KANSAS OFFICE of
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21-3107.

History: L. 1969, ch. 180, § 21-3107; L. 1974, ch. 146, § 1; L. 1983, ch. 107, § 1; L. 1998, ch. 185, § 1; Repealed, L. 2010, ch. 136, § 307; July 1, 2011.

Source or Prior Law:

21-102, 62-1022, 62-1023, 62-1024.

Law Review and Bar Journal References:

"The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108," Raymond L. Spring, 9 W.L.J. 179, 185 (1970).

"The Doctrine of Lesser Included Offenses in Kansas," Kay Adam, Helen Packard Dupre, 15 W.L.J. 40, 41, 42, 43, 49, 50, 55, 62 (1976).

"Criminal Law: Reckless Driving Is Not a Lesser Included Offense of Driving While Under the Influence of Alcohol," Katy Streepy Nitcher, 23 W.L.J. 421, 424, 428, 429 (1984).

"Survey of Kansas Law: Criminal Law," Robert A. Wason, 32 K.L.R. 395, 399, 400 (1984).

"Criminal Law: Multiplicity and the Independence of Aggravated Sexual Battery Under KAN. STAT. ANN. § 21-3107(2) [State v. Mason, 827 P.2d 748 (Kan. 1992)]," Lance Thaxton, 32 W.L.J. 290, 295, 297, 299 (1993).

"Kansas State Court Appellate Standards of Review: An Understanding Unblinded," Robert W. Parnacott, 62 J.K.B.A. No. 10, 34, 40 (1993).

"Simplifying the Issue?: State v. Fike and the Doctrine of Lesser Included Offenses in Kansas," Jason King, 45 K.L.R. 1463 (1997).

"Lesser included offenses: An end to the second prong of the Fike test," Christy Molzen, 67 J.K.B.A. No. 9, 30 (1998).

Criminal Procedure Edition, 47 K.L.R. 937 (1999).

"Criminal Procedure Survey of Cases," 48 K.L.R. 895 (2000).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"Criminal Procedure Survey of Recent Cases, Kansas Issue," 52 K.L.R. 771 (2004).

"Criminal Procedure Survey, 55 K.L.R. 797 (2007).

"Relating Kansas Offenses," Tom Stacy, 56 K.L.R. 831 (2008).

CASE ANNOTATIONS

1. Subsection (3) controls over K.S.A. 22-3414 (3); error in failure to instruct on lesser included offense of battery; aggravated battery conviction reversed. State v. Warbritton, 211 Kan. 506, 508, 506 P.2d 1152.

2. Possession of burglary tools and attempted burglary separate and distinct offenses; convictions upheld. State v. Cory, 211 Kan. 528, 529, 531, 506 P.2d 1115.

3. Convictions on two counts set aside; arose from same conduct and were duplicitous. Jarrell v. State, 212 Kan. 171, 173, 510 P.2d 127.

4. Subsection (3) mentioned; refusal to allow voluntary manslaughter instruction in second degree murder case not improper in light of evidence. State v. Stafford, 213 Kan. 152, 165, 515 P.2d 769. Opinion modified and rehearing denied: 213 Kan. 585, 518 P.2d 136.

5. Error not to instruct jury of lesser included offense in theft prosecution where competent evidence of petty theft existed. State v. Green, 213 Kan. 547, 548, 550, 516 P.2d 926.

6. Refusal to instruct on lesser included offenses in prosecution for felony murder upheld; rule stated. State v. Reed, 214 Kan. 562, 520 P.2d 1314.

7. Conviction of aggravated robbery and assault; instructions hereunder proper; record reviewed; no error. State v. Hollaway, 214 Kan. 636, 640, 522 P.2d 364.

8. Possession of marijuana is not lesser included offense of unlawful selling of marijuana. State v. Woods, 214 Kan. 739, 742, 743, 522 P.2d 967.

9. Applied; court's failure to instruct on lesser included crimes error. State v. Clark, 214 Kan. 293, 297, 521 P.2d 298. Modified and corrected: 215 Kan. 1, 2, 522 P.2d 411.

10. Applied; conviction under K.S.A. 21-3402; no error in refusal to instruct on involuntary manslaughter. State v. Wilson, 215 Kan. 437, 440, 524 P.2d 224.

11. Paragraph (3) applied; conviction for robbery; failure to instruct on lesser offense did not constitute prejudicial error. State v. Harris, 215 Kan. 961, 962, 529 P.2d 101.

12. Referred to; failure to instruct under K.S.A. 21-3705 in prosecution for forgery not error. State v. Giddings, 216 Kan. 14, 24, 25, 531 P.2d 445.

13. Conviction of rape and assault and battery; offenses committed separately and at different times; not lesser included offenses. State v. James, 216 Kan. 235, 239, 531 P.2d 70.

14. Subsection (3) construed; failure to instruct jury on lesser included offense of murder in the second degree and voluntary manslaughter reversible error. State v. Boyd, 216 Kan. 373, 376, 532 P.2d 1064.

15. Failure to instruct on lesser included offense not erroneous; evidence indicated commission of aggravated robbery. State v. Johnson, 216 Kan. 445, 450, 532 P.2d 1325.

16. Rape is not a lesser included offense of aggravated kidnapping. Wisner v. State, 216 Kan. 523, 524, 525, 532 P.2d 1051.

17. Failure to instruct on lesser included offenses did not constitute error where evidence negatived lesser degree of guilt. State v. Cameron & Bentley, 216 Kan. 644, 651, 533 P.2d 1255.

18. Possession of marijuana not lesser included offense in prosecution for unlawful sale. State v. Humphrey, 217 Kan. 352, 364, 537 P.2d 155.

19. Paragraph (3) applied; murder prosecution; error in failure to instruct on involuntary manslaughter; new trial ordered. State v. Childers, 217 Kan. 410, 415, 417, 536 P.2d 1349.

20. Paragraph (2) applied; in murder prosecution, instruction on manslaughter proper; instruction erroneously given. State v. Gregory, 218 Kan. 180, 182, 183, 542 P.2d 1051.

21. Paragraph (3) applied; no instruction on lesser offense required by evidence; murder and robbery prosecution. State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952.

22. Not necessary that instruction be clearly erroneous for a non-objecting party to raise issue on appeal. State v. Arney, 218 Kan. 369, 374, 544 P.2d 334.

23. No instruction on lesser offense necessary where no evidence presented that could lead to conviction of such offense. State v. Ponds and Garrett, 218 Kan. 416, 420, 543 P.2d 967.

24. Instructions on felony murder as well as murder in second degree held not error under evidence. State v. Bradford, 219 Kan. 336, 341, 548 P.2d 812.

