court
denied the motion. Carter appeals.


   IS DOMESTIC BATTERY A LESSER INCLUDED OFFENSE OF AGGRAVATED BATTERY?

       Carter contends that domestic battery as provided in K.S.A. 2015 Supp. 21-
5414(a)(1) is a lesser included offense of aggravated battery as provided in K.S.A. 2015
Supp. 21-5413(b)(1)(A). Although he did not request a domestic battery instruction at
trial, Carter asserts it was both legally and factually appropriate for the trial court to
instruct the jury regarding this lesser offense. Moreover, Carter argues that the trial
court's failure to properly instruct the jury in this regard was clear error because the jury
would have reached a different verdict if the trial court had instructed the jury on
domestic battery.


       In response, the State maintains that "[w]here the record discloses that the
instruction, requested for the first time on appeal, was neither legally nor factually
appropriate, and there is not a reasonable likelihood that the jury would have returned a
conviction for that offense, defendant is not entitled to the relief that he seeks."


       We begin our analysis with a brief summary of our standard of review in cases
where the appellant asserts instructional error. The question of whether domestic battery

                                               4
as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is a lesser included offense of
aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A) is a purely legal
question over which this court has unlimited review. See State v. McKissack, 283 Kan.
721, 725, 156 P.3d 1249 (2007).


       Kansas courts follow a multistep analytical progression to determine whether a
trial court made a jury instruction error, and, if so, what is the appropriate remedy:


               "When analyzing jury instruction issues, we (1) determine whether the issue can
       be reviewed, (2) determine whether any error occurred, and (3) finally determine whether
       any error requires reversal. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195
       (2012); see also State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012) (explaining
       that 'reviewability' must be considered from both jurisdiction and preservation
       standpoints).
               "The first and third steps are interrelated in that whether a party has preserved an
       issue for review will have an impact on the standard by which we determine whether an
       error is reversible. See Williams, 295 Kan. at 515-16. If a party preserves a jury
       instruction issue by raising an appropriate argument before the trial court, there are no
       reviewability problems: We will determine whether there was an error and, if so, ask
       whether it was 'harmless.' Plummer, 295 Kan. at 162; see Williams, 295 Kan. at 518; see
       also K.S.A. 60-261.
               "On the other hand, if, as in this case, a party fails to preserve an objection to the
       jury instructions by not raising the argument before the trial court, we will still review
       whether the instruction was legally and factually appropriate but will reverse only for
       'clear error.' Williams, 295 Kan. at 510. An instruction is clearly erroneous when '"the
       reviewing court is firmly convinced that the jury would have reached a different verdict
       had the instruction error not occurred."' State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281
       (2013) (quoting Williams, 295 Kan. at 516); see Williams, 295 Kan. at 516 (explaining
       that the burden to show clear error remains on the party seeking reversal)." State v.
       Barber, 302 Kan. 367, 376-77, 353 P.3d 1108 (2015).




                                                     5
       Of note, in the second step of the analysis where we determine whether any error
occurred, we consider both the legal appropriateness of the requested instruction and the
factual appropriateness of the instruction. State v. Armstrong, 299 Kan. 405, 433, 324
P.3d 1052 (2014). On appeal, all steps in this analysis are reviewed independently
without any deference to the rulings of the district court. See State v. Charles, 304 Kan.
158, 165, 372 P.3d 1109 (2016).


       Regarding the first step of the analysis, Carter candidly concedes that he did not
ask the trial court to instruct the jury on a lesser included offense of domestic battery. He
also acknowledges that, as a consequence of not making an objection at trial, he must
convince our court that the jury would have reached a different verdict but for the trial
court's failure to give the instruction. With those concessions, we next consider whether
the trial court's failure to give the jury a lesser included offense instruction on domestic
battery was legally appropriate.


       The Kansas statute pertaining to lesser included crimes provides in part:


               "(b) Upon prosecution for a crime, the defendant may be convicted of either the
       crime charged or a lesser included crime, but not both. A lesser included crime is:
               (1) A lesser degree of the same crime, except that there are no lesser degrees of
       murder in the first degree under subsection (a)(2) of K.S.A. 2015 Supp. 21-5402, and
       amendmnts thereto;
               (2) a crime where all elements of the lesser crime are identical to some of the
       elements of the crime charged;
               (3) an attempt to commit the crime charged; or
               (4) an attempt to commit a crime defined under paragraph (1) or (2)." (Emphases
       added.) K.S.A. 2015 Supp. 21-5109.


