Assault & Battery Attorney: Aggravated Battery Lawyer
Battery Charge in Overland Park
Whether it's a bar fight, a road rage incident, a domestic dispute, or an unexpected verbal confrontation, when emotions flare, one poor decision can change your life forever. What starts as a minor conflict can quickly escalate, resulting in a battery charge in Overland Park. The days when law enforcement would simply diffuse an argument and allow everyone to go their separate ways are long gone. If the police are called due to an allegation of assault or battery, there is a significant chance that someone could face jail time. According to the Federal Bureau of Investigation, the number of aggravated assault cases continues to rise across the nation.
Facing an assault or battery charge alone is daunting. Not knowing what to do, what to say, or how to navigate the legal system can lead to anxiety and uncertainty about your future. Whether you believe you are innocent or feel that the charges are exaggerated, you have options. From the outset of an allegation of aggravated assault or battery, you need an aggravated battery attorney on your side.
Understanding Assault and Battery
What's the difference between Assault and Battery?
Many people confuse assault with battery, but in Kansas, they are two distinct crimes with separate statutes and significantly different punishments if convicted.
What is the Law on Assault in Kansas?
Under K.S.A 21-5412, assault is defined as knowingly placing another person in reasonable apprehension of immediate bodily harm. Assault is classified as a Class C person misdemeanor and is punishable by up to 30 days in county jail.
What is the Law on Battery in Kansas?
According to K.S.A. 21-5413, battery involves:
Knowingly or recklessly causing bodily harm to another person; or
Knowingly causing physical contact with another person in a rude, insulting, or angry manner.
Battery is classified as a Class B misdemeanor and is punishable by up to 180 days in county jail.
Many people believe the myth that an assault must involve physical violence. An assault, by definition, does not involve any touching at all by the defendant and the alleged victim. It is the simple act of scaring the victim that is the criminal act.
What is the law on Aggravated Assault in Kansas?
Under K.S.A 21-5412, aggravated assault is defined as:
Assault committed with a deadly weapon;
Assault while disguised to conceal identity; or
Assault with the intent to commit any felony.
Aggravated assault is classified as a Severity Level 7, Person Felony.
What is the law on Aggravated Battery in Kansas?
Section (1)(A): Knowingly causing great bodily harm or disfigurement to another person (Severity Level 4, Person Felony).
Section (1)(B): Knowingly causing bodily harm with a deadly weapon or in a manner that can inflict great bodily harm, disfigurement, or death (Severity Level 7, Person Felony).
Section (1)(C): Knowingly causing physical contact in a rude, insulting, or angry manner with a deadly weapon or in a manner that can inflict great bodily harm, disfigurement, or death (Severity Level 7, Person Felony).
Section (2)(A): Recklessly causing great bodily harm or disfigurement (Severity Level 5, Person Felony).
Section (2)(B): Recklessly causing bodily harm with a deadly weapon or in a manner that can inflict great bodily harm, disfigurement, or death (Severity Level 8, Person Felony).
Types of Assault
Because assault embodies a broad legal scope, it is important to understand two main assault types: simple assault and aggravated assault. The majority of assault charges will fall into these basic categories.
Simple Assault
Simple assault involves intentionally placing someone in fear of bodily harm without any physical contact.
Example:
Bob and John are drinking at a local bar. Words are exchanged, and Bob jumps up, acting like he’s going to punch John in the face. John sees the punch coming and backs up. Bob has just committed a simple assault.
Aggravated Assault
Aggravated assault involves the same actions as simple assault but includes additional factors such as intent to commit a felony, using a masked identity, or possessing a deadly weapon.
Example 1:
A large fight breaks out at a local bar. Bob picks up a beer bottle, breaks it, and uses the broken bottle to threaten John. Bob could be charged with aggravated assault for using the beer bottle as a weapon.
Example 2:
In the same scenario, Bob raises his shirt to show John that he has a gun, making threatening hand gestures without physically touching John. Bob could be charged with aggravated assault for making threats while possessing a deadly weapon.
Importance of an Aggravated Battery Lawyer
Slight variations in circumstances can dramatically impact the type of assault charge and the outcome of the case. Only an experienced aggravated battery lawyer can provide trusted insight into understanding and evaluating the circumstances surrounding your charges.