25. Failure to instruct on delivery of controlled substances where charged with intent to sell held not error. State v. Evans, 219 Kan. 515, 517, 548 P.2d 772.

26. Instruction on lesser included offense necessary only where some evidence of lesser crime. State v. Gander, 220 Kan. 88, 89, 551 P.2d 797.

27. Referred to; failure to instruct on value of property in theft prosecution not fatal. State v. Nesmith, 220 Kan. 146, 151, 551 P.2d 896.

28. Duty to instruct on lesser offense only where evidence would reasonably warrant conviction. State v. Huff, 220 Kan. 162, 167, 551 P.2d 880.

29. Trial court did not err in refusal to instruct on lesser included offense; felony murder conviction affirmed. State v. Goodseal, 220 Kan. 487, 488, 501, 553 P.2d 279. Overruled as to collateral felony: State v. Underwood, 228 Kan. 294, 615 P.2d 153.

30. Instructions not required on lesser offenses; prosecution for aggravated assault and aggravated burglary. State v. Williams, 220 Kan. 610, 556 P.2d 184.

31. Conviction of aggravated sodomy; court did not err in failing to instruct on lesser offense. State v. Yates, 220 Kan. 635, 638, 556 P.2d 176.

32. Failure to instruct on lesser included offense error; prosecution for aggravated assault. State v. Werkowski, 220 Kan. 648, 652, 556 P.2d 420.

33. Applied; conviction of murder in first degree reversed. State v. Johnson, 220 Kan. 720, 723, 556 P.2d 168.

34. Evidence negated lesser degree of guilt; instructions thereon not required. Green v. State, 221 Kan. 75, 77, 558 P.2d 110.

35. Refusing to instruct on delivery of marijuana as lesser included offense in prosecution for unlawful sale not error. State v. Griffin, 221 Kan. 83, 85, 558 P.2d 90.

36. Failure to instruct on assault, under evidence, not required in prosecution for aggravated battery. State v. Buckner, 221 Kan. 117, 121, 558 P.2d 1102.

37. Failure to instruct on battery and criminal injury to persons in prosecutions for aggravated battery and aggravated weapons violation not error. State v. Wright, 221 Kan. 132, 136, 557 P.2d 1267.

38. Applied; failure to instruct on involuntary manslaughter in prosecution for second degree murder reversible error. State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869.

39. Trial court's duty to instruct on lesser offense only where evidence upon which accused might reasonably be convicted; failure to instruct upheld. State v. Franklin, 221 Kan. 739, 743, 561 P.2d 860.

40. Prosecution for murder; under facts, court did not err in refusing to instruct on either voluntary or involuntary manslaughter. State v. Burrow & Dohlmar, 221 Kan. 745, 748, 561 P.2d 864.

41. Conviction based on a jury instruction as to a crime held to be unconstitutionally vague cannot stand. State v. Woods, 222 Kan. 179, 186, 563 P.2d 1061.

42. Applied in upholding conviction under K.S.A. 8-1567; instruction on lesser offense not required. State v. Hall, 1 Kan. App. 2d 730, 731, 573 P.2d 635.

43. Section cited; trial court did not err in failing to instruct on lesser included offenses of crime charged (K.S.A. 21-4204). State v. Hoskins, 222 Kan. 436, 439, 565 P.2d 608.

44. Section applied; trial court did not commit reversible error. State v. Green, 222 Kan. 729, 731, 732, 567 P.2d 893.

45. Conviction of aggravated battery and other crimes upheld; instructions sufficient. State v. Bailey, 223 Kan. 178, 183, 573 P.2d 590.

46. Aggravated battery not a lesser included offense of crime of attempted murder; conviction reversed. State v. Daniels, 223 Kan. 266, 269, 271, 573 P.2d 607.

47. Conviction of attempted rape reversed; failure to instruct on lesser offense of battery. State v. Arnold, 1 Kan. App. 2d 642, 644, 646, 573 P.2d 1087. Reversed: 223 Kan. 715, 716, 717.

48. Prosecution for murder; court did not err in refusing instructions on involuntary manslaughter. State v. Cates, 223 Kan. 724, 727, 576 P.2d 657.

49. Instruction of lesser included offense mandatory if evidence to support conviction introduced. State v. Sullivan, 224 Kan. 110, 120, 578 P.2d 1108.

50. Section mentioned; refusal to allow voluntary manslaughter instruction in second degree murder case not improper in light of evidence. State v. Sanders, 224 Kan. 138, 141, 578 P.2d 702.

51. Conduct of defendant constitutes single transaction resulting in multiple violations of code; subsection (2)(d) severally prosecuted; convictions affirmed. State v. Pencek, 224 Kan. 725, 728, 730, 585 P.2d 1052.

52. Duty to instruct on lesser offenses even though not requested nor objected to. State v. White & Stewart, 225 Kan. 87, 97, 587 P.2d 1259.

53. Subsection (2)(d) applicable in case of K.S.A. 21-3413 and 21-3415. State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027.

54. Aggravated sodomy and rape prosecution; no error in failure to instruct on sodomy and patronizing a prostitute. State v. Blue, 225 Kan. 576, 580, 592 P.2d 897.

55. Conviction of aggravated robbery; use of dangerous weapons not disputed; no error in refusal to instruct on lesser included offense of simple robbery. State v. Taylor, 225 Kan. 788, 793, 594 P.2d 211.

56. No evidence shown on which defendant might have been convicted of lesser offense; aggravated battery conviction affirmed. State v. Davis, 2 Kan. App. 2d 698, 703, 587 P.2d 3.

57. Instructions on lesser included offense required hereunder necessitated by evidence; wording of instruction not inaccurate or misleading. State v. Satterfield, 3 Kan. App. 2d 212, 221, 592 P.2d 135.

58. Lewd and lascivious behavior not lesser degree of aggravated sodomy or indecent liberties with a child; conviction affirmed. State v. Gregg, 226 Kan. 481, 482, 602 P.2d 85.

59. Evidence did not require instructions on lesser degrees of crime. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344.

60. Subsection (3) applied; no evidence to support giving of instruction on lesser charge. State v. Prince, 227 Kan. 137, 140, 605 P.2d 563.

61. Included offenses; possession of cocaine with intent to sell and mere possession are merged with sale of cocaine when solely incidental thereto. State v. Hagan, 3 Kan. App. 2d 558, 559, 560, 561, 598 P.2d 550.

62. Cited in construing and applying Kansas double jeopardy law; prosecution based on acts proved in former prosecution barred under K.S.A. 21-3108(2)(a). In re Berkowitz, 3 Kan. App. 2d 726, 744, 602 P.2d 99.