       The strict elements test set forth in K.S.A. 2015 Supp. 21-5109(b) means that,
when considering whether one crime is a lesser included offense of another crime, a

                                                   6
court's inquiry is "limit[ed] . . . to the strict elements of the crimes." (Emphasis added.)
McKissack, 283 Kan. at 728.


       Kansas criminal procedure advises district courts: "In cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime as
provided in subsection (b) of K.S.A. 2015 Supp. 21-5109, and amendments thereto, the
judge shall instruct the jury as to the crime charged and any such lesser included crime."
K.S.A. 2015 Supp. 22-3414(3).


       In this case, the State charged Carter with aggravated battery, defined as
"[k]nowingly causing great bodily harm to another person or great disfigurement of
another person." K.S.A. 2015 Supp. 21-5413(b)(1)(A). In accordance with this statute,
the jury instruction for this charge read:

               "In count 1, the defendant is charged with Aggravated Battery causing great
       bodily harm or disfigurement. The defendant pleads not guilty.
               "To establish this charge, each of the following claims must be proved:
               "1. The defendant knowingly caused great bodily harm or disfigurement to
                   Myrae Thomas and,
               "2. This act occurred on or about the 20th day of June, 2014, in Sedgwick
                   County, Kansas."


       The district court also instructed the jury on a lesser degree of the same crime of
aggravated battery as found in K.S.A. 2015 Supp. 21-5413(b)(1)(B). This jury instruction
provided:


               "If you do not agree that the defendant is guilty of Aggravated Battery causing
       great bodily harm or disfigurement, you should then consider the first lesser included
       offense of Aggravated Battery causing bodily harm in a manner whereby great bodily
       harm or disfigurement can be inflicted.



                                                   7
               "To establish this charge, each of the following claims must be proved:
               "1. The defendant knowingly caused bodily harm to Myrae Thomas in any
                    manner whereby great bodily harm or disfigurement can be inflicted
                       and
               "2. This act occurred on or about the 20th day of June, 2014, in Sedgwick
                    County, Kansas."


       Finally, the district court instructed the jury on the lesser included offense of
simple or misdemeanor battery, which in this case meant "[k]nowingly or recklessly
causing bodily harm to another person." K.S.A. 2015 Supp. 21-5413(a)(1). This jury
instruction read:


               "If you do not agree that the defendant is guilty of Aggravated Battery causing
       great bodily harm or disfigurement or the first lesser included offense of Aggravated
       Battery causing bodily harm in a manner whereby great bodily harm or disfigurement can
       be inflicted, you should then consider the second lesser included offense of battery.
               "To establish this charge, each of the following claims must be proved:
               "1. The defendant knowingly caused bodily harm to Myrae Thomas,
               "2. This act occurred on or about the 20th day of June, 2014, in Sedgwick
                    County, Kansas."


       On appeal, Carter does not object to the district court providing these two lesser
included instructions to the jury. Rather, he claims error because the district court did not
provide the jury with the option to consider what he asserts was a third lesser included
instruction for the crime of domestic battery.


       K.S.A. 2015 Supp. 21-5414(a)(1) codifies the crime of domestic battery and
defines it as "[k]nowingly or recklessly causing bodily harm by a family or household
member against a family or household member." The Pattern Instructions for Kansas
(PIK) Criminal 4th sets forth the elements of domestic battery:



                                                    8
              "To establish this charge, each of the following claims must be proved:
              "1. The defendant (knowingly) (recklessly) caused bodily harm to [the victim].
                                                      OR
              "1. The defendant knowingly caused physical contact with [the victim] in a rude,
                  insulting or angry manner.
              "2. The defendant and [the victim] were family or household members.
              "3. This act occurred on or about the ______ day of ____________, in
                  _________________ County, Kansas." (Emphasis added.) PIK Crim. 4th
              54.360 (2014 Supp.).


       The question presented in this appeal is whether domestic battery as provided in
K.S.A. 2015 Supp. 21-5414(a)(1) is a lesser included offense of aggravated battery as
provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A). If Carter is correct and domestic
battery is a lesser included offense, then the district court erred in not submitting this
instruction to the jury for its consideration.


