NOT DESIGNATED FOR PUBLICATION. No. 108,394 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee,

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1 NOT DESIGNATED FOR PUBLICATION No. 108,394 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ISAAC D. WILLIAMS, JR., Appellant. MEMORANDUM OPINION Affirmed. Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed December 4, Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee. Before POWELL, P.J., PIERRON and LEBEN, JJ. LEBEN, J.: After a 2-day trial, a jury convicted Isaac Williams of aggravated burglary, aggravated battery, aggravated assault, and domestic battery. His convictions are the result of an altercation with his then-girlfriend, Tanya Robinson. During the altercation, according to the State's evidence, Williams broke into Robinson's home, strangled her, and threatened her and her possessions with a baseball bat. Luckily for Robinson, a friend overheard the confrontation and called police. At trial, Williams' defense focused on trying to persuade the jury that he lived with Robinson at the time of

2 the altercation (which would have negated the burglary claim) and pointing out inconsistencies in Robinson's statements to police. On appeal, Williams raises several issues. Those include claims that the evidence was insufficient to support the aggravated-burglary charge, objections to jury instructions, a claim that the jury's convictions for two of the offenses were for crimes that couldn't both occur together, and a claim that the Kansas statute on aggravated battery is so vague as to violate constitutional requirements that people have fair notice of what constitutes a crime. The resolution of these issues must take into account the specific evidence presented at trial and the way in which each issue was raised at trial. Accordingly, we will start our review by looking at the evidence presented and some of the procedural events that may impact our resolution of the issues Williams has raised. FACTUAL AND PROCEDURAL BACKGROUND On July 24, 2011, Williams had an argument on the phone with Robinson. In the course of that conversation, Robinson tried to convince Williams not to come to her home after he got off work. But Williams came over anyway. When Williams first arrived, Robinson did not let him in; instead, she let him knock on the door for "a long period of time." When she finally answered the door, she still did not let him in. Williams then walked away, and Robinson latched her front door. Williams soon returned and began pounding on the door so hard that a friend who was talking with Robinson on the phone could hear him. Williams then broke a decorative, diamond-shaped glass pane on Robinson's front door and forced the door open, leaving visible damage to the doorframe. Once inside, Williams grabbed Robinson, strangled her, and then picked up a baseball bat she kept by the front door for protection. He threatened to harm her and her 2

3 possessions with the baseball bat. Robinson then slipped out the front door and tried to call 911 but was unsuccessful. The friend Robinson had been on the phone with overheard the initial argument and altercation and called 911. When police arrived, they observed that Robinson had marks on her neck consistent with strangulation. Officers questioned Robinson about her relationship with Williams, and she said that they were dating but that Williams only spent the night sometimes. The officers then searched the home for some indication that Williams lived with Robinson (because he had told them he did) and only found items consistent with an overnight stay: a shaving kit and one change of clothes. Williams was charged with aggravated burglary, aggravated battery, aggravated assault, domestic battery, and criminal trespass. He was convicted of all charges except criminal trespass and sentenced to 142 months in prison. He then filed this appeal. ANALYSIS I. Williams' Convictions for Aggravated Burglary and Domestic Battery Were Not Mutually Exclusive. Williams' first argument is that his convictions for aggravated burglary and domestic battery were mutually exclusive and that because of this he is entitled to a new trial. His basic argument is that since the State had to prove he had no authority to enter the premises for the aggravated-burglary charge, that conviction conflicted with the domestic-battery conviction, for which the State had to prove that he lived with or had previously lived with Robinson. Because determining whether convictions are mutually exclusive is strictly a question of law, we review the issue independently, without any required deference to the district court. See State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91 (2014). 3