63. Robbery conviction reversed; failure to instruct on lesser included offense of theft even though instruction not requested. State v. Antwine, 4 Kan. App. 2d 389, 397, 607 P.2d 519.

64. Felony theft conviction upheld; unlawful deprivation of property not lesser included offense of theft. State v. Burnett, 4 Kan. App. 2d 412, 414, 415, 607 P.2d 88.

65. Simple possession of heroin not a lesser included offense of possession with intent to sell; provisions hereunder not applicable. State v. Brown, 5 Kan. App. 2d 149, 150, 151, 613 P.2d 387.

66. Not error to refuse instruction on offense not charged with and is not lesser included offense of the crimes of which charged. State v. Weigel, 228 Kan. 194, 198, 612 P.2d 636.

67. When murder is committed during commission of felony, rule requiring instructions on lesser included offenses not applicable. State v. Purdy, 228 Kan. 264, 272, 615 P.2d 131.

68. Statements of prosecution in closing argument do not require reversal of conviction of indecent liberties with a child. State v. Gilley, 5 Kan. App. 2d 321, 324, 325, 615 P.2d 827.

69. Fleeing or attempting to elude a police officer is not a lesser included offense of aggravated assault on a law enforcement officer; judgment reversed. State v. Russell, 229 Kan. 124, 125, 622 P.2d 658.

70. Duty to instruct on lesser included offenses arises only when there is evidence under which defendant might reasonably have been convicted thereof. State v. Everson, 229 Kan. 542, 626 P.2d 1189.

71. Involuntary manslaughter is an "included crime" as a lesser degree of voluntary manslaughter. State v. Williams, 6 Kan. App. 2d 833, 835, 836, 837, 635 P.2d 1274 (1981).

72. Conviction of aggravated robbery; jury instruction for simple robbery not required when evidence is uncontroverted that robbery accomplished with gun. State v. Johnson & Underwood, 230 Kan. 309, 310, 634 P.2d 1095 (1981).

73. No error in refusing to instruct on a lesser included offense when not supported by evidence; conviction of second degree murder affirmed. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981).

74. Disorderly conduct, K.S.A. 21-4101, not lesser included offense in prosecution for obstructing legal process, K.S.A. 21-3808. State v. Carpenter, 231 Kan. 235, 241, 242, 642 P.2d 998 (1982).

75. Applied in vacating sentence of lesser included offense arising from single offense. City of Overland Park v. Estell, 8 Kan. App. 2d 182, 185, 653 P.2d 819 (1982).

76. No error in refusing instruction on attempted kidnapping; no distance required to constitute a taking. State v. Mahlandt, 231 Kan. 665, 671, 647 P.2d 1307 (1982).

77. No error in refusal to instruct on indecent liberties where rape victim's age prevented consent. State v. Lilley, 231 Kan. 694, 696, 647 P.2d 1323 (1982).

78. Trial court erred in refusing to instruct on unlawful restraint as a lesser included offense of kidnapping. State v. Carter, 232 Kan. 124, 125, 652 P.2d 694 (1982).

79. No instruction on attempt required where crime charged is completed. State v. Grauerholz, 232 Kan. 221, 230, 654 P.2d 395 (1982).

80. Battery or aggravated battery not lesser included crimes of robbery or aggravated robbery; instruction not required thereon. State v. Warwick, 232 Kan. 232, 235, 654 P.2d 403 (1982).

81. Duty to instruct on lesser included offenses arises only where defendant might reasonably be convicted of lesser offense. State v. Hutton, 232 Kan. 545, 552, 657 P.2d 567 (1983).

82. Crime of indecent liberties with a child held to be a lesser included offense of rape; conviction of lesser offense set aside. State v. Coberly, 233 Kan. 100, 107, 108, 661 P.2d 383 (1983).

83. Test for giving lesser included offense instruction is not whether person could be found guilty or innocent, but whether sufficient evidence exists to support giving such instruction. State v. Garcia, 233 Kan. 589, 608, 664 P.2d 1343 (1983).

84. Reckless driving not lesser included offense for driving under influence of alcohol or drugs. State v. Mourning, 233 Kan. 678, 680, 682, 664 P.2d 857 (1983).

85. Duty to instruct on lesser crimes arises only when evidence adduced might reasonably convict defendant. State v. Crispin, 234 Kan. 104, 109, 671 P.2d 502 (1983).

86. Instruction on lesser included crime of robbery unnecessary where all witnesses testified robber had gun. State v. Mitchell, 234 Kan. 185, 189, 672 P.2d 1 (1983).

87. Where evidence of bodily harm exists, instruction on lesser crime of simple kidnapping unnecessary. State v. Chatmon, 234 Kan. 197, 200, 671 P.2d 531 (1983).

88. Instruction on lesser offense of kidnapping arises only where evidence that defendant might reasonably be convicted. State v. Royal, 234 Kan. 218, 221, 670 P.2d 1337 (1983).

89. State cannot appeal dismissal of some counts of multiple count complaint, information or indictment while other counts still pending. State v. Freeman, 234 Kan. 278, 279, 670 P.2d 1365 (1983).

90. Cited in holding state has no right to appeal partial dismissal of complaint while remainder pending. State v. Bickford, 234 Kan. 507, 510, 672 P.2d 607 (1983).

91. Theft is lesser degree of crime of robbery; instruction on lesser degree considered. State v. Long, 234 Kan. 580, 587, 591, 675 P.2d 832 (1984).

92. Where defendant denied perpetration of crime, instruction on lesser offense unnecessary when unsupported by evidence. State v. Pearson, 234 Kan. 906, 918, 919, 678 P.2d 605 (1984).

93. The test if a single transaction constitutes multiple offenses is whether same evidence sustains each charge; plea to lesser charge no bar to trial on remaining counts. State v. Freeman, 236 Kan. 274, 281, 288, 689 P.2d 885 (1984).

94. Innate peculiarities of defendant not considered in determining provocation to support instruction on voluntary manslaughter. State v. Guebara, 236 Kan. 791, 795, 799, 696 P.2d 381 (1985).

95. Where no evidence supported instructions on lesser included offenses, court was correct in not giving them. State v. Yarrington, 238 Kan. 141, 143, 708 P.2d 524 (1985).

96. Cited; unlawful deprivation (K.S.A. 21-3705) as lesser included offense of theft (K.S.A. 21-3701); instruction required only when evidence presented. State v. Keeler, 238 Kan. 356, 364, 365, 710 P.2d 1279 (1985).

97. Cited; sexual battery (K.S.A. 21-3517) and aggravated sexual battery (K.S.A. 21-3518) ruled not lesser included offenses of rape. State v. Galloway, 238 Kan. 415, 417, 418, 710 P.2d 1320 (1985).