What are the different types of Battery?
There are several different types of battery, and the severity of the charge and possible punishment varies significantly depending on the actions of the defendant as well as the harm done to the alleged victim.
Simple Battery
Simple battery involves intentionally touching someone in a rude, angry, or insulting manner without causing harm.
Example:
Bob and John are drinking at a local bar. Words are exchanged, and Bob jumps up, pokes John with his finger, and tells him to "back the fuck off." John calls the police. Bob has just committed a simple battery, even though no harm was done to John.
Aggravated Battery
Aggravated battery involves causing actual harm to the alleged victim, with various levels of severity based on the nature of the harm and the presence of weapons.
Example 1:
A large fight breaks out at a local bar. Bob picks up a beer bottle and hits John in the head, requiring stitches. Bob could be charged with aggravated battery for using the beer bottle as a weapon (Severity Level 4, Person Felony).
Example 2:
In the same scenario, if John heals up without needing stitches, Bob could be charged with aggravated battery without great bodily harm (Severity Level 7, Person Felony).
Example 3:
John gets intoxicated and picks up a metal pipe, swinging it and hitting Bob in the head, resulting in five stitches. John has committed aggravated battery (Severity Level 5, Person Felony).
Example 4:
Same as Example 3, but Bob heals without needing stitches. This would be reckless aggravated battery without bodily harm (Severity Level 8, Person Felony).
Importance of an Aggravated Domestic Battery Lawyer
Slight variations in circumstances can dramatically impact the type of assault charge and the outcome of the case. Only an experienced aggravated battery lawyer can provide trusted insight into understanding and evaluating the circumstances surrounding your charges.
What are the Penalties for Assault Charges?
- up to 1 month in jail
- fines up to $500
- misdemeanor conviction on a permanent record
- 11 to 34 months in prison
- fines up to 100,000
- a felony conviction on a permanent record
- up to 180 days in jail
- fines up to $2500
- misdemeanor conviction on a permanent record
- 7 to 172 months in prison
- fines up to 100,000
- a felony conviction on a permanent record
What are the Possible Defenses
- Self-Defense – One of the most common defense strategies. A self-defense strategy is built on the premise that force or violence was used to protect against force or violence.
- Defense of Others – Similar to self-defense but using force or violence in an attempt to protect someone other than self.
- Defense of Property – It may be possible to demonstrate that force or violence was used to protect personal property from being invaded, stolen, or destroyed.
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HOW DOES KANSAS DEFINE ASSAULT?
The law on Assault can be found here.
Assault is intentionally placing another person in reasonable apprehension or immediate bodily harm. Basically, it is putting someone in fear that they are going to be hurt. There are also higher levels of Assault, for example Assault with a deadly weapon. That is the same thing as general assault except you use a deadly weapon to create the fear.
Does someone have to be injured for Assault charges to be filed?
No, they do not. There are varying different degrees of assault. If a person rears back to swing at you, but then doesn't actually hit you that could be an assault in the alternative it could go all the way up to if a person pulls a gun on another person. If a person pulls a gun on you, then that can be an aggravated assault with a deadly weapon. So there are varying different degrees. You do not actually have to hurt the person to be charged with assault. Actual harm is not a factor in the crime.
What are few examples of Assault?
It depends. There are so many different degrees of assault. It can be all the way down the lowest level of a misdemeanor, in Kansas, it is a class C. It can go, depending on the severity level and if there is a weapon involved much higher. Assault can go all the way up to a high level felony. Assault is one of the broadest categories of crime because it is so fact specific on how much trouble a person is going to be in if charged with assault because of the facts involved in the case.
Example #1: Making a fist and acting like you are going to hit someone, that person sees the fist and believes that you are trying to hurt them
Example #2: You get in a disagreement with another person, you pull out a gun and point the gun at the other person.
What can be considered "A Deadly Weapon" in an "Assault with a deadly weapon" charge?