4 To support his argument, Williams relies on footnote eight from United States v. Powell, 469 U.S. 57, 69 n.8, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), a United States Supreme Court opinion, and on State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010), a North Carolina Supreme Court case interpreting that footnote. Powell reaffirmed a long-standing rule not helpful to Williams that inconsistent verdicts are not unconstitutional. See 469 U.S. at The Court faced a seemingly inconsistent verdict in Powell, where the defendant argued that "the jury could not properly have acquitted her of conspiracy to possess cocaine, and still found her guilty of using the telephone to facilitate those offenses." 469 U.S. at 69. The Court said that while it was possible that the government may sometimes obtain a conviction it shouldn't have, "[i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the... offense [of conviction], and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense." 469 U.S. at 65. The Court unanimously ruled that inconsistent verdicts of this nature do not violate any constitutional right of the defendant. See 469 U.S. at 64-66, 69. But footnote eight of that opinion left open the possibility that mutually exclusive verdicts would be unconstitutional: "Nothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other." Powell, 469 U.S. at 69 n.8. Many states, such as North Carolina, interpret this language to require a new trial whenever a jury returns mutually exclusive (or legally impossible) guilty verdicts. See, e.g., Mumford, 364 N.C. at 398, (noting that defendants are entitled to a new trial when convicted of mutually exclusive crimes). And still more states including Kansas follow the same rule but without reference to Powell. In 2012, the Kansas Supreme Court held that courts cannot sustain legally impossible verdicts. State v. Hernandez, 294 Kan. 200, 207, 273 P.3d 774 (2012). In 4

5 Hernandez, the court ordered a mistrial because the jury convicted the defendant of both aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child. 294 Kan. at 207. Mistrial was appropriate because it was legally impossible for the defendant's actions to satisfy the elements of both crimes simultaneously. 294 Kan. at 207. The elements of attempted aggravated indecent liberties with a child require that the defendant failed to commit the crime, whereas the elements of aggravated indecent liberties with a child require the defendant to have successfully committed the crime. Because an element of one crime directly negated an element of the other, the jury's guilty verdicts were legally impossible. 294 Kan. at The Kansas Supreme Court has not had the opportunity to explore the legalimpossibility rule in depth since Hernandez. But other courts employing the same rule have done so and found that legally impossible verdicts only occur when "a conviction as to one of the crimes must negate an element of the other." (Emphasis added.) United States v. Maury, 695 F.3d 227, 266 (3d Cir. 2012); see also Hammonds v. State, 7 So. 3d 1055, (Ala. 2008) (explaining that verdicts are mutually exclusive "if the existence of any of the elements of one offense negates the existence of any of the elements for another offense of which the defendant also stands convicted"); People v. Weare, 155 P.3d 527, 529 (Colo. App. 2006) ("When a jury returns verdicts convicting a defendant of two crimes, and the existence of an element of one of the crimes negates the existence of a necessary element of the other crime, the verdicts are legally and logically inconsistent and may not be sustained." [citing People v. Frye, 898 P.2d 559 (Colo. 1995)]); State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993) ("[W]e look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted."); Mumford, 364 N.C. at 400 ("Verdicts are mutually exclusive when a verdict 'purports to establish that the [defendant] is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other.'" [quoting State v. Meshaw, 246 N.C. 205, 207, 98 S.E.2d 13 (1957)]). The Kansas 5

6 Supreme Court's ruling in Hernandez is consistent with this rule: legally impossible verdicts arise only when an element of one crime negates an element of the other. The specific facts of a given case do not enter into the analysis. Williams admits that "[c]onvictions for aggravated burglary and domestic battery are not per se [or necessarily] mutually exclusive" but argues that the facts "demonstrate that the convictions are mutually exclusive in this case." (Emphasis added.) But the facts of Williams' case are not relevant. If the elements of the crimes are not necessarily mutually exclusive, then the legal-impossibility rule outlined in Hernandez does not apply. The elements of aggravated burglary and domestic battery do not conflict. Aggravated burglary is "without authority, entering into or remaining within any building... in which there is a human being with intent to commit a felony, theft or sexually motivated crime therein." K.S.A Supp (b). Domestic battery is "[k]nowingly or recklessly causing bodily harm by a family or household member against a family or household member" or "knowingly 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 Supp (a). Family or household members are "persons 18 years of age or older... who are presently residing together or who have resided together in the past." (Emphasis added.) K.S.A Supp (c)(1). The definition of family or household member allows the jury to select between two alternatives: people presently residing together or people who have resided together in the past. A jury is free to find that a defendant resided with the victim in the past but not at the time of the crimes and that the defendant entered the victim's residence without authority. No element of one crime necessarily negates an element of the other, so it is possible to commit both aggravated burglary and domestic battery simultaneously. 6