98. Crimes of forgery and altering forged instrument (K.S.A. 21-3710) separate and distinct offenses; charges from same act not multiplicious. State v. Hicks, 11 Kan. App. 2d 76, 79, 80, 714 P.2d 105 (1986).

99. Where only evidence of felony theft (K.S.A. 21-3701) presented at trial, no instruction on lesser included offense required. State v. Parsons, 11 Kan. App. 2d 220, 720 P.2d 671 (1986).

100. No conviction for two or more separate crimes if one is either a lesser included offense or a crime necessarily proved by proof of another crime. State v. Brewer, 11 Kan. App. 2d 655, 661, 662, 663, 664, 731 P.2d 780 (1987).

101. Driving while under the influence of alcohol (K.S.A. 8-1567) is lesser included offense of aggravated vehicular homicide (K.S.A. 21-3405a). State v. Woodman, 12 Kan. App. 2d 110, 118, 119, 735 P.2d 1102 (1987).

102. Cited; no duty to instruct on lesser included homicide offense where entire defense based on nonparticipation. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249 (1987).

103. Cited; aggravated sexual battery (K.S.A. 21-3518) as lesser included offense of prior K.S.A. 21-3504 examined. State v. Ramos, 240 Kan. 485, 487, 731 P.2d 837 (1987).

104. Court did not err by refusing instruction on lesser included offense when there was no evidence to support charge of such offense. State v. Bishop, 240 Kan. 647, 654, 732 P.2d 765 (1987).

105. Charges of aggravated robbery and aggravated burglary arising in single transaction are not multiplicious under facts of case. State v. Holcomb, 240 Kan. 715, 717, 718, 732 P.2d 1272 (1987).

106. Cited; aggravated battery and attempted murder charges arising from simultaneous acts as multiplicious, noted. State v. Cathey, 241 Kan. 715, 718, 741 P.2d 738 (1987).

107. Cited; charges of battery against law enforcement officer (K.S.A. 21-3413) and obstructing legal duty (K.S.A. 21-3808) not multiplicious. State v. Frazier, 12 Kan. App. 2d 164, 167, 736 P.2d 956 (1987).

108. Cited; aggravated sexual battery (K.S.A. 21-3518) not lesser included offense of indecent liberties (K.S.A. 21-3503). State v. Fulcher, 12 Kan. App. 2d 169, 170, 737 P.2d 61 (1987).

109. Duty to instruct on lesser included offense only arises when evidence may reasonably convict defendant. State v. Adams, 12 Kan. App. 2d 191, 192, 193, 737 P.2d 876 (1987).

110. Aggravated assault (K.S.A. 21-3410) not lesser included offense of attempted (K.S.A. 21-3301) second degree murder (K.S.A. 21-3402). State v. Daniels, 12 Kan. App. 2d 479, 484, 753 P.2d 300 (1987).

111. Aggravated incest (K.S.A. 21-3603) not lesser included offense of rape (K.S.A. 21-3502); other lesser included offense issues noted. State v. Moore, 242 Kan. 1, 3, 7, 748 P.2d 833 (1987).

112. DUI (K.S.A. 8-1567) held lesser included offense of involuntary manslaughter (K.S.A. 21-3404) when found as underlying misdemeanor. State v. Adams, 242 Kan. 20, 26, 744 P.2d 833 (1987).

113. Cited; aggravated sexual battery (K.S.A. 21-3518) as lesser included offense of indecent liberties with child (K.S.A. 21-3503) examined. State v. Hutchcraft, 242 Kan. 55, 62, 744 P.2d 849 (1987).

114. Cited; when court has affirmative duty to instruct on lesser included offenses examined. State v. Hill. 242 Kan. 68, 744 P.2d 1228 (1987).

115. Cited; when court has affirmative duty to instruct on lesser included offenses examined. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).

116. Cited; necessity for instructions on lesser included offenses examined. State v. Shehan, 242 Kan. 127, 132, 744 P.2d 824 (1987).

117. Cited; comparison of crimes of rape (K.S.A. 21-3502) and indecent liberties (K.S.A. 21-3503) examined. State v. Helms, 242 Kan. 511, 748 P.2d 425 (1988).

118. Aggravated battery (K.S.A. 21-3414) and aggravated robbery (K.S.A. 21-3427) not multiplicious; defendant may be convicted for both for same underlying transaction. State v. Higgins, 243 Kan. 48, 54, 755 P.2d 12 (1988).

119. Cited; at second-degree murder trial (K.S.A. 21-3402), instructions on voluntary manslaughter (K.S.A. 21-3403) and self-defense (K.S.A. 21-3211), but not involuntary manslaughter (K.S.A. 21-3404) examined. State v. Griblin, 12 Kan. App. 2d 677, 753 P.2d 843 (1988).

120. Cited; K.S.A. 60-1507 question on jurisdiction to convict of aggravated sexual battery (K.S.A. 21-3518) on information charging rape (K.S.A. 21-3502) examined. Patterson v. State, 12 Kan. App. 2d 731, 732, 754 P.2d 1207 (1988).

121. Cited; DUI (K.S.A. 8-1567) as lesser included offense of aggravated vehicular homicide (K.S.A. 21-3405a), conviction of both as multiplicitous examined. State v. Hickey, 12 Kan. App. 2d 781, 786, 787, 757 P.2d 735 (1988).

122. Cited; elements necessary for instructions on lesser included offenses of aggravated kidnapping (K.S.A. 21-3421) and aggravated robbery (K.S.A. 21-3427) examined. State v. Patterson, 243 Kan. 262, 266, 755 P.2d 551 (1988).

123. Cited; two-pronged test to determine whether lesser crime is lesser included offense examined. State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988).

124. Convictions for felony murder, aggravated kidnapping and aggravated robbery as not violating double jeopardy examined. State v. Dunn, 243 Kan. 414, 432, 758 P.2d 718 (1988).

125. Cited; doctrine of merger examined; convictions of felony murder (K.S.A. 21-3401) and child abuse (K.S.A. 21-3609) reversed. State v. Lucas, 243 Kan. 462, 469, 759 P.2d 90 (1988).

126. Question of when trial court has duty to instruct on lesser included offense examined. State v. Dorsey, 13 Kan. App. 2d 286, 290, 769 P.2d 38 (1989).

127. Duty to instruct on lesser included offenses, charges not constituting lesser included offenses examined. State v. Prouse, 244 Kan. 292, 299, 767 P.2d 1308 (1989).

128. Court's affirmative duty to instruct on lesser included offenses when supported by evidence examined. State v. Colbert, 244 Kan. 422, 427, 769 P.2d 1168 (1989).

