No. 87,788

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DEREK DWAYNE BRICE,

Appellant.

SYLLABUS BY THE COURT

In this appeal from a jury conviction of severity level 4 aggravated battery, K.S.A. 21-3414(a)(1)(A), it is held the trial court did not err (1) when it refused to give instructions for severity levels 7 and 8 aggravated battery, (2) when it instructed the jury that great bodily harm occurs when a person sustains a "through and through bullet wound," and (3) when it refused to permit the testimony of a physician concerning inadmissible evidence and legal conclusions. With the absence of trial error, the totality of the circumstances did not prejudice the defendant and deny him a constitutionally fair trial.

Appeal from Labette District Court; DANIEL L. BREWSTER, judge. Opinion filed February 28, 2003. Affirmed.

Shawn Minihan, assistant appellate defender, and Randall Hodgkinson, deputy appellate defender, for appellant.

Steven W. Wilhoft, county attorney, and Carla J. Stovall, attorney general, for appellee.

Before GERNON, P.J., KNUDSON, J., and LARSON, S.J.

LARSON, J.: Derek Dwayne Brice appeals his jury conviction of severity level 4 aggravated battery, K.S.A. 21-3414(a)(1)(A), contending the trial court erred (1) when it instructed the jury that great bodily harm occurs when a person sustains a "through and through bullet wound," (2) when it refused to give instructions for severity levels 7 and 8 aggravated battery, and (3) when it refused to allow him to present the testimony of a physician. Brice further contends the totality of the circumstances prejudiced him and denied him a constitutionally fair trial.

Although the facts surrounding the gunshot wound inflicted by Brice upon Ivory Kelly are central to the issues raised by this appeal, they are not greatly in dispute. Simply stated, Brice had replaced Kelly in a relationship with a woman named Nichole Kendrick and was driving one of Kelly's cars. Although Kendrick and Kelly had lived together for a number of years and had three children, Brice's driving of any of Kelly's cars was at the crux of the dispute which led to the shooting in issue.

Kendrick testified that Kelly did not like Brice, had threatened to "kick his ass," and had told her not to allow Brice to drive any of the three cars that Kelly and Kendrick owned together. Kelly worked two jobs to afford the cars and was insistent that Brice should not be driving them.

In February 2001, Kendrick and Brice dropped off one of the cars at Kelly's house to use while another car needed repairs. Kelly asked Kendrick about her allowing Brice to drive his car, and Kendrick ignored him. Kelly then went to a Save-A-Lot store to buy food for the children and observed Brice and Kendrick in the parking lot. An argument occurred between Kelly and Kendrick concerning Brice and the cars. Kelly instructed Brice to give Kendrick the keys to the car so she could take the children home.

As Kendrick left the parking lot, Kelly walked toward the store and Brice. When they were approximately 2 feet apart, Brice shot Kelly with a 9mm handgun. The bullet entered Kelly's upper right thigh and exited his buttocks.

Kendrick took Kelly to the Parsons Hospital emergency room. The treating physician, Dr. Myers, testified at trial that the bullet missed the bone, major arteries, veins, and nerves. Dr. Myers said the wound was cleaned but not stitched closed because closing the wound would increase the chance for infection. He specifically testified "that it was a through and through injury."

Kelly was kept overnight at the hospital and checked by Dr. Myers the following day for circulation in the leg. He was given pain medication and released. Kelly said he limped for approximately 1 week but did not use crutches. He missed a week and a half of work and has a scar at both the entry and exit points.

Brice turned himself in to the police approximately 10 hours after the shooting. He was given a Miranda warning and consented to an interview. He told Detective Gofourth, who testified at trial as to the conversation, that Brice said Kelly and Kendrick pushed and grabbed each other at the store, which led to an altercation between Kelly and himself. Brice said Kelly knocked the car keys from his hand and struck him. Brice said he "just blacked out" and did not know if he shot Kelly or not.

During a second interview, Brice told the detective he shot Kelly because he was afraid of him. He admitted to obtaining a 9mm gun because of this fear. The gun had been given to Kendrick and was not located. Kendrick exercised her Fifth Amendment rights at trial when questioned about the gun. It was established at trial that Kelly was a much larger man than Brice and had played linebacker on a high school football team in Louisiana where Brice and Kelly had known each other.

In addition to Dr. Myers' testimony, Officer Riley and Kelly testified in the State's case in chief that the bullet entered Kelly's upper right thigh and exited through his right buttock. After the State rested, Brice moved for a judgment of acquittal on the ground that the State had failed to prove that Kelly had sustained great bodily harm.

