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State v. Dixon6/3/2005
was downstairs. The ceiling of Wright's bedroom collapsed on her, and fallen rafters blocked the door so that she was unable to get out to go downstairs. Wright made her way through thigh-deep debris to the window, where she could see her daughter standing on the ground below. The smoke was beginning to get heavy, heat was rising up through the ductwork, and the fire was coming into the bedroom. Knowing that she either had to go out the window or be burned, she chose the window. James Woodling was standing on the fence below and reaching up for her, but he was unable to hold her. Wright fell against the fence and landed on the air conditioning unit. Her legs and feet were cut and so severely bruised that they became black and swollen to nearly double normal size. Her left side became numb and immobile, and fluid developed in her abdomen. Wright sustained permanent back injuries including a herniated disk, pinched nerve, and inflammation. She took physical therapy for 31/2 months and, at the time of trial, was considering spinal injections or back surgery to treat continuing pain.
James Woodling lived next door to the Eastgate Plaza Apartments. When he heard the explosion, he told his wife to call 911 and ran toward the apartments. Woodling and another nearby resident got Wright's daughter out of her apartment. Woodling then got up on the fence to reach up toward the window of Wright's bedroom. As Wright gripped the windowsill, Woodling was able to reach her legs. The building wall was unstable so that Woodling had to push back the wall with one arm and try to hold Wright with the other. He tried to pull her to him as her grip on the sill loosened, but he was only able to slow her momentum as she fell. While he was trying to rescue Wright and hold the wall back, Woodling's back was injured. He suffered two herniated disks in his lower back, which have caused nearly constant pain since that day. At the time of trial, he had begun receiving epidural treatments for his back pain.
Nathan Medlen, another nearby resident who ran to help after the explosion, was told by Wright's daughter that her mother was upstairs. When he got about halfway up the stairs in Wright's apartment, a cylindrical projectile flew through the wall, trapping Medlen's hand between the railing and fallen sheetrock and breaking his fifth metacarpal. He lost his job as a result, and, at the time of trial, he was still receiving some disability benefits and was only able to do light-duty work. The fracture healed so that he has a big lump on the back of his hand.
In Brice, 276 Kan. 758, the court considered the recurring question whether a trial court acts properly in limiting a jury's consideration to great bodily harm. The court stated:
"It is a trial court's time-honored responsibility to examine the evidence to determine whether a defendant can be convicted of a lesser included offense. The trial court accordingly guides the jury's deliberations by giving or not giving lesser included offense instructions. . . . Whether there is evidence in the case to support the giving of a lesser included instruction is a determination to be made by the trial court. If there is evidence that the harm was slight, trivial, moderate, or minor, then the trial court must give a lesser included instruction. Thus 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 773-74.
Injuries in recent cases where the court affirmed the trial court's determination that an injury was great bodily harm and would not support a lesser included off
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