129. Definition of lesser included crime noted; child abuse (K.S.A. 21-3609) and aggravated battery (K.S.A. 21-3414) as separate crimes determined. State v. Young, 14 Kan. App. 2d 21, 26, 29, 784 P.2d 366 (1989).

130. Circumstances finding aggravated battery (K.S.A. 21-3414) and first degree murder (K.S.A. 21-3401) as multiplicitous examined. State v. Smith, 245 Kan. 381, 390, 781 P.2d 666 (1989).

131. Evidence sufficient to instruct on lesser included count of attempted (K.S.A. 21-3301) rape (K.S.A. 21-3501, 21-3502) examined. State v. Hammon, 245 Kan. 450, 453, 781 P.2d 1063 (1989).

132. Instruction on lesser included offense of involuntary manslaughter (K.S.A. 21-3404) not required where defendant willingly entered into mutual combat. State v. Meyers, 245 Kan. 471, 474, 781 P.2d 700 (1989).

133. Involuntary manslaughter as not lesser included crime of aiding and abetting second degree murder noted; two-pronged test hereunder examined. State v. Burgess, 245 Kan. 481, 485, 781 P.2d 694 (1989).

134. Aggravated sexual battery (K.S.A. 21-3518) not included crime of aggravated criminal sodomy (K.S.A. 21-3506) or indecent liberties with child (K.S.A. 21-3503). State v. Damewood, 245 Kan. 676, 686, 783 P.2d 1249 (1989).

135. Conviction of both underlying felony and felony murder as not double jeopardy examined. State v. Gonzales, 245 Kan. 691, 706, 783 P.2d 1239 (1989).

136. Aggravated sexual battery (K.S.A. 21-3518) not lesser included crime of rape (K.S.A. 21-3502); holdings to the contrary disapproved. State v. Gibson, 246 Kan. 298, 787 P.2d 1176 (1990).

137. Meaning of K.S.A. 38-1652 regarding hearings for juvenile offenders examined. Stauffer Communications, Inc. v. Mitchell, 246 Kan. 492, 494, 789 P.2d 1153 (1990).

138. Possession of methamphetamine with intent to sell (K.S.A. 65-4127b) not included crime under conspiracy (K.S.A. 21-3302) to sell. State v. Matson, 14 Kan. App. 2d 632, 634, 798 P.2d 448 (1990).

139. Evidence sufficient to require instruction on lesser included offense examined. State v. Stallings, 246 Kan. 642, 648, 792 P.2d 1013 (1990).

140. Unlawful deprivation of property instruction unnecessary absent sufficient evidence where theft (K.S.A. 21-3701) charged. State v. Hall, 246 Kan. 728, 749, 793 P.2d 737 (1990).

141. When instruction necessary on involuntary manslaughter as lesser included offense of first degree murder examined. State v. Burnison, 247 Kan. 19, 27, 795 P.2d 32 (1990).

142. When duty arises to instruct on lesser included offense stated. State v. Crawford, 247 Kan. 223, 226, 795 P.2d 401 (1990).

143. Refusal to instruct on lesser included offenses in felony murder (K.S.A. 21-3401) trial examined. State v. Bailey, 247 Kan. 330, 338, 799 P.2d 977 (1990).

144. When instruction on lesser included offense in murder trial required examined. State v. Gadelkarim, 247 Kan. 505, 510, 802 P.2d 507 (1990).

145. Evidence needed to justify instruction on voluntary manslaughter in murder trial examined. State v. Hamons, 248 Kan. 51, 63, 805 P.2d 6 (1991).

146. Evidence sufficient to impose duty to instruct on lesser included offense examined. State v. Sutherland, 248 Kan. 96, 101, 804 P.2d 970 (1991).

147. Although no evidence supporting instruction for lesser included offense shown, jury given option to find lesser offense. State v. Owens, 248 Kan. 273, 284, 285, 807 P.2d 101 (1991).

148. Before instructions on lesser included offenses required, there must be positive testimony by defense to prove version of homicide contrary to state's. State v. Mayberry, 248 Kan. 369, 385, 807 P.2d 86 (1991).

149. When jury instructions on lesser included offenses required in child abuse-felony murder trial examined. State v. Hupp, 248 Kan. 644, 650, 809 P.2d 1207 (1991).

150. Instruction on lesser included offense not required if from evidence jury could not reasonably convict. State v. Perkins, 248 Kan. 760, 772, 811 P.2d 1142 (1991).

151. Evidence required for instructions on lesser degrees of homicide and aggravated battery as lesser offense of attempted first-degree murder examined. State v. Dixon, 248 Kan. 776, 781, 811 P.2d 1153 (1991).

152. Possession of controlled substance without affixing stamps (K.S.A. 79-5208) is distinct from mere possession (K.S.A. 65-4127b); neither is included offense of other. State v. Berberich, 248 Kan. 854, 862, 811 P.2d 1192 (1991).

153. Cited in reviewing duty of trial court to instruct on lesser included offenses. State v. Wilburn, 249 Kan. 678, 687, 822 P.2d 609 (1991).

154. Convictions for delivery of forged instrument and theft by deception multiplicitous under facts of case. State v. Perry, 16 Kan. App. 2d 150, 152, 154, 823 P.2d 804 (1991).

155. Cited in holding that criminal solicitation and aiding and abetting are separate offenses; convictions not violative of double jeopardy clause or concept of multiplicity. State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).

156. Aggravated sexual battery not lesser included crime of aggravated kidnapping, aggravated sodomy or attempted rape and not multiplicitous hereunder. State v. Mason, 250 Kan. 393, 399, 400, 401, 405, 407, 827 P.2d 748 (1992).

157. Theft of lost or mislaid property is lesser included offense of theft. State v. Getz, 250 Kan. 560, 564, 830 P.2d 5 (1992).

158. Discussion of test to apply to determine if lesser crime is a lesser included offense. State v. Allison, 16 Kan. App. 2d 321, 323, 823 P.2d 213 (1992).

159. Battery is a lesser included offense to aggravated robbery based on proof of facts alleged in complaint. State v. Hill, 16 Kan. App. 2d 432, 433, 825 P.2d 1141 (1992).

160. Circumstances not warranting an instruction on a lesser included offense examined. State v. Evans, 251 Kan. 132, 138, 834 P.2d 335 (1992).

161. Court's refusal to instruct on lesser included offenses of premeditated murder examined. State v. Bailey, 251 Kan. 156, 165, 834 P.2d 342 (1992).

162. Factual circumstances examined in aggravated battery case where instruction on lesser included offense of battery not required. State v. Deggs, 251 Kan. 342, 344, 834 P.2d 376 (1992).

163. When court has affirmative duty to instruct on lesser included offenses examined. State v. Hammond, 251 Kan. 501, 506, 837 P.2d 816 (1992).