7 Even if we were to consider the facts of Williams' case, they would not lead us to conclude that these two offenses were mutually exclusive here. The domestic-battery conviction required only that the jury concluded that Williams and Robinson had at some point lived together, not that they did so on July 24, There was evidence to support the conclusion that Williams had once lived with Robinson but did not do so at the time of these events. We do not find that the convictions for these offenses were mutually exclusive, and Williams is not entitled to a new trial on that basis. II. The State Presented Sufficient Evidence for the Jury to Find That Williams Entered Robinson's Home Without Authority on July 24, Williams next argues that the State failed to prove that he lacked the authority to enter Robinson's home at 807 Erie on the night of the incident, a challenge to the sufficiency of the evidence. When considering the sufficiency of the evidence, an appellate court must defer to the factual findings at trial here by the jury, which heard the evidence directly. Since the jury found in the State's favor, we must "look[] at all the evidence in a light most favorable to the prosecution and [then] determin[e] whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Frye, 294 Kan. 364, , 277 P.3d 1091 (2012) (citing State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 [2010]). In doing so, we do not reweigh the evidence or determine the credibility of witnesses. 294 Kan. at 375. Williams asserts that the State could not have met its burden of proof without proving (1) that Williams lacked authority to enter Robinson's home on July 24, 2011, and (2) that Williams had "abandoned" living there before that date. Williams requires too much. The State only needs to present enough evidence to prove each element of the crime, as prescribed by statute. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Rupert, 247 Kan. 512, , 802 P.2d 511 (1990). Here, 7

8 K.S.A Supp (b) establishes the elements of aggravated burglary, and it does not include anything about the defendant's living situation before the crime: "Aggravated burglary is, without authority, entering into or remaining within any building, manufactured home, mobile home, tent or other structure, or any vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is a human being with intent to commit a felony, theft or sexually motivated crime therein." Under the statute, the State only had to prove that Williams lacked authority to enter Robinson's home on July 24, 2011, not that he had moved out some time earlier and adopted a new residence. Williams appears to argue that because he had lived with Robinson at the home in the past, he could not possibly have entered the home without authority. But having once lived at a place does not preclude a jury from finding that a defendant has entered the home without authority. No Kansas appellate court opinion has provided a definition for the term "without authority" in the context of aggravated burglary. Instead, courts have looked to the circumstances surrounding the entry to determine whether it was in fact made "without authority." In State v. Vasquez, 287 Kan. 40, 59-60, 194 P.3d 563 (2008), for example, the court overturned an aggravated-burglary conviction because the wife did not have a restraining order preventing her husband from entering the home and the State did not prove that she had denied him entry). Similarly, in State v. Franklin, 280 Kan. 337, , 121 P.3d 447 (2005), the court overturned an aggravated-burglary conviction because the defendant had testified that she had permission to enter, stored her car in the home's garage, and kept clothes in the home), and in State v. Harper, 246 Kan. 14, 19-20, 785 P.2d 1341 (1990), the court overturned an aggravated-burglary conviction because the defendant had been given keys to the building). But the court upheld an aggravated-burglary conviction in State v. Birth, 37 Kan. App. 2d 753, , 158 P.3d 345, rev. denied 284 Kan. 947 (2007), where the victim testified that the defendant had 8

9 pushed his way into the home, testimony that was sufficient to support the aggravatedburglary conviction even though the defendant testified that he had been invited to enter. And the court upheld an aggravated-burglary conviction in State v. Mogenson, 10 Kan. App. 2d 470, 475, 701 P.2d 1339, rev. denied 238 Kan. 878 (1985), under the portion of the statute making "remaining within" a building without authority a crime when the person has the intent to commit a felony or theft there. In Mogenson, the defendant had remained within his wife's home without authority because she had demanded that he leave even though their son had let him in. So the inquiry does not hinge on whether a person once resided at the place of the alleged burglary courts focus on whether the defendant had permission to enter or to remain there. In his appellate brief, Williams neither addresses the facts of his case nor points to the record to support his argument. He just makes the conclusory statement that "Ms. [Robinson] may have wanted Mr. Williams to stay away. But that does not mean she could exclude him from his home and the [S]tate failed to show that Ms. [Robinson] had such authority." Reviewing the evidence, we find that the State presented sufficient evidence to support the jury's finding that Williams entered Robinson's home without authority on July 24, Robinson testified that she had spoken with Williams before the incident and had tried to convince him not to come over after work. When Williams first arrived, Robinson did not let him in right away; she let him knock on the door "for a long period of time" before opening it. When she finally opened the door, she did not let him in. Williams then walked away, and Robinson locked the door. When Williams returned, he began pounding on the door so hard that a friend talking to Robinson on the phone could hear him. Williams then broke the glass pane on Robinson's front door and forced the door open, leaving visible damage to the doorframe. 9