Kansas has specifically defined in the statute what can be a deadly weapon however there is also has a lot of caselaw on different instruments in which could be used to meet the deadly weapon requirement. Common weapons are typically going to be guns, knives, anything that an average person is going to think, “Oh well, that’s a weapon”, is usually going to be defined as a deadly weapon. But there have been cases that people have used shoes, clubs or something that you might not think as a deadly weapon, but if it is used in a way that it can cause serious bodily harm or injury, death or disfigurement, then it can be considered a deadly weapon.
How does the degree of injury affect an assault charge in Kansas?
When you are talking about injury, most of the time, you are going to be talking about battery cases. They run hand in hand, assault and battery, because you might take a swing at someone and miss them the first time and then hit them the second time. You have technically committed assault and then you have later committed a battery. As far as the degree of harm done, there are different levels of battery, depending on the damage done to the person or the potential damage that could have been caused to that person.
I had a gentleman one time that had a weapon in his pocket and the weapon discharged and he accidentally shot his wife. He had no intention of hurting his wife, but that was a reckless act that where you are not intentionally hurting somebody, but you recklessly did hurt somebody. In an instance like that, if you had a loaded gun in your pocket and you were intoxicated or something like that. Most people would deem that as reckless and a battery that occurred because of your recklessness can actually get you charged. Sometimes, there is not even an element of intent as far as you intended to hurt the person or intended to cause an assault or intended to cause a battery.
What are the Potential Penalties for an Assault conviction In Kansas?
If it is just an assault conviction and usually a simple assault it is a class C misdemeanor and the worst thing can happen to you is thirty days in jail. But if you go up to aggravated assaults where you point a gun on someone, the range gets a lot broader because you have to take in a couple of different factors, as in what the severity of the crime is and what your is your criminal history. So a person that has a high criminal history could be looking at years and years in prison. It is a pretty broad category to nail down exactly what someone’s looking at without having some of the specific facts in front of you.
Do you recommend counseling for clients charged with Assault or Battery?
Sometimes. If the person comes in and says, “I never laid a hand on my wife, this charge is complete nonsense”, then I am not going to go and have them do counseling. They do not need the counseling if they are telling me they never did anything wrong, then why would I have them go do counseling? But if it is a crime in which somebody comes in and says, “They have me. I did the thing they say that I did. How can you help me get out of this”, or, “How can you help me mitigate the damages”, then sometimes getting people in counseling is, from the outset, good.
That way, you can go in and show to the judge or the prosecutor if you are trying to work some deal out that this person has been proactive and is dealing with their problem. I have had cases before where it has been a close case, but the person does not want to take the case to trial and I got the state to agree that if the person does counseling on their own and provides proof of the counseling, then the state just dismisses the case all together.
How much "Harm" must occur before someone can be convicted of Battery?
The answer to this question can be ascertained by reading :State v. Potts, 2005, 118 P.3d 692, 34 Kan.App.2d 329
ANSWER: “For simple battery the harm can be slight, trivial, minor, moderate or mere bruising."
This case discussed what actions can constitute being convicted of battery. This case came from the defendant appealing his convictions of rape, aggravated criminal sodomy, criminal threat, and two counts of domestic battery.
“In June of 2003, V.H. was awakened by Potts shortly after midnight when he was attempting to initiate sex. She refused. V.H. testified that Potts hit her twice in the face with a pair of jeans and injured her eye. Potts then grabbed V.H. by her arms, pulled her off the bed, and tore her shirt. V.H. testified that Potts yelled at her and pounded on the walls. V.H. testified that Potts grabbed her hair, forced her to the floor, and picked her up in an attempt to throw her out of the house. When that failed, Potts moved V.H. back to the bedroom, where he put her on the bed and again asked her if she wanted to die. V.H. testified that Potts demanded oral sex, grabbed her head, and forced it towards his penis. V.H. was crying and coughing. She went to the bathroom and vomited. When V.H. returned to the bedroom, Potts again forced her to perform oral sex against her will. After a couple of minutes, Potts told V.H. to stop, and he initiated intercourse. V.H. testified that she did not fight back because Potts was too strong, and she was scared. Potts denied all of V.H.’s allegations. According to Potts, V.H. woke when he entered the bedroom. Potts claimed that V.H. went into the bathroom and then came back with allergy medication and anti-inflammatory drugs. Potts testified that he attempted to grab the medication out of her hands, bruising her arms because he thought she was trying to commit suicide. Potts testified that V.H. initiated both oral and vaginal sex, wanting to show Potts that she could please him. V.H. went to the police, and Potts was arrested. Potts was charged with one count of domestic battery, one count of criminal threat, one count of aggravated criminal sodomy, and one count of rape for the events of June 21, 2003; one count of domestic battery for the May 2002 incident; and one count of domestic battery for the December 2001 incident. A jury convicted Potts on all charges except for the domestic battery charge involving the December 2001 incident. Potts received a controlling sentence of 331 months’ imprisonment.” Id. at 332-33.