164. Cited in opinion that single impulse rule (single larceny doctrine) not applicable to burglary of multiple vehicles. State v. McClanahan, 251 Kan. 533, 536, 538, 836 P.2d 1164 (1992).

165. Commission of substantive offense and a conspiracy to commit it are separate and distinct offenses. State v. Tyler, 251 Kan. 616, 637, 638, 840 P.2d 413 (1992).

166. Failure to request instructions on lesser offense and diminished capacity examined. State v. Perez, 251 Kan. 736, 742, 840 P.2d 1118 (1992).

167. Where court has duty to instruct on lesser offense because of sufficient evidence, request for instruction not required. State v. Linn, 251 Kan. 797, 805, 840 P.2d 1133 (1992).

168. Exclusion of testimony of defendant's expert witness resulting in absence of instruction on lesser included offense held error. State v. Humphrey, 252 Kan. 6, 22, 845 P.2d 592 (1992).

169. Attempted second-degree murder and attempted voluntary manslaughter noted as lesser included offenses of attempted first-degree murder. State v. Dixon, 252 Kan. 39, 41, 843 P.2d 172 (1992).

170. What circumstances justify refusal to instruct on lesser included offenses of premeditated murder examined. State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992).

171. Cited in determination that aggravated battery and aggravated robbery multiplicitous when same act of violence basis for each conviction. State v. Warren, 252 Kan. 169, 176, 843 P.2d 224 (1992).

172. When oral modification of original charge and submission of lesser included offense to jury does not constitute double jeopardy examined. State v. Josenberger, 17 Kan. App. 2d 167, 172, 836 P.2d 11 (1992).

173. Failure to instruct on attempted indecent liberties as lesser offense of attempted rape not error under facts herein. State v. Cahill, 252 Kan. 309, 312, 845 P.2d 624 (1993).

174. When instructions on lesser crimes required examined; attempted second-degree murder noted as lesser offense of attempted first-degree murder. State v. McBroom, 252 Kan. 376, 381, 845 P.2d 654 (1993).

175. Instruction on lesser included offense not required when evidence at trial excludes theory of guilt on lesser offense. State v. Tran, 252 Kan. 494, 506, 847 P.2d 680 (1993).

176. Trial court erred in not giving an instruction on battery as lesser included offense of aggravated battery; conviction reversed. State v. Clardy, 252 Kan. 541, 542, 543, 544, 547, 847 P.2d 694 (1993).

177. Duty to instruct jury on lesser included offense does not arise unless there is evidence supporting lesser offense. State v. Bowman, 252 Kan. 883, 891, 850 P.2d 236 (1993).

178. Criminal trespass lesser included offense of aggravated burglary pursuant to subsection (2)(d). State v. Ponds, 18 Kan. App. 2d 231, 234, 850 P.2d 280 (1993).

179. While possession of cocaine not lesser degree of possession with intent to sell, it is an included crime. State v. Tucker, 253 Kan. 38, 43, 853 P.2d 17 (1993).

180. Trial court's refusal to instruct on lesser included offenses discussed. State v. Coleman, 253 Kan. 335, 352, 856 P.2d 121 (1993).

181. Second degree murder and voluntary manslaughter are lesser included offenses of first degree murder. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993).

182. "Theft by threat" is lesser included offense of robbery. State v. Blockman, 19 Kan. App. 2d 56, 57, 863 P.2d 372 (1993).

183. Whether prosecution provoked defendant's requests for mistrial in first trial as bar to retrial on double jeopardy grounds examined. State v. Cady 254 Kan. 393, 397, 867 P.2d 270 (1994).

184. When defendant commits forcible intercourse with relative as section defines, state may charge aggravated incest, not rape. Carmichael v. State, 255 Kan. 10, 17, 872 P.2d 240 (1994).

185. Whether evidence supported instructing jury on robbery as lesser included offense of aggravated robbery examined. State v. Whitaker, 255 Kan. 118, 128, 872 P.2d 278 (1994).

186. Effect on sentencing when defendant convicted of greater offense where evidence supports only lesser offense examined. State v. Ferris, 19 Kan. App. 2d 180, 184, 865 P.2d 1058 (1994).

187. Whether trial court should have instructed on lesser offense examined. State v. Manzanares, 19 Kan. App. 2d 214, 218, 220, 866 P.2d 1083 (1994).

188. Whether criminal trespass is a lesser included offense of burglary; legislative history examined. State v. Rush, 255 Kan. 672, 674, 678, 877 P.2d 386 (1994).

189. Whether court erred by failing to instruct jury on attempted rape because penetration evidence disputed examined. State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261 (1994).

190. Whether criminal trespass is lessor included offense of aggravated burglary for jury instruction purposes examined. State v. Morris, 255 Kan. 964, 988, 880 P.2d 1244 (1994).

191. Whether evidence at trial excluded theory of guilt of lesser offense precluding lesser included offense instruction examined. State v. Davis, 256 Kan. 1, 22, 883 P.2d 735 (1994).

192. Whether court erred by failing to instruct jury on lesser included offenses of aggravated robbery examined. State v. Robinson, 256 Kan. 133, 168, 170, 883 P.2d 764 (1994).

193. Whether making a forged instrument (K.S.A. 21-3710a(1)) and delivering a forged instrument (K.S.A. 21-3710(a)(21)) are multiplicitous examined. State v. Utterback, 256 Kan. 340, 341, 886 P.2d 808 (1994).

194. Whether extortion is a lesser included offense of robbery examined. State v. Rader, 256 Kan. 364, 365, 885 P.2d 1222 (1994).

195. Whether court erred by failing to instruct on attempted simple burglary as a lesser included offense of attempted aggravated burglary examined. State v. Watson, 256 Kan. 396, 398, 885 P.2d 1226 (1994).

196. Whether theft by threat is a lesser included offense of robbery examined. State v. Marbley, 20 Kan. App. 2d 34, 39, 882 P.2d 1004 (1994).

197. Whether trial court erred in refusing to instruct jury on voluntary manslaughter as a lesser included offense of murder examined. State v. Bailey, 256 Kan. 872, 885, 889 P.2d 738 (1995).

198. Whether obtaining control over stolen property is a lesser included offense of aggravated robbery examined. State v. Lewis, 256 Kan. 929, 932, 889 P.2d 766 (1995).

199. Whether judge erred by failing to instruct jury on attempted second-degree murder as lesser included offense of attempted murder examined. State v. Gibbons, 256 Kan. 951, 956, 889 P.2d 772 (1995).

200. Whether court erred in failing to instruct on theft by threat as a lesser included offense of aggravated robbery examined. State v. McCloud, 257 Kan. 1, 15, 891 P.2d 324 (1995).