10 There was other evidence, of course. Williams called several witnesses who testified that he had lived with Robinson in the weeks leading up to the incident. Michella Young testified that Williams had told her that he and Robinson were moving in together and needed some appliances, so Young sold him a washing machine. Young further testified that Williams and Robinson had picked up the washer together; Young said she had visited their new residence two or three times at some point before the incident and that it looked as if Williams was living there. Williams' sister also testified that she knew the couple to be living together starting some time in May or April and that Robinson had stayed with her while they were in the process of getting the home approved. Williams' supervisor and friend, Freddy Hutt, said he had helped the couple move furniture into the home in preparation for a visit from state child-welfare personnel who were going to determine whether Williams' children would be allowed to visit him there. In addition, the parties stipulated that the utilities at the home were in Williams' name starting in early July Yet when police arrived on July 24, 2011, there was no indication that Williams lived there. The only items found there that belonged to Williams were a shaving kit and a change of clothes. Furthermore, Robinson had taken Williams' key back some time before the day of the incident. The evidence Williams presented may show that he had lived with Robinson at one time, but it does not necessarily show that he lived there at the time of the incident. The lack of personal belongings in the home combined with the unrebutted testimony that Robinson asked Williams not to come over and then took steps to let him know he was not welcome in her home is sufficient to support the jury's verdict despite the fact that the utilities were in his name. A reasonable jury could have found that Williams had entered Robinson's home without authority on July 24,

11 III. The District Court Did Not Err by Referring to a Baseball Bat as the Deadly Weapon at Issue in the Case in the Jury Instructions for Aggravated Assault. Williams next objects to one of the jury instructions. Because Williams did not object to any of the jury instructions at trial, we review his claim of error using a two-part test. State v. Williams, 295 Kan. 506, , 286 P.3d 195 (2012); see K.S.A Supp (3). First, we must determine, without any required deference to the trial court, whether the trial court "erred in giving or failing to give a particular instruction." 295 Kan. at Second, if there was error, we must decide whether that error warrants reversing the defendant's conviction. 295 Kan. at 516. When the parties did not object, we reverse only if we are "firmly convinced that the jury would have reached a different verdict had the instruction error not occurred." 295 Kan. at 516; see State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013); State v. Berney, 51 Kan. App. 2d, 353 P.3d 1165, 1173 (2015). Williams challenges the aggravated-assault instruction (Instruction 7) given at his trial, targeting the reference in it to "a baseball bat": "In Count 3, the defendant is charged with the crime of aggravated assault.... "To establish this charge, each of the following claims must be proved: "1. That the defendant intentionally placed Tanya R. Robinson in reasonable apprehension of immediate bodily harm; "2. That the defendant used a deadly weapon, a baseball bat; "3. That this act occurred on or about the 24th day of July, 2011, in Sedgwick County, Kansas. "No bodily contact is necessary. 11