The question the Court was tasked with answering was whether the evidence that the State used to prove force or fear was also used to sustain independent convictions for domestic battery and criminal threat. “The record on appeal shows that on the night in question, Potts grabbed V.H. by the arm and attempted to throw her out of the house. Potts acknowledges that this behavior could be used to show force. V.H. testified that Potts made a number of threatening comments. Potts acknowledges that this evidence could be used to prove the fear element.” Id. at 337.
“The problem with this is that Potts contends this force and fear evidence was also used to provide the factual basis for Potts’ domestic battery and criminal threat convictions. The State seemed to acknowledge this during closing argument, as the prosecutor referenced Potts’ threats when presenting its case for force or fear. We must then examine the record on appeal to determine if there is any independent evidence of either force or fear.” Id. at 337.
Domestic battery occurs when one intentionally causes bodily harm against a family or household member. K.S.A.2004 Supp. 21–3412a(a)(1). “The bodily harm which can sustain a conviction for simple battery may be slight, trivial, minor, moderate, or mere bruising.” State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001). V.H. testified that at the start of this incident, Potts hit her twice in the face with a pair of pants and injured her eye. Id. at 338.
The act of hitting V.H. seems to be pure battery, without any element of force. Therefore, the Court found there was independent evidence, apart from Potts’ movement of V.H. through the house, to sustain Potts’ conviction for domestic battery.” Id. at 338.
If you need help with a battery case, contact the Battery Lawyers at Roth Davies, LLC for a free consultation.
Is a Part-Time Policeman a Law Enforcement Officer in Kansas Battery Cases?
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. McDonald, 1977, 222 Kan. 494, 565 P.2d 267.
This case addresses the following issue:
Is a part-time policeman considered a “law enforcement officer” under Kansas statute for battery against a law enforcement officer?
This case involves an appeal from a district court conviction of battery against a law enforcement officer. The Kansas Supreme Court then examined the record and determined that the victim in this case was a law enforcement officer although they were only employed part-time by the city.
The Defendant argued that because Hunt (the victim) was only a part-time policeman, he is not a “law enforcement officer. The Defendant relied upon the definition contained in K.S.A. 1976 Supp. 74-5602(e). That statute is a part of the Kansas Law Enforcement Training Center and Advisory Commission Act, K.S.A. 74-5601, et seq., and its application is limited to that act. However, the controlling statute for this case is K.S.A. 1976 Supp. 21-3110(10), which defines a law enforcement officer as: “Any person who by virtue of his or her office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes.”” Id. at 495.
The defendant further complained that because Hunt was originally hired by the chief of police and not by the city manager pursuant to K.S.A. 12-1014 that he was not a law enforcement officer. Id. The court found that Hunt was wearing a city police uniform and badge, was driving a city vehicle, had been employed as part-time police work for some time, and that he was presumably paid by the city. Although the employment may have been irregular and not in strict conformity with the cited statute, the court had no hesitation in holding that Hunt was a “law enforcement officer” given the facts of the case. Id. Thus the conviction of battery against a law enforcement officer was affirmed.
CAN I GET CONVICTED OF AGG. BATTERY IF I DIDN'T INTEND THE HARM TO BE SEVERE?
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. Curreri, 2009, 213 P.3d 1084, 42 Kan.App.2d 460
This case addresses the following issue:
Who determines whether an injury could cause great bodily harm for an aggravated battery charge?