201. Whether court erred by denying proposed instruction on attempted involuntary manslaughter as a lesser included offense of attempted first degree murder examined. State v. Collins, 257 Kan. 408, 417, 893 P.2d 217 (1995).

202. Whether blood test results requested by defendant's physician in vehicular homicide case are subject to physician-patient privilege examined. State v. Mendoza,

203. Whether aggravated sexual battery is a lesser included offense of aggravated criminal sodomy examined. State v. Horn, 20 Kan. App. 2d 689, 692, 892 P.2d 513 (1995). 20 Kan. App. 2d 541, 546, 889 P.2d 1147 (1995).

204. Whether convictions of arson and conspiracy to commit arson are multiplicitous examined. State v. Eastridge, 20 Kan. App. 2d 973, 977, 894 P.2d 243 (1995).

205. Whether lesser severity levels of aggravated battery are included offenses or lesser included offenses of level 4 aggravated battery examined. State v. Ochoa, 20 Kan. App. 2d 1014, 1018, 895 P.2d 198 (1995).

206. Court's denial of proposed jury instruction on manslaughter as lesser included offense of felony murder upheld. State v. Arteaga, 257 Kan. 874, 889, 896 P.2d 1035 (1995).

207. State is not entitled to de novo preliminary hearing when magistrate dismisses criminal case for lack of probable cause. State v. Kleen, 257 Kan. 911, 912, 896 P.2d 376 (1995).

208. Trial court's failure to instruct jury on second-degree murder as a lesser included offense of first-degree murder held reversible error. State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995).

209. No error in trial court's refusal to instruct jury on lesser included offenses of first-degree murder. State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995).

210. No error in trial court's failure to instruct jury on attempted aggravated sodomy as a lesser included offense of aggravated sodomy. State v. Denney, 258 Kan. 437, 446, 905 P.2d 657 (1995).

211. No error in trial court's refusal to instruct on lesser included offenses of second-degree murder. State v. Cheeks, 258 Kan. 581, 589, 908 P.2d 175 (1995).

212. Under facts, solicitation to commit first-degree murder is not a lesser included offense of aiding and abetting first-degree murder. State v. DePriest, 258 Kan. 596, 603, 907 P.2d 868 (1995).

213. Defendant's double jeopardy rights violated by prosecutor's intentional conduct forcing defendant to request mistrial. State v. McClanahan, 259 Kan. 86, 101, 910 P.2d 193 (1996).

214. No error in denial of jury instruction on theft by possessing stolen property as a lesser included offense of felony murder. State v. Holt, 260 Kan. 33, 37, 917 P.2d 1332 (1996).

215. No error in trial court's failure to instruct jury on criminal solicitation as a lesser included offense of murder. State v. Webber, 260 Kan. 263, 280, 918 P.2d 609 (1996).

216. Objection by defendant to lesser included offense jury instruction waives objection for appeal purposes. State v. Coffman, 260 Kan. 811, 813, 925 P.2d 419 (1996).

217. Trial court's denial of jury instruction on reckless second-degree murder as a lesser included offense of first-degree murder upheld. State v. Pierce, 260 Kan. 859, 863, 927 P.2d 929 (1996).

218. Duty under subsection (3) applicable only when evidence introduced such that defendant might have reasonably been convicted of lesser offense. State v. Torrance, 22 Kan. App. 2d 721, 728, 922 P.2d 1109 (1996).

219. Multiplicitous charge claim without merit; same crime not punished more than once; multiplicity not a jurisdictional defect. State v. Esher, 22 Kan. App. 2d 779, 780, 781, 922 P.2d 1123 (1996).

220. Refusal of trial court to instruct jury on voluntary manslaughter in second-degree murder case upheld. State v. Pope, 23 Kan. App. 2d 69, 76, 927 P.2d 503 (1996).

221. Defendant was not entitled to reckless second-degree murder instruction in first-degree murder case. State v. Baacke, 261 Kan. 422, 435, 932 P.2d 396 (1997).

222. Aggravated indecent liberties with a child is a lesser included offense of rape. State v. Burns, 23 Kan. App. 2d 352, 358, 931 P.2d 1258 (1997).

223. Sentences for use of firearm in committing crime and for unlawful possession of firearm held not multiplicity. State v. Cashman, 23 Kan. App. 2d 580, 581, 932 P.2d 469 (1997).

224. Subsection (2)(d) and double jeopardy not violated by convictions of felony murder and underlying felonies. State v. Ninci, 262 Kan. 21, 55, 57, 936 P.2d 1364 (1997).

225. Defendant not entitled to lesser included offense of voluntary manslaughter; no evidence of provocation in record. State v. Moncla, 262 Kan. 58, 73, 936 P.2d 727 (1997).

226. Conviction affirmed; defendant not prejudiced by instruction on completely different crime with increased severity level. State v. Jackson, 262 Kan. 119, 142, 936 P.2d 761 (1997).

227. Trial court denial of jury instruction on lesser included offenses of murder upheld. State v. Follin, 263 Kan. 28, 33, 947 P.2d 8 (1997).

228. Convictions of ethnic intimidation and battery and disorderly conduct, included offenses in ethnic intimidation, are multiplicitous. City of Wichita v. Edwards, 23 Kan. App. 2d 962, 972, 939 P.2d 942 (1997).

229. Abuse of child and aggravated battery are separate crimes and a defendant may be convicted of both. State v. Riles, 24 Kan. App. 2d 827, 830, 956 P.2d 1346 (1998).

230. Conviction and imposition of consecutive sentences for felony murder and aggravated robbery does not constitute double jeopardy. State v. Mims, 264 Kan. 506, 516, 956 P.2d 1337 (1998).

231. Trial court refusal to instruct jury on felony murder as a lesser included offense of premeditated murder affirmed. State v. McKinney, 265 Kan. 104, 109, 961 P.2d 1 (1998).

232. Single continuing conspiracy cannot support multiple prosecutions; separate conspiracies must be based on more than one agreement. State v. Mincey, 265 Kan. 257, 260, 963 P.2d 403 (1998).

233. Trial court failure to instruct jury on aggravated battery as a lesser included offense of attempted homicide constituted reversible error. State v. Morfitt, 25 Kan. App. 2d 8, 15, 956 P.2d 719 (1998).

234. Trial court refusal to give jury instruction on disorderly conduct as a lesser included offense of criminal threat or battery upheld. State v. Butler, 25 Kan. App. 2d 35, 38, 956 P.2d 733 (1998).

235. When defendant charged in drive-by shooting may be convicted of aggravated assault and criminal discharge of firearm examined. State v. Taylor, 25 Kan. App. 2d 407, 410, 965 P.2d 834 (1998).