12 "As used in these instruction, the term Deadly Weapon includes any instrument which, from the manner in which it is used, is calculated or likely to produce death or serious injury." Williams argues that item two of the instruction removed an element of the crime from the jury's consideration by "equat[ing] a baseball bat with a deadly weapon as opposed to requiring the jury to find that the baseball bat was a deadly weapon." (Emphasis added.) Doing so, Williams says, violated his Fifth and Sixth Amendment rights. The State, however, reads item two as merely indicating the object Williams was alleged to have used not as directing the jury to find that the bat was a deadly weapon. An instruction removes an element of a crime from the jury's consideration when it directs the jury to make a certain finding. See State v. Sisson, 302 Kan., 351 P.3d 1235, (2015); State v. Colbert, 244 Kan. 422, 425, 427, 769 P.2d 1168 (1989). The Colbert case and State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991), provide helpful examples of when an instruction improperly removes an element of a crime from the jury's consideration. In Colbert, the trial court instructed the jury that "a firearm is a deadly weapon as a matter of law." 244 Kan. at 425. Because the instruction commanded the jury to find that a firearm was a deadly weapon, the trial court committed reversible error and the defendant was granted a retrial under proper instructions. 244 Kan. at 427. In Sutherland, by contrast, the trial court instructed the jury that to find the defendant guilty, it must find that "Mr. Sutherland was armed with a deadly weapon, to-wit: a knife." 248 Kan. at 99. The court affirmed this instruction, explaining that "to-wit: a knife" did not "instruct the jury that it is a deadly weapon"; rather, it merely indicated which weapon the State had to prove was, in fact, a deadly weapon the knife. See 248 Kan. at 101. Because the instruction "place[d] the burden on the State to prove the knife [was] a deadly weapon," it did not take consideration of an element of the crime away from the jury. 248 Kan. at 12

13 101; see also State v. Moore, No. 100,090, 2009 WL , at *10 (Kan. App. 2009) (unpublished opinion) (following Sutherland), rev. denied 290 Kan (2010). Instruction 7 in our case closely resembles the instruction at issue in Sutherland: Our case: "That the defendant used a deadly weapon, a baseball bat." Sutherland: "Mr. Sutherland was armed with a deadly weapon, to-wit: a knife." In our case, the instruction simply uses what grammarians call an appositive, a noun (often with modifiers) set beside another noun to explain or identify it. For example, in the preceding sentence, the phrase "a noun (often with modifiers set beside another noun to explain or identify it" is itself an appositive, telling the reader what the preceding noun "appositive" means. A simpler sentence using an appositive would be: "Kim's car, a Ford Focus, was damaged in the accident." In Sutherland, the trial court used the term "to-wit," meaning namely, to connect the two nouns. In addition to using a phrase virtually identical to the one held proper in Sutherland, the trial court here added some language that further clarified that it wasn't taking the issue of whether this baseball bat was a deadly weapon away from the jury. Instruction 7 defines deadly weapon, while the instruction in Sutherland did not separately do so. See Sutherland, 248 Kan. at 100. Because courts must look at jury instructions as a whole and do not dissect "instructions to find portions that, when read in isolation, misstate the law," the trial court's inclusion of a definition for deadly weapon is significant. See Sisson, 302 Kan., Syl. 5. By defining deadly weapon, Instruction 7 more clearly placed the burden on the State to prove that the bat was a deadly weapon than did the instruction in Sutherland. Trial courts should be careful when using a sentence constructed like this one or the one in Sutherland: The use of an appositive generally does equate the two nouns. But this form of instruction was upheld in Sutherland, and the court in our case helped the jury by separately defining what a deadly weapon is something that wouldn't have been 13

14 needed had the court intended to tell the jury that the baseball bat had to be considered a deadly weapon in this case. Courts "credit juries with an ability to understand words in context," Sisson, 351 P.3d at So understood, Instruction 7 placed the burden on the State to prove that the baseball bat was a deadly weapon and did not remove an element of the crime from the jury's consideration. We find no error in giving this instruction. IV. The District Court's Failure to Instruct the Jury on the Lesser-Included Offenses of Simple Assault and Simple Battery Was Not Reversible Error. Williams argues that the jury should have provided lesser-included-offense instructions to the jury, giving it the options of simple assault instead of aggravated assault and simple battery instead of aggravated battery. Williams asks the court to reverse his aggravated-assault and aggravated-battery convictions and remand the case for a new trial on those charges. We use a two-step test to review a trial court's decision not to instruct the jury on lesser-included offenses. State v. Armstrong, 299 Kan. 405, , 324 P.3d 1052 (2014). In the first step, we determine whether it was "legally and factually appropriate" to instruct the jury on the lesser-included offense. 299 Kan. at 432 (quoting Williams, 295 Kan. at 521). A lesser-included-offense instruction is legally appropriate when the lesser crime is an included offense of the crime charged, and it is factually appropriate when there is some evidence that would reasonably justify convicting the defendant of the lesser-included crime. 299 Kan. at 432 (citing K.S.A Supp [3]). Generally, a lesser-included-offense instruction is factually appropriate when the evidence supporting the greater charge fulfills the elements of the lesser charge, such that the jury could have convicted on the lesser charge "without having its verdict subject to reversal for insufficient evidence." State v. Haberlein, 296 Kan. 195, 204, 290 P.3d 640 (2012), cert. denied 134 S. Ct. 148 (2013). 14

15 If we find that a lesser-included-offense instruction was legally and factually appropriate, then we proceed to step two. Armstrong, 299 Kan. at 433. In it, we must determine whether the trial court's failure to give a lesser-included-offense instruction warrants reversing the jury's verdict. 299 Kan. at 433. Because Williams did not object to the instructions at trial, we may reverse the jury's verdict only if, after reviewing the entire record, we are "firmly convinced that the jury would have reached a different verdict" had it been instructed on the lesser-included offenses. 299 Kan. at 433 (citing Williams, 295 Kan. at ). In both steps, we must review the matter independently, without any required deference to the trial court. 299 Kan. at A. The District Court Did Not Err in Not Giving an Instruction on Simple Assault. There is no question that simple assault is a legally appropriate lesser-included offense of aggravated assault. State v. Nelson, 224 Kan. 95, 97, 577 P.2d 1178 (1978); State v. Gilkes, No. 109,259, 2014 WL , at *3 (Kan. App. 2014) (unpublished opinion), petition for rev. filed March 12, The question, then, is whether it was factually appropriate here. Williams does not address whether simple assault was factually appropriate. He simply argues that a bat is not "a deadly weapon per se; it depends entirely on how it is used, as evaluated by the jury." He says that the evidence about the baseball bat "was not so overwhelming as to only result in a conclusion that it had been used as a deadly weapon" and that "there is little doubt that this Court would find sufficient evidence" to support a simple-assault conviction. Though this may be true, Williams fails to argue what evidence makes simple assault factually appropriate. Because Williams failed to cite to the record to support his assertions and did not offer any analysis of the evidence, he has failed to properly designate a record, and we could properly consider the issue to have been abandoned. See 15

16 Supreme Court Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 41) ("The court may presume that a factual statement made without a reference to [the record] has no support in the record on appeal." [Emphasis added.]); see also State v. Florentin, 297 Kan. 594, 604, 303 P.3d 263 (2013) (finding issue abandoned when defendant failed to discuss factors required to win on his claims), disapproved on other grounds by State v. Jolly, 301 Kan. 313, , 342 P.3d 935 (2015); State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (explaining that party claiming error has burden on appeal to designate record). Even if we consider the evidence in this case, however, we do not find a lesserincluded-offense instruction for simple assault to have been factually appropriate. Here, the only difference between aggravated assault and simple assault is the presence of a deadly weapon. Compare K.S.A Supp (a) (simple assault) with K.S.A Supp (b)(1) (aggravated assault). Therefore, a simple-assault instruction was factually appropriate only if the jury could have reasonably found that Williams did not use a deadly weapon usually, a lesser-included-offense instruction doesn't need to be given when "no evidence is presented which would show that a dangerous weapon was not used." Sutherland, 248 Kan. at 102 (considering whether a deadly weapon was used for purposes of an aggravated-robbery charge). In Sutherland, for instance, the defendant did not dispute that he had a knife and that he had displayed it. Instead, he rested his defense on arguing that someone else had committed the crime. Because the only difference between the crime charged and the lesser-included offense was the presence of a deadly weapon, there was no evidence "upon which the jury could have found Sutherland guilty of robbery rather than aggravated robbery." 248 Kan. at 103. The only question left for the jury was whether the defendant was the one who committed the crime. Therefore, the trial court did not err in failing to give a lesser-included-offense instruction. 248 Kan. at

