Lesser Included Offenses an End to the Second Prong of the Fike Test
| Publication year | 1998 |
| Pages | 30 |
67 J. Kan. Bar Assn. November, 30 (1998). LESSER INCLUDED OFFENSES AN END TO THE SECOND PRONG OF THE FIKE TEST
November, 1998
Christy Molzen [FNa1]
Copyright (c) 1998 by the Kansas Bar Association; Christy Molzen
The 1998 Legislature passed amendments to K.S.A. 21-3107 and 22-3414, which change several aspects of lesser included offense law. Most importantly, the amendments eliminate the second prong of the Fike [FN1] test, resulting in a simple statutory elements test for determining lesser included offenses. The amendments also shift the trial court's absolute duty to instruct on any lesser included offense supported by the evidence. Under the new law, the parties must object to the giving or failure to give a lesser included offense instruction in order to preserve the issue for appeal.
*31 I. Background of problems in lesser included offense law
In 1993, in response to a letter from then District Judge David Knudson, the Kansas Judicial Council directed its Criminal Law Advisory Committee to study the area of lesser included offenses. [FN2] In his letter, Judge Knudson had expressed concern that K.S.A. 21-3107 placed an unfair burden on the trial court to instruct on lesser included offenses regardless of whether either party had requested such an instruction. As a result, a defendant could fail to request a lesser included offense instruction at the trial court level, whether intentionally or inadvertently, and then raise the issue of the failure to give the instruction on appeal and secure a reversal of the conviction and a new trial. [FN3]
Then, in 1995, the Kansas Court of Appeals decided State v. Horn. [FN4] In response to a letter from Rep. Michael O'Neal, R-Hutchinson, about that decision, [FN5] the Judicial Council directed the Criminal Law Committee to develop a statutory list of lesser included offenses. [FN6]
A. The Horn dilemma
In State v. Horn, [FN7] the defendant was charged with aggravated criminal sodomy. He requested and received a jury instruction on the perceived lesser included offense of aggravated sexual battery and was convicted of that crime. On appeal, the defendant reversed his position and argued that aggravated sexual battery was not a lesser included offense of aggravated criminal sodomy and that the trial court had erred in giving the instruction. [FN8]
The Kansas Court of Appeals agreed, ruling that aggravated sexual battery was not a lesser included offense of aggravated criminal sodomy. The Horn court held that the trial court lacked jurisdiction to convict the defendant of a crime that was not a lesser included offense of the crime charged and reversed the defendant's conviction. [FN9] Judge Gary Rulon, who wrote the Horn opinion, ended his analysis with a plea to the Legislature to clear up the confusion surrounding the lesser included offense area of the law by promulgating a statutory list of lesser included offenses. [FN10]
B. The Fike test
A major source of confusion in this area was the complicated two-prong test for determining when one crime is a lesser included offense of another. That test, set out in State v. Fike, [FN11] provided, "The first step is to determine whether the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged." Unfortunately, this fairly straightforward first prong of the test did not necessarily end the analysis. Even if a crime did not meet the "statutory elements" test, it might still be a lesser included offense under the second prong of the test:
"This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an 'included crime' under the definition in 21-3107(2)(d)." (Emphasis in original.) [FN12]
C. Conflicting and confusing court of appeals opinions
It was the application of this second prong of the Fike test that proved difficult and confusing, as demonstrated by the conflicting court of appeals opinions in State v. Ponds, [FN13] and State v. Rush. [FN14]
In Ponds, the defendant was convicted of aggravated burglary based upon his entry into the victim's residence through a locked front door. The defendant...
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