       In support of his contention, Carter cites two unpublished Kansas Court of
Appeals cases: State v. Howard, No. 102,738, 2011 WL 867584 (Kan. App. 2011)
(unpublished opinion), and State v. Tisdale, No. 100,471, 2009 WL 2371019 (Kan. App.
2009) (unpublished opinion). In Howard, the defendant was charged with the aggravated
battery of his girlfriend on Valentine's Day. The altercation consisted of Howard
punching his girlfriend several times in the face, strangling her, and breaking a chair over
her leg. At trial, Howard requested an instruction on the lesser included offense of battery
but the trial court declined. The jury convicted Howard as charged of aggravated battery.


       On appeal, Howard claimed the trial court erred in declining to instruct the jury on
the lesser included offense of battery and, for the first time, complained that the trial
court also committed clear error by not instructing the jury on the lesser included offense
of domestic battery. A panel of our court reversed Howard's conviction, finding that,



                                                  9
reviewing the evidence in the light most favorable to the defendant, the jury could have
convicted Howard of simple battery. Howard, 2011 WL 867584, *2-3.


       Without any discussion of whether domestic battery was a legally appropriate
lesser included offense of aggravated battery, the panel then reviewed the trial evidence
and found it was sufficient to support the offense of domestic battery because there was
testimony that Howard and his girlfriend lived together at the time of the crime. 2011 WL
867584, at *3. The panel concluded, "[T]he trial court erred in failing to instruct the jury
on the lesser included offenses of simple battery and domestic battery." 2011 WL
867584, at *3.


       We disagree with the panel's conclusion in Howard and do not consider the
opinion as precedent in this appeal. As our Supreme Court stated in Graham v. Herring,
297 Kan. 847, 861, 305 P.3d 585 (2013):


       "[I]n State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010), we held that a Court of
       Appeals panel had the right to disagree with a previous panel of the same court.
       Moreover, pursuant to our Supreme Court Rule 7.04(g)(2)(A) (2012 Kan. Ct. R. Annot.
       58), an unpublished memorandum opinion is not binding precedent, except as may occur
       through the doctrines of law of the case, res judicata, or collateral estoppel."


Of note, none of these doctrines are applicable in this appeal.


       As we read Howard, the question before the panel was whether the district court
erred in finding it was factually inappropriate to submit battery and domestic battery
lesser included offense instructions to the jury. The question of the legality of providing
such instructions as lesser included offenses was not raised on appeal. As a result, the
panel did not analyze the legal appropriateness of providing the jury with domestic
battery as a lesser included instruction. Because we disagree with the panel's conclusion


                                                    10
in its unpublished opinion in Howard, we do not consider that opinion as precedent to
guide us in this appeal.


       Next, Carter turns to Tisdale to support his argument. But Tisdale was an appeal of
a denial of a motion to correct illegal sentence, a matter unrelated to whether domestic
battery is a lesser included offense of aggravated battery. Moreover, in Tisdale, the panel
specifically noted that domestic battery is noteworthy for its separate element that
requires proof that the defendant and victim were family or household members. 2009
WL 2371019, at *2; see PIK Crim. 4th 54.360 (2014 Supp.).


       The State, on the other hand, cites to a more recent unpublished Court of Appeals
opinion, State v. Chavez, No. 108,955, 2014 WL 1795760 (Kan. App. 2014) (unpublished
opinion), rev. denied 301 Kan. 1048 (2015). In Chavez, a panel of our court considered
the question of whether convictions for both aggravated battery and domestic battery
were multiplicitous. 2014 WL 1795760, at *3. First, the panel analyzed the purposes of
aggravated battery and simple battery—both of which "attempt to regulate conduct
among members of the general public by criminalizing and punishing specified forms of
inappropriate physical contact"—and distinguished them from domestic battery—which
seeks to "deter one adult member of a household from chronically abusing another adult
in the same household." 2014 WL 1795760, at *5. Next, the panel examined the
respective legal histories of aggravated battery and domestic battery, finding that the two
offenses did not include comparable provisions or "share especially strong common-law
antecedents." 2014 WL 1795760, at *5. Accordingly, the Chavez panel found that
domestic battery is not a lesser degree of aggravated battery and ruled that the two
offenses were not multiplicitous. 2014 WL 1795760, at *4, 6.