17 Here, it is undisputed that Williams wielded a baseball bat during the incident on July 24, Williams never suggested that he did not use the bat or that Robinson had any other possible reason to fear immediate bodily harm. His attorney merely argued to the jury that Robinson's "story just doesn't add up." His attorney added that Robinson's description of how he wielded the bat changed between July 24, 2011, and the trial, which took place in April But Williams never challenged whether the bat was a deadly weapon, nor did he present evidence that Robinson's fears were unreasonable. In these circumstances, we conclude that a simple-assault instruction was not factually appropriate. See K.S.A Supp (a) (defining simple assault); State v. Betty, No. 111,468, 2015 WL , at *3-4 (Kan. App. 2015) (unpublished opinion) (finding simple assault not factually appropriate where defendant did not contest that he held a gun throughout the incident and where "[t]here was no testimony indicating that anything other than the gun could have possibly put [the victim] in reasonable apprehension of immediate bodily harm"), petition for rev. filed August 7, Because a simple-assault instruction was not factually appropriate, the trial court did not err in not giving an instruction for simple assault. B. The District Court Did Not Err in Not Giving an Instruction on Simple Battery. There is no question that simple battery is a legally appropriate lesser-included offense of aggravated battery. State v. Simmons, 295 Kan. 171, 175, 283 P.3d 212 (2012); State v. Davis, 236 Kan. 538, 542, 694 P.2d 418 (1985). So we turn next to whether it was factually appropriate here. Again, Williams fails to explain why the simple-battery instruction is factually appropriate. He merely states that "the record contained evidence that Mr. Williams caused bodily harm to Robinson, which would support a conviction for simple battery" but doesn't cite to the record. Accordingly, we once again could properly consider the issue to have been abandoned. 17

18 Even if we consider the issue, however, we are not firmly convinced the jury would have come to a different verdict had this lesser-included-offense instruction been given. Simple battery is "(1) [k]nowingly or recklessly causing bodily harm to another person; or (2) knowingly causing physical contact with another person when done in a rude, insulting or angry manner." K.S.A Supp (a). Williams was charged with aggravated battery for "knowingly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted." K.S.A Supp (b)(1)(B). The only difference between the two crimes is the manner in which a defendant inflicts bodily harm and how great that harm was. Simmons, 295 Kan. at To be sure, there are serious questions in this case as to whether a simple-battery instruction would even have been factually appropriate photos showed and officers observed apparent strangulation marks on Robinson's neck, which certainly seems to have been a battery done in a manner that could have caused great bodily harm, disfigurement, or death. But even if a simple-battery instruction would have been factually appropriate and we were to proceed to step two of the legal test, we are not convinced that the jury would have come to a different verdict had the instruction been given. Williams again fails to cite to the record or to explain what evidence would have led the jury to convict him for simple battery. Williams argues that because the aggravated-battery statute "does not provide an articulable standard for differentiating between aggravated battery and simple battery," there is "a real possibility that the jury would have convicted Mr. Williams of simple battery." But as we have noted, the State presented substantial evidence at trial to suggest that Williams' actions could have caused great bodily harm, disfigurement, or death. Robinson testified that Williams strangled her until she could not speak or breathe and had begun to feel dizzy. Her testimony was 18

19 corroborated by photos showing marks on her neck and the responding officers' testimony that Robinson had marks on her neck consistent with strangulation. Significantly, as the State points out, Williams never contested the evidence that he strangled Robinson. We recognize that the State did not present expert testimony regarding the extent of Robinson's injuries, but expert testimony is not required. So long as there was evidence that Robinson suffered "more than slight, trivial, minor, or moderate harm," the jury was free to find that Williams' actions could have caused great bodily harm, disfigurement, or death. See State v. Green, 280 Kan. 758, 765, 127 P.3d 241 (citing State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 [2001]), cert. denied 549 U.S. 916 (2006). Causing someone to stop breathing and become dizzy is certainly more than "slight, trivial, minor," or even moderate harm. We are not firmly convinced that the jury would have convicted Williams only of simple battery had it been given that option. We therefore find no error in the failure to instruct on that lesser-included offense. We do want to briefly address one other point Williams made in his brief regarding the lesser-included-offense instructions. He argues that a heightened standard of review should apply whenever a trial court fails to give such an instruction because the failure to give it "implicates the state constitutional right to a jury trial." For support, Williams cites a recent Mississippi Supreme Court case, Harrell v. State, 134 So. 3d 266 (Miss. 2014), but we don't find it persuasive for the point Williams is making. In Harrell, the trial court instructed the jury on the elements of capital murder but failed to instruct the jury on the elements of the underlying felony. Because the jury had not been instructed on the elements of the underlying felony, it could not have decided whether the defendant was guilty of each and every element of the crime charged, thus violating the defendant's constitutional right to a jury trial. 134 So. 3d at , 275. Because the deficient instruction violated the defendant's right to a jury trial, 19