236. Refusal to instruct jury on simple possession as a lesser included offense of possession with intent to sell constituted reversible error. State v. Hutcherson, 25 Kan. App. 2d 501, 504, 968 P.2d 1109 (1998).

237. Premeditated ax murder case involved no supporting evidence necessitating voluntary manslaughter instruction. State v. Spry, 266 Kan. 523, 528, 973 P.2d 783 (1999).

238. Evidence of present crime introduced under K.S.A. 60-455 in prior prosecution; dismissal on double jeopardy grounds under K.S.A. 21-3108(2)(a) upheld. State v. Barnhart, 266 Kan. 541, 544, 972 P.2d 1106 (1999).

239. Convictions of felony murder and aggravated robbery not double jeopardy. State v. Manard, 267 Kan. 20, 36, 978 P.2d 253 (1999).

240. No double jeopardy violation where court declared mistrial but after conviction in second trial defendant claims mistrial in first trial should have been granted on other issues raised by defendant. State v. Williams, 268 Kan. 1, 7, 988 P.2d 722 (1999).

241. Under charge of attempted first-degree murder, court had duty to instruct on aggravated battery as a lesser included offense. State v. Williams, 268 Kan. 1, 19, 988 P.2d 722 (1999).

242. Trial court refusal to instruct jury on criminal restraint as a lesser included offense of kidnapping upheld. State v. Little, 26 Kan. App. 2d 713, 716, 994 P.2d 645 (1999).

243. Convictions of injury to a pregnant woman and aggravated battery held multiplicitous. State v. Thomas, 26 Kan. App. 2d 728, 733, 993 P.2d 1249 (1999).

244. Convictions for rape, aggravated indecent liberties with a child and aggravated indecent solicitation of a child are affirmed; charges are not multiplicitous. State v. Hill, 28 Kan. App. 2d 28, 11 P.3d 506 (2000).

245. Charges are multiplicitous where (1) same evidence is required to prove both crimes and (2) one offense is an included offense of the other. State v. Garcia, 272 Kan. 140, 32 P.3d 188 (2001).

246. Aggravated indecent liberties with a child is not a lesser included offense of rape. State v. Clubb, 31 Kan. App. 2d 278, 62 P.3d 667 (2003).

247. No requirement for court to instruct on crime of criminal restraint where evidence supports specific intent crime of kidnapping not criminal restraint. State v. Wiggett, 273 Kan. 438, 44 P.3d 381 (2002).

248. Severity level 7 aggravated battery is lesser included offense of severity level 4 aggravated battery charge. State v. Winters, 276 Kan. 34, 72 P.3d 564 (2003).

249. Premeditated first-degree murder is lesser included offense of capital murder. State v. Martis, 277 Kan. 267, 83 P.3d 1216 (2004).

250. Charges for aggravated battery and aggravated robbery were multiplicitous. State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004).

251. Criminal threat conviction reversed; same evidence used in prosecution for domestic battery. State v. Potts, 34 Kan. App. 2d 329, 118 P.3d 692 (2005).

252. Possession of drug paraphernalia with intent to manufacture and possession of methamphetamine not lesser included offenses. State v. Unruh, 281 Kan. 520, 534, 133 P.3d 35 (2006).

253. Convictions of multiple drug violations arising from same course of conduct raised multiplicity, lesser included offenses and double jeopardy issues; analyses and tests applied. State v. Schoonover, 281 Kan. 453, 455, 457, 462, 475-478, 481-483, 485, 486, 491, 494-496, 498, 505, 133 P.3d 48 (2006).

254. Aggravated battery is not a lesser included crime of attempted first-degree murder. State v. Gaither, 283 Kan. 671, 692, 156 P.3d 602 (2007).

255. Former provisions of K.S.A. 21-3107 cited; no reason to instruct juries on every possible defense theory. State v. Sappington, 285 Kan. 158, 169 P.3d 1096 (2007).

256. Kansas legislature did not intend cumulative punishments for capital murder and first degree premeditated murder. State v. Scott, 286 Kan. 54, 66, 183 P.3d 801 (2008).

257. Cited; no error in not giving instruction on lesser included offense. State v. Gallegos, 286 Kan. 869, 873, 874, 190 P.3d 226 (2008).

258. Cited; identical offense sentencing doctrine discussed, not applicable under case facts. State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008).

259. Cited; because crime charged was a level 4 aggravated battery, court had jurisdiction to convict for level 5 aggravated battery. State v. McCarley, 287 Kan. 167, 177, 178, 195 P.3d 230 (2008).

260. Cited; court discusses double jeopardy analysis to drug crimes, unitary conduct and unit of prosecution test. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2008).

261. No constitutional violation for failure to instruct on lesser included offense of battery. State v. Hunter, 41 Kan. App. 2d 507, 203 P.3d 23 (2009).

262. Attempt to commit the crime charged is generally a lesser included offense of that crime pursuant to K.S.A. 21-3107; exceptions. State v. Quinones, 42 Kan. App. 2d 48, 208 P.3d 335 (2009).

263. Convictions of the capital murder and underlying sex crime which is a lesser included offense of the capital murder are multiplicitous and in violation of the double jeopardy clause. State v. Appleby, 289 Kan. 1017, 221 P.3d 525 (2009).

264. Theft is a lesser included crime of robbery and aggravated robbery. State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012).

265. Felony murder is a lesser included crime of capital murder. State v. Mireles, 297 Kan. 339, 301 P.3d 677 (2013).

266. Identical offense doctrine does not apply to severity levels of the same offense according to facts of case. State v. Bridges, 297 Kan. 989, 306 P.3d 244 (2013).

267. Identical offense doctrine does not apply to severity levels of the same offense according to facts of case. State v. Friday, 297 Kan. 1023, 306 P.3d 265 (2013).

268. Criminal discharge of a firearm is a lesser included offense of criminal discharge of a firearm at an occupied dwelling. State v. Jefferson, 297 Kan. 1151, 310 P.3d 331 (2013).

269. Possession of marijuana is a lesser included offense of possession of marijuana with no tax stamp. State v. Hensley, 298 Kan. 422, 313 P.3d 814 (2013).

270. Criminal restraint is a lesser degree of kidnapping and, therefore, constitutes a lesser included crime under K.S.A. 21-3107. State v. Ramirez, 299 Kan. 224, 328 P.3d 1075 (2014).

271. Criminal sodomy is not a lesser-included crime of aggravated criminal sodomy because the elements are not identical. Aggravated criminal sodomy does not require proof of the victim's age. State v. Toothman, 310 Kan. 542, 553, 448 P.3d 1039 (2019).


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