The majority of the Kansas cases involving the difference between "bodily harm" and "great bodily harm" were discussed and argued. Brice's contention that he was entitled to lesser included instructions on level 7 and level 8 aggravated battery was considered. In addition, there was the question of whether Brice would be allowed to call a physician he had not previously designated as a witness who was expected to testify that Kelly's gunshot wound resulted only in "bodily harm" and not "great bodily harm" and there was no disfigurement.

Included in the discussion was the question of whether this was a multiple acts situation which required an instruction on that question. This is not an issue on appeal.

Eventually, the trial court held that "bodily harm" or "great bodily harm" is a determining factor as to the severity level of aggravated battery and the court was obligated to determine "as a matter of law" if great bodily harm occurred in order to classify the crime charged and properly instruct the jury. The court discussed the severity and location of the wounds in other Kansas cases and noted that Kelly's wound was not one which just grazed the skin. Thus, the court concluded that there was a factual issue as to whether it was "great bodily harm" or only "bodily harm."

The trial judge decided that the State's evidence clearly established that the gunshot wound constituted "great bodily harm" and he was obligated to so find as a matter of law and to give the jury a definitional instruction that a "through and through bullet wound is great bodily harm as a matter of law."

Once this question was resolved, the court held that disfigurement was not an issue in the case and that the testimony of Brice's medical expert, Dr. Miller, was not necessary. Defense counsel proffered Dr. Miller's expected testimony, stating he was a surgeon who served in the Vietnam war; he currently practices with Dr. Myers, the treating physician, and had reviewed Kelly's medical records. According to Dr. Miller, Kelly did not sustain great bodily harm or disfigurement because the scars left by the bullet were similar to scars after a child falls off a bicycle. The defense argued that Dr. Miller's testimony was necessary but the trial court's ruling had removed the possibility that Dr. Miller could offer any meaningful evidence.

The court reviewed the jury instructions. It agreed it should give a self-defense instruction. The defense again requested instructions for the lesser included forms of aggravated battery and objected to the definition of great bodily harm as being a "through and through bullet wound." The court declined to give instructions on severity levels 7 and 8 (bodily harm) aggravated battery (bodily harm) and determined it would instruct the jury that the term "great bodily harm" meant a "through and through bullet wound." Instructions were to be given on severity levels 4 and 5 (intentional and reckless) aggravated battery where great bodily harm existed.

Brice rested without calling any witnesses. In closing, he argued that he did not intentionally shoot Kelly and did not intend to cause any harm to Kelly. The defense also argued Brice acted in self-defense because Kelly had threatened him, Kelly was much physically larger and stronger than he was, and he was afraid of Kelly.

The jury found Brice guilty of level 4 (intentional) aggravated battery. Motions for downward dispositional and durational departure were denied, and Brice was sentenced to the mid-range guidelines sentence of 41 months in the custody of the Secretary of Corrections. This appeal followed.

Brice's first three issues on appeal are interrelated as each one involves the legal differences between bodily harm and great bodily harm under K.S.A. 21-3414, the instructions to be given, and admissibility of expert testimony. We will discuss all three issues as they relate to each other, the statutory language in issue, and the evidence in this case. Different standards of review are applicable, which we first summarize:

"When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]" State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).

In considering whether a lesser included offense instruction is required, State v. Valentine, 260 Kan. 431, 434, 921 P.2d 770 (1996), a case we will later discuss in great detail, teaches us:

"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. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987). '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 the lesser degree of the offenses are not necessary.' Gibbons, 256 Kan. at 955."

We further look to the extensive discussion in State v. Smallwood, 264 Kan. 69, 80-81, 955 P.2d 1209 (1998), as to the proper tests for admission of expert testimony in criminal actions and on appeals therefrom:

"The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. [Citations omitted.]

"The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. . . .

"No error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. K.S.A. 60-261; State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 (1994).

"An appellate court's review of the trial court's admission of evidence is a two-step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if the evidence was improperly admitted, it must determine whether to apply the harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.

"Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. McClanahan, 259 Kan. 86, Syl. ¶ 4, 910 P.2d 193 (1996)."

Although we may at times consider cases which involve aggravated battery as statutorily defined prior to July 1, 1993, the language of our present statute which became effective as of that date is central to our appeal and reads in its entirety as follows:

"(a) Aggravated battery is:

(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or

(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or

(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.

"(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in subsection (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 21-4704 and amendments thereto." K.S.A. 21-3414.

While much of our opinion in State v. Ochoa, 20 Kan. App. 2d 1014, 1019, 895 P.2d 198 (1995), was disapproved by the Supreme Court in State v. Valentine, 260 Kan. at 435, which we will later discuss in detail, the following chart, which is found in our Ochoa opinion, sets forth the various elements of each subsection and the applicable severity levels in a clear understandable manner: