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State v. Jackson9/9/2005
jury instruction unless the facts of a particular case are unique and require modifying the pattern instruction. If the facts are unique, the court should not hesitate to add language or otherwise modify the pattern instruction. State v. Walker, 276 Kan. 939, Syl. 7, 80 P.3d 1132 (2003).
Jackson admits that the facts in this case are unique and the instruction did fairly and properly state the law. But, he argues that there was no evidence to support a finding of mere presence or mere association. He further argues the instruction misled the jury toward conviction because it precluded the jury from considering his dissociation from Clanton and Combs.
We find no merit in Jackson's argument. Withdrawal was not available as a defense to Jackson. Because Jackson's withdrawal theory was invalid as a matter of law, the court did not err in the language of the instruction.
Kansas Jurisdiction
Next, Jackson asserts the trial court improperly instructed the jury regarding the jurisdiction of Kansas to prosecute him. The trial court gave the following instructions for Kansas jurisdiction:
"Instruction No. 19
"The place where the conspiracy was formed is immaterial if at least one of the overt acts alleged and proved took place within the State where the defendant is tried."
"Instruction No. 20
"A person is subject to prosecution and punishment under the law of this state if he commits a crime wholly or partly within this state.
"An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.
"It is not a defense that the defendant's conduct is also a crime under the laws of another state or of the United States or of another country."
Jackson's argument as to these instructions is the same argument he raised earlier when he claimed that Kansas did not have jurisdiction to prosecute him because he did not enter into or commit any acts in Kansas. Jurisdiction is a question of law to be decided by the court, not the jury. See State v. James, 276 Kan. 737, 744-45, 79 P.3d 169 (2003). We have already resolved the issue of jurisdiction against Jackson. We find no merit in his argument that the jury instructions misled the jury regarding the criminal jurisdiction of Kansas under K.S.A. 21-3104.
Felony-Murder Instruction
Finally, Jackson argues the trial court should have instructed the jury on felony murder and attempted murder as lesser included offenses to first-degree, premeditated murder. Jackson requested the instructions, so we must analyze this issue in a light most favorable to Jackson. See Scott, 250 Kan. at 358.
"A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial did not exclude a theory of guilt on the lesser offense. [Citation omitted.]" State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999).
K.S.A. 2003 Supp. 21-3107(2) defines a lesser included offense as
"(a) A lesser degree of the same crime;
"(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
"(c) an attempt to commit the crime charged; or
"(d) an a
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