CAN YOU GET MORE PUNISHMENT FOR NOT RENDERING AID TO A VICTIM?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Hunter, 22 Kan. App. 2d 103, 911 P.2d 1121 (1996).

This case addresses the following issue:

Can failure to provide aid to the victim of a crime be used to enhance a sentence?

Kansas utilizes a sentencing grid in determining what sentence to impose upon a convicted defendant. Id. at 106. However, when “substantial and compelling” reasons for departing from the recommended sentence exist, the court may impose a longer sentence (durational departure) or a different manner of sentencing, usually incarceration rather than probation (dispositional departure). Id. The statute provides a list of factors, but also allows the court to act on non-listed facts. Id. at 107. In this case, the sentencing court had enhanced Defendant’s sentence both in duration and disposition, based on the failure of Defendant to provide any assistance to the victim of the crimes of another. Id. at 106. The court held that such factors were appropriate to consider and supported enhancement of Defendant’s sentence. Id.

Defendant had several friends over to his apartment in Topeka. Id. at 104. His younger brother was playing with a handgun when it accidentally discharged and hit a girl in the head. Id. The girl fell unconscious and the group thought she had immediately died. Id. No one called for help or attempted to revive the girl. Id. Instead, Defendant and others dragged the girl’s body outside and left it by a dumpster. Id. When the police found the girl, she was still alive, but died a few days later. Id. Defendant plead to obstructing justice and aiding a felon. Id. at 105. At sentencing for the crimes, the trial judge departed both in duration and disposition by sentencing Defendant to 22 months in prison. Id. In justifying this departure, the court noted that the girl was “particularly vulnerable due to her age and reduced physically capacity” after being shot, and Defendant’s failure to provide aid to the girl. Id. at 106.

The court began by noting that “generally, there is no legal duty to rescue or render aid to another in peril.” Id. However, special circumstances can impose such a duty. Id. Finding “no Kansas case helpful on this issue,” the court turned to other jurisdictions. Id. Notably, the court found a Sixth Circuit case relevant: Hutchinson v. Dickie, 162 F.2d 103 (6th Cir. 1947). Id. In that case, the court noted that a captain of a sea vessel must attempt to rescue a passenger that falls overboard. Id. The found this principle analogous to Defendant’s position as the lessor of the apartment, who had control over the premise where the victim remained after being shot. Id.

Essentially, the court drew a somewhat strained comparison between being stranded at sea, with only a nearby vessel capable of providing rescue, and being “stranded” in someone’s apartment, where no one could access the victim without Defendant’s permission. Id. These circumstances constituted “substantial and compelling” reasons to depart from the sentencing grid. Id. at 107. Thus, the trial court had acted appropriately in enhancing Defendant’s sentence. Id. at 108.