       Finally, State v. Monahan, No. 95,778, 2006 WL 3231404 (Kan. App. 2006)
(unpublished opinion), provides additional support that domestic battery is not a lesser
included offense of aggravated battery. As with Chavez, the defendant in Monahan

                                            11
argued that his convictions for both aggravated battery and domestic battery were
multiplicitous. The panel compared the statutes for both domestic battery and aggravated
battery and found that "[t]he two offenses do not share identical elements." 2006 WL
3231404, at *5. Of particular relevance to K.S.A. 2015 Supp. 21-5109(b)(2) in this case,
the panel noted that the defendant's "domestic battery conviction required proof of bodily
harm to a household member, which is not an element of his aggravated battery
conviction." 2006 WL 3231404, at *5.


       Applying K.S.A. 2015 Supp. 21-5109(b), the statute which controls the
determination of what crimes are lesser included crimes, and comparing the separate
elements of the crimes of domestic battery and aggravated battery, yields the evident
conclusion that domestic battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is not a
lesser included offense of aggravated battery as provided in K.S.A. 2015 Supp. 21-
5413(b)(1)(A).


       First, applying subsection (1) of K.S.A. 2015 Supp. 21-5109(b), domestic battery
is not "[a] lesser degree of the same crime," in this case, aggravated battery. Aggravated
battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A) is a severity level 4, person
felony. K.S.A. 2015 Supp. 21-5413(g)(2)(A). There are, however, six lesser degrees of
aggravated battery ranging in severity levels of 5, 7, and 8, person felonies. See K.S.A.
2015 Supp. 21-5413(g)(2)(B)-(D). Domestic battery, on the other hand, is not listed as
one of the lesser degrees of aggravated battery, but it is a separate crime statutorily
defined in K.S.A. 2015 Supp. 21-5414(a).


       Second, applying subsection (2) of K.S.A. 2015 Supp. 21-5109(b), domestic
battery is not "a crime where all elements of the lesser crime are identical to some of the
elements of the crime charged." See McKissack, 283 Kan. at 727 ("a lesser included
offense is one where all elements of the lesser crime are identical to some of the elements
of the crime charged"). As noted in both Chavez and Monahan, domestic battery requires

                                             12
proof of the element that the physical contact or bodily harm was caused by "a family or
household member against a family or household member." K.S.A. 2015 Supp. 21-
5414(a)(1); see Chavez, 2014 WL 1795760, at *4; Monahan, 2006 WL 3231404, at *5.
That element is unique to the crime of domestic battery and is not found in the crime of
aggravated battery. See K.S.A. 2015 Supp. 21-5413(b)(1)(A).


       In summary, applying K.S.A. 2015 Supp. 21-5109(b), we hold that domestic
battery as provided in K.S.A. 2015 Supp. 21-5414(a)(1) is not a lesser included offense of
aggravated battery as provided in K.S.A. 2015 Supp. 21-5413(b)(1)(A). Accordingly, the
trial court did not err in failing to instruct the jury on the crime of domestic battery as a
lesser included offense.


       Given our holding that a domestic battery instruction was not legally appropriate,
we decline to address Carter's additional contention that providing the jury with such an
instruction was also factually appropriate in this case.


                      DID THE DISTRICT COURT ERR IN SENTENCING?

       Carter also claims a sentencing error. He contends the district court violated his
Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Carter asserts the error occurred
when the district court enhanced his sentence based on his criminal history without first
requiring the State to include his prior convictions in the complaint and to prove those
convictions to a jury beyond a reasonable doubt.


       Many years ago, our Supreme Court rejected a similar argument in State v. Ivory,
273 Kan. 44, 46-48, 41 P.3d 781 (2002). Since then, the Supreme Court has reaffirmed
Ivory on multiple occasions. See State v. Williams, 299 Kan. 911, 941, 329 P.3d 400



                                              13
(2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Fewell, 286
Kan. 370, 394-96, 184 P.3d 903 (2008).


       The Kansas Court of Appeals is required to follow Supreme Court precedent
absent some indication that our Supreme Court is departing from its previous position.
State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012
(2015). As the above citations make clear, there is every indication that our Supreme
Court is adhering to its precedent established in Ivory. We hold the district court did not
err when it considered Carter's criminal history in determining his lawful sentence.


       Affirmed.




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