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State v. Dixon6/3/2005
murder when the evidence of the underlying felony is weak or inconclusive. The reason for the rule is that the killer's malignant purpose is established by proof of the collateral felony." State v. Sandifer, 270 Kan. 591, Syl. 3, 17 P.3d 921 (2001).
On appeal, Dixon argues that the evidence of the underlying felony, burglary, was weak and inconclusive. The jury was instructed that it could consider only the second of the two burglary counts, Count 11, as a predicate offense for the felony-murder charges. In closing argument, the prosecutor told the jurors that only the second burglary count could be a predicate offense because only during the second burglary was something done to start the chain of events that ended with the deaths of Dana and Gabriel Hudson. Dixon concedes that there was conclusive evidence that he entered Alicia's apartment the second time, but he disputes that there was conclusive evidence that he entered with a felonious intent. The jury was instructed that it could find that he entered Alicia's apartment with the intent to commit theft, aggravated arson, or criminal damage to property.
Griffin, who accompanied Dixon the second time he went into Alicia's apartment, testified that Dixon threw a candle at a television, kicked a bookshelf, knocked the stove onto its side, tore a curtain down off a front room window, and tore up the kitchen going through the cabinets. Viewed in the light most favorable to defendant, as required, State v. Gholston, 272 Kan. 601, 615, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002), Griffin's testimony provided substantial and conclusive proof of Dixon's criminal damage to property. And it could reasonably be inferred from the evidence that Dixon entered the apartment with the felonious intent to criminally damage property. No lesser offense instructions were required.
3. SHOULD THE TRIAL COURT HAVE INSTRUCTED ON LESSER DEGREES OF AGGRAVATED BATTERY?
Dixon was charged with five counts of aggravated battery. The jury was instructed for Counts 4, 5, and 9 that the State had to prove that Dixon recklessly caused great bodily harm to Tena Wright, Nathan Medlen, and James Woodling respectively. Counts 4, 5, and 9 are severity level 5 felonies. See K.S.A. 21-3414(a)(2)(A) and (b). For Counts 6 and 7, the jury was instructed that the State had to prove that Dixon recklessly caused bodily harm to Stacey Depriest and Rosalind Harris respectively in a manner whereby great bodily harm, disfigurement or death could be inflicted. Counts 6 and 7 are severity level 8 felonies. See K.S.A. 21-3414(a)(2)(B) and (b).
The defendant requested lesser included offense instructions on Counts 4, 5, and 9. Specifically, defense counsel requested that the jury be instructed on aggravated battery severity level 8 or simple battery. The trial court declined to so instruct on Counts 4, 5, and 9 on the ground that the jury could not reasonably conclude that the injuries of Wright, Medlen, and Woodling constituted anything other than great bodily harm.
A defendant has a right to an instruction and the trial court has a duty to instruct on a lesser included offense which is supported by substantial evidence. Where there is no substantial evidence applicable to the lesser degrees of the offense charged and all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to a lesser degree of the offense are not necessary. State v. Brice, 276 Kan. 758, Syl. 4, 80 P.3d 1113 (2003).
The evidence shows that Tena Wright, whose apartment was next to Alicia's apartment on the north, was upstairs in her bedroom when the explosion occurred. Her daughter
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