“Anthony Vincent Curreri appeals his convictions and sentences for aggravated battery, criminal restraint, and two counts of domestic battery, resulting from two domestic altercations involving Curreri’s live-in girlfriend, Silvia Perez. This appeal involved the second altercation which followed a conversation between Curreri and Perez regarding attractive prospective sexual partners other than each other. When Perez identified one such possible sexual partner, Curreri was overcome by jealousy and began hitting her on the head. She ran into the bathroom to escape, and Curreri followed. Curreri pushed Perez onto the bathroom floor, where she struck her head on the bathtub. Curreri then got on top of her and began to strangle her to the point that she almost lost consciousness. Curreri was sentenced to a controlling presumptive term of 27 months in prison” Id. at 1086.
Curreri challenged the sufficiency of evidence presented to support the aggravated battery conviction. “To support this conviction, Curreri must have intentionally caused bodily harm to Perez in a manner in which great bodily harm, disfigurement, or death can be inflicted. See K.S.A. 21–3414(a)(1)(B).” Id. at 1088. Curreri acknowledges that “choking, in general, can result in death.” However, he argued on the extent of the injuries sustained by Perez as a result of his act and the fact that she did not actually suffer great bodily harm. “The plain language of the statute focuses on the potential that great bodily harm, disfigurement, or death can be inflicted, not whether these consequences actually occurred.” Id.
Cuerreri’s argument ignored several important considerations. First, whether the defendant’s conduct could cause great bodily harm under K.S.A. 21–3414(a)(1)(B) is a question of fact for the jury. Id. at 1088. Second, Curreri’s jury was instructed on the lesser included offense of simple battery. Id. Third, there was ample testimony that Curreri’s choking of Perez could have resulted in serious injury or death. Id.
Considering all of this, the jury rejected the alternative of simple battery. There is ample evidence to support its decision to do so. Id. The State did not have to prove that great bodily harm or disfigurement was actually inflicted, only that it could have been inflicted. Id.
BATTERY AGAINST A LAW ENFORCEMENT OFFICER - LEVEL OF INTENT
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. Campbell, 2002, 39 P.3d 97, 30 Kan.App .2d 70
This case addresses the following issue:
What level of intent is required in order to be convicted of battery on a law enforcement officer?
Campbell was on suicide watch at the Sedgwick County Detention Center on the morning of the incident. Campbell started screaming obscenities and urinated on the floor of his cell. Staff then attempted to deliver medication to Campbell. Id. at 99. Deputy Madaline Magdaleno was standing on the right side of Campbell’s door, wearing her sheriff’s department uniform. Magdaleno testified Campbell was angry and yelling and threw a cup of liquid on her arm and chest when she tried to hand him his medication. Id.
Deputy David Spears and staff nurse Kathy Clark corroborated this testimony. Clark observed Campbell dip a cup into the toilet stool in his cell, and she backed away from the door because she thought she knew what he planned. She then saw the liquid come flying out of the doorway and land on Magdaleno. Spears also testified Campbell grabbed a Styrofoam cup, dipped it into the toilet, and threw the liquid, which hit the inside of the door and Magdaleno.
Campbell was charged and convicted of battery against a law enforcement officer in violation of K.S.A.2000 Supp. 21–3413(a)(5).
Battery is defined by K.S.A.2000 Supp. 21–3412(a)(2) as “intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” This definition is explicitly incorporated in the statute outlining battery against a law enforcement officer, K.S.A.2000 Supp. 21–3413. Id. at 72. The Court had to decide whether battery against a law enforcement officer requires a showing that the defendant intended to cause physical contact with another person, in Campbell’s case, by throwing the liquid. Id. at 73.
“The plain language of the battery statute is clear on this point. The defendant must have possessed the general intent to “cause physical contact with another person.” K.S.A.2000 Supp. 21–3412(a)(2). Mere recklessness is not enough, compare K.S.A.2000 Supp. 3412(a)(1) (reckless state of mind adequate to prove battery when it leads to bodily harm of another person), but neither must the State have to prove that the defendant had physical contact with a specific individual in mind.” Id.
