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STATE v. LAFOE10/31/1997
Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated December 23, 1997, pursuant to Rule 7.04 (1997 Kan. Ct. R. Annot. 44).
This is an appeal by Nikki L. Lafoe from jury convictions of two counts of aggravated battery and one count each of DUI and failure to maintain a single lane. In pretrial and post-trial motions, Lafoe contended that he should have been charged with simple battery instead of aggravated battery. Lafoe also argued that his DUI and traffic convictions were multiplicitous with his convictions for aggravated battery. On appeal, Lafoe repeats these arguments. He further argues that the trial court committed reversible error in overruling his objections to the closing remarks of the prosecutor. We disagree and affirm.
After working a double shift, Lafoe played poker and drank several beers. While driving home, Lafoe crossed the center line and collided with an oncoming car. It is undisputed that the occupants of the car, Robert and Joan Warne, suffered severe and multiple injuries. Although Lafoe refused a sheriff officer's request to take a blood test, blood drawn for medical reasons revealed that his blood alcohol level was .172.
A jury convicted Lafoe of one count of aggravated battery in violation of K.S.A. 21-3414(a)(2)(A), a level 5 person felony; one count of aggravated battery in violation of K.S.A. 21-3414(a)(2)(B), a level 8 person felony; one count of operating a vehicle with a blood alcohol level above .08, a class B misdemeanor; and one count of failure to maintain a single lane. Lafoe received concurrent sentences of 41 months for the level 5 aggravated battery, 10 months for the level 8 aggravated battery, 6 months for the DUI, and was fined $25 for failing to maintain a single lane.
In pretrial and post-trial motions, Lafoe unsuccessfully argued that he was improperly charged with aggravated battery. He contended that the proper charge for his offense was simple or misdemeanor battery. Lafoe reasoned that when the legislature repealed the vehicular battery statute, the legislature contemplated that the former crime of vehicular battery would now be classified as simple or misdemeanor battery. Nevertheless, finding that K.S. A. 21-3412 and K.S.A. 21-3414 were clear and unambiguous, the trial court denied each motion. Whether the trial court erred
in denying Lafoe's motions on this ground raises a question of statutory interpretation. Interpretation of a statute is a question of law over which this court has unlimited review. See State v. Arculeo, 261 Kan. 286, 290, 933 P.2d 122 (1997).
Lafoe frames the issue as follows: "The question is whether the legislature intended that this crime [vehicular battery] remain a misdemeanor, under K.S.A. 21-3412, or elevate it to a level five person felony, K.S.A. 21-3414, with the same penalties that would be imposed if the victim died, involuntary manslaughter, K.S.A. 21-3404." Lafoe argues that the legislature intended that his acts be treated as a battery, not an aggravated battery, and that the legislature did not intend that he should receive the same punishment for a reckless act resulting in great bodily harm as he would for a reckless act resulting in death.
In support of this argument, Lafoe quotes comments from two sources. First, Lafoe quotes a passage from the Summary of Legislation, p. 126 (June 1992), which states:
"The crimes of battery and aggravated battery are expanded to include reckless acts. Previously, reckless acts causing bodily harm or great bodily harm were not adequately covered by law, e.g., drive by shootings into a house. Vehicular battery, under K.S.A. 21-3
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