20 the Mississippi Supreme Court held that "it is always and in every case reversible error for the courts of Mississippi to deny an accused the right to have a jury decide guilt as to each and every element." 134 So. 3d at 275. That's not the case here: Williams' jury was instructed on every element of the crime charged. Moreover, the Kansas Supreme Court has held that the failure to give a lesser-included-offense instruction is subject to clear-error review under the standards we have applied here, not under the harmless-error test applicable for errors of constitutional magnitude. See State v. Salary, 301 Kan. 586, 599, 343 P.3d 1165 (2015); State v. Roeder, 300 Kan. 901, 937, 336 P.3d 831 (2014), cert. denied 135 S. Ct (2015). V. The Statute Defining Aggravated Battery Is Not Unconstitutionally Vague. Williams argues that Kansas' aggravated-battery statute is unconstitutionally vague and, therefore, that his conviction under the statute is void. Williams did not challenge the aggravated-battery statute in the district court, so on appeal he must "affirmatively invoke and argue an exception to the general rule" that constitutional issues cannot be raised for the first time here. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Williams argues that two of the three exceptions apply: (1) "the newly asserted theory involves only a question of law arising on proved or admitted facts and... is finally determinative of the case" and (2) "consideration of the [issue] is necessary to... prevent denial of fundamental rights." State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982). We will assume for the purposes of this decision that Williams' issue can properly be considered a legal one that would determine the outcome of Williams' challenge to his conviction for aggravated battery. Even so, his position is contrary to established caselaw. The phrase "can be inflicted" in Kansas' aggravated-battery statute has been challenged for vagueness many times before and has withstood every challenge. In State v. Kleber, 2 Kan. App. 2d 115, 20

21 118-19, 575 P.2d 900, rev. denied 225 Kan. 846 (1978), our court considered a previous version of the aggravated-battery statute and held that the phrase "can be inflicted" was not unconstitutionally vague. The Kansas Supreme Court discussed Kleber approvingly when holding that other portions of the aggravated-battery statute also were not unconstitutionally vague in State v. Bowers, 239 Kan. 417, 426, 721 P.2d 268 (1986). Since then, our court has repeatedly cited Kleber for support when upholding the constitutionality of the current statute's identical "can be inflicted" language. E.g., In re J.A.B., 31 Kan. App. 2d 1017, , 77 P.3d 156, rev. denied 277 Kan. 924 (2003); State v. Wade, No. 112,121, 2015 WL , at *4 (Kan. App. 2015) (unpublished opinion), petition for rev. filed October 19, 2015; State v. Seck, No. 110,786, 2015 WL , at *11 (Kan. App. 2015) (unpublished opinion), rev. denied 302 Kan. (October 7, 2015); State v. Landwehr, No. 107,273, 2013 WL , at *4 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan (2013). We find no merit in Williams' argument that K.S.A Supp (b)(1)(B) is unconstitutionally vague. VI. There Was No Cumulative Error. Williams' final claim on appeal is that the trial court committed so many errors that all of his convictions should be reversed. It's true that trial errors that are individually harmless may warrant reversing a defendant's convictions when considered together. State v. Hart, 297 Kan. 494, 513, 301 P.3d 1279 (2013). But here there is at most one error we have left open the possibility that a lesser-included-offense instruction on simple battery would have been factually and legally appropriate, even though it did not rise to the level of clear error. One trial error does not support reversing a defendant's convictions under the cumulative-error rule. Haberlein, 296 Kan. at 212. We affirm the district court's judgment. 21