On appeal this Court agreed with Campbell that the district court’s refusal to give PIK Crim.3d 54.01–A on general criminal intent compounded the error in the last paragraph of the elements instruction. PIK Crim.3d 54.01–A provides:
“In order for the defendant to be guilty of the crime charged, the State must prove that (his)(her) conduct was intentional. Intentional means willful and purposeful and not accidental. “Intent or lack of intent is to be determined or inferred from all of the evidence in the case.” “The Notes on Use for PIK Crim.3d 54.01–A state it should be given only when: (1) the crime requires a general criminal intent; and (2) the defendant’s state of mind is a substantial issue in the case. Although Campbell met both elements of this test, this instruction might have been unnecessary had the elements instruction not included its last ambiguous paragraph. Given that error, this instruction could have helped.” Id. at 74.
“Having considered all of the instructions given in Campbell’s case together, read as a whole, this court concluded that the district court did not properly and fairly state the law as applied to the facts and the jury could reasonably have been misled. Reversal of the defendant’s conviction is necessary.” Id. at 75.
CONVICTING A DRUNK DRIVER OF AGGRAVATED BATTERY IN KANSAS
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. Barajas, 2010, 230 P.3d 784, 43 Kan.App.2d 639.
This case addresses the following issue:
What level of conduct is required to convict a drunk driver of aggravated battery in Kansas?
“Miguel Barajas appeals from the sentences imposed following his convictions of aggravated robbery and attempted aggravated robbery. He claims the district court erred in classifying his California conviction for driving under the influence (DUI) causing bodily injury, Cal. Vehicle Code § 23153 (b) (West 2000), as a person felony based on a determination that it was comparable to the Kansas offense of aggravated battery, K.S.A. 21–3414.” Id. at 786.
Barajas pleaded guilty in both cases pursuant to plea agreements with the State. “Prior to sentencing, Barajas filed three written objections to his criminal history worksheet, challenging (1) the classification of his California conviction for DUI causing bodily injury as a person felony, (2) the validity of his California conviction, and (3) the use of his conviction in case No. 07CR2397 as a prior conviction for sentencing in case No. 07CR2415.” Id. at 787.
The district court sustained Barajas’ objection to the use of his conviction in case No. 07CR2397 as a prior conviction for sentencing in case No. 07CR2415, noting that the cases had been consolidated. Id. Further, based on its finding that the California conviction was a valid conviction obtained against Barajas, the district court included the DUI conviction in Barajas’ criminal history. Id. Finally, the court determined the California crime of DUI causing bodily injury was comparable to the Kansas crime of aggravated battery and classified the California conviction as a person felony. Id. “Pursuant to the plea agreements, the court granted a durational departure and imposed a sentence of 69 months’ imprisonment for the aggravated robbery and a concurrent sentence of 50 months’ imprisonment for the attempted aggravated robbery.” Id. Defendant appealed the district court’s classification of his criminal history.
The plain language of K.S.A. 21–4711(e) requires the sentencing court to consider whether Kansas has an offense comparable to the out-of-state crime when determining whether an out-of-state conviction should be classified as a person felony. Id. at 788.
A comparable offense need not contain elements identical to those of the out-of-state crime, Vandervort, 276 Kan. at 179, 72 P.3d 925, but must be similar in nature and cover a similar type of criminal conduct. State v. Schultz, 22 Kan.App.2d 60, 62, 911 P.2d 1119 (1996). If Kansas has no comparable offense, the sentencing court must classify the out-of-state conviction as a nonperson felony. K.S.A. 21–4711(e). Id.
In Kansas, “a drunk driver who unintentionally causes bodily harm or great bodily harm can be charged with aggravated battery under K.S.A. 21–3414. However, the State is required to establish evidence of reckless conduct beyond simply driving under the influence of alcohol.” Id. at 790. “Unlike K.S.A. 21–3412 or K.S.A. 21–3414, Cal. Vehicle Code § 23153(b) does not require proof of reckless or intentional conduct. Instead, the elements of felony DUI are satisfied if the State presents evidence of a specific blood alcohol level, evidence of ordinary negligence, and evidence that the defendant’s negligence proximately caused injury to a person other than the driver. Weems, 54 Cal.App.4th at 858, 62 Cal.Rptr.2d 903; Cal. Veh.Code § 23153(b).” Id. at 789.
This Court concluded that while Barajas’ California’s offense of DUI causing bodily injury and Kansas’ offense of aggravated battery similarly require bodily injury to another person, but the offenses do not cover similar types of conduct and are not comparable offenses. Id. California’s offense of DUI causing bodily injury is unlike Kansas’ aggravated battery statute because it includes a very specific causation requirement not required to establish aggravated battery, i.e., that the defendant drive while legally intoxicated and concurrently neglect to perform a duty required by law, which failure results in injury to another person. Id. Further, Kansas’ aggravated battery statute is unlike California’s offense of DUI causing bodily injury because it requires reckless or intentional conduct, while California’s offense requires only general negligence. Id
Because the district court erred in finding the two crimes comparable and in classifying Barajas’ California conviction as a person felony, this Court vacates Barajas’ sentences and remand to the district court for resentencing. Id. at 787.
GREAT BODILY HARM FOR AGGRAVATED BATTERY
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. Robinson, 2017, 399 P.3d 194, 306 Kan. 1012.
This case addresses the following issue:
How much harm is considered to be great bodily harm for aggravated battery?
In this case the defendant appealed a conviction of aggravated battery. “In August 2010, an argument between Jason Robinson and his girlfriend, L.C., at her home escalated into violence. The parties presented conflicting accounts at trial—L.C. testified that Robinson kicked in the door and struck her in the face. Robinson claimed that L.C. broke the door and he acted in self-defense.” Id. at 1012. “L.C. sustained an orbital wall fracture and a corneal abrasion, which could cause infection or permanent double vision and require surgery. Id. at 1013.The State presented substantial evidence of abuse, as well as corroborating testimony from a responding officer and the treating physician. However, L.C. recanted some statements she made to law enforcement. Ultimately, the jury convicted Robinson of aggravated burglary, aggravated battery, and criminal damage to property.” Id. at 1012. The district court sentenced Robinson to a total of 114 months’ imprisonment. Id. at 1017.
The jury instructions stated that to convict Robinson of aggravated battery, the State had to prove that Robinson intentionally caused “great bodily harm,” or “bodily harm … in any manner whereby great bodily harm, disfigurement or death can be inflicted” to L.C. Id. The jury instruction defined “bodily harm” as follows:
“As used in these instructions, bodily harm has been defined as any touching of the victim against the victim’s will, with physical force, in an intentional hostile and aggravated manner. The word ‘great’ distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor or moderate harm, and as such it does not include mere bruises.” Id. at 1027.
“This definition of bodily harm comports with caselaw and the comment to PIK Crim. 3d 56.18 (2009 Supp.). Kansas courts have defined “bodily harm” as “‘any touching of the victim against [the victim’s] will, with physical force, in an intentional hostile and aggravated manner.’” Id. Furthermore, the courts have defined “great bodily harm” as “more than slight, trivial, minor, or moderate harm, [that] does not include mere bruising, which is likely to be sustained by simple battery.” Id.
The definition of bodily harm in the comment to PIK Crim. 3d 56.18 (2009 Supp.) is identical to instruction 11, except for one slight deviation—the comment states that “the word ‘great’ distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.”
The defendant cited State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003), to argue that the district court instructed the jury as a matter of law that certain circumstances constitute “bodily harm.” Id. at 1027. However, Brice bears no resemblance to this case. In Brice, this court held that the district court erred when it gave a jury instruction defining “great bodily harm” as a “through and through bullet wound” because the uncontroverted evidence showed the defendant inflicted such a wound, leaving no room for the jury to find that element beyond a reasonable doubt. 276 Kan. at 771, 80 P.3d 1113. “Here, the district court did not graft facts of the case into the bodily harm instruction. On the contrary, instruction 11 was legally appropriate because it “fairly and accurately stated the applicable law.” Id. at 1028.
“Finally, the district court’s instruction was factually appropriate because the State presented a substantial amount of evidence—consisting of photographs and multiple testimonies—that L.C. sustained serious injuries to her eye, which could create permanent complications, such as double vision. Because the instruction was legally and factually appropriate, it was not given in error.” Id.
DETERMINING THE EXTENT OF INJURY FOR AN AGGRAVATED BATTERY CHARGE
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. Dubish, 1984, 234 Kan. 708, 675 P.2d 877
This case addresses the following issue:
Who determines the extent of injury or harm for an aggravated battery charge?
Andrew T. Dubish appealed his convictions of aggravated kidnapping, aggravated sodomy, aggravated battery, and of making a terroristic threat. Id. at 880.
On October 4, 1982, Mr. Dubish picked up his sons Chris and Darren at Mrs. Dubish’s residence. The defendant agreed to return the children at 10:00 p.m. that evening. When the defendant returned to the residence at 10:00 p.m., Mrs. Dubish was not there. Chris informed his father that his mother was in the process of moving. Mr. Dubish, with the two boys in the vehicle, drove to the new residence. Finding no one there, he headed back toward the Thompson Street residence. On the return trip, the defendant and Mrs. Dubish passed each other. Mrs. Dubish turned her car around and followed the defendant to 1233 Thompson Street. Id.
The defendant walked to the car and said he wanted to talk with her. Mrs. Dubish said they could speak there. The defendant stated he did not want to speak with her there. Mrs. Dubish attempted to back her car into the driveway. The defendant reached into the car and pulled the keys out of the ignition, but the car continued running. The defendant opened the car door and jerked Mrs. Dubish from the car by her hair. The defendant gave the car keys to Chris and told him to put the car in the garage. Chris got into the car and drove off. Chris later returned home and called the police. The defendant kept stating he wished to speak with Mrs. Dubish, but she refused. The defendant dragged Mrs. Dubish to his pickup truck and shoved her into the truck. Mr. Dubish then ordered Darren into the truck and drove off with Mrs. Dubish and Darren in the truck. Id. at 881.
While driving, the defendant struck Mrs. Dubish in the face chipping one of her front teeth. Mrs. Dubish tried to jump out of the truck but was restrained by the defendant. Mr. Dubish got out of the truck pulling Mrs. Dubish out with him. The defendant struck Mrs. Dubish numerous times in the face, stomach and back. He pulled her hair, kicked her and beat her until she fell to the ground. The defendant stated he hated her and wanted to kill her. He took her to the back of the truck, unzipped his pants and ordered Mrs. Dubish to perform oral sex.. At the trial Mrs. Dubish testified she performed oral sex because she had been beaten and was frightened. After Mrs. Dubish had performed oral sex with the defendant, the defendant unzipped and pulled down Mrs. Dubish’s pants and then beat her again.
Mrs. Dubish had marked swelling and bruising of the left and right cheek areas. There were multiple bruises of both arms and legs and upper chest and the left scapular area of the left back, and there were red linear discolorations of the neck and reddened area in the upper abdomen. The white part of her left eye was hemorrhagic. Id. at 882.
“Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which either:
Inflicts great bodily harm upon him; or
Causes any disfigurement or dismemberment to or of his person; or
Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.” Id. at 884.
Bodily harm has been defined as “any touching of the victim against the victim’s will, with physical force, in an intentional hostile and aggravated manner.” State v. Taylor, 217 Kan. 706, 714, 538 P.2d 1375 (1975). The word “great” distinguishes the bodily harm necessary in this offense from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery. Whether the injury or harm is great or not is generally a question of fact for the jury. State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978).
When applying the law to the facts of this case, the Court came to the following conclusion. “After the pickup was stopped in a remote field near the pond, the defendant forcefully removed the victim from the vehicle. He again beat Mrs. Dubish, striking her in the face, stomach and back, pulled her hair and kicked the victim numerous times. After being beaten into submission, the victim was forced by the defendant to commit oral sex. The acts of hitting and kicking the victim were sufficient for the jury to find the defendant guilty of aggravated battery.” Id. at 887.
DETERMINING DISFIGUREMENT FOR AN AGGRAVATED BATTERY CHARGE
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. Chandler, 1993, 252 Kan. 797, 850 P.2d 803
This case addresses the following issue:
Who determines what is considered disfigurement for an aggravated battery charge?
Arthur Chandler, an inmate at the Hutchinson facility, was convicted by a jury of one count of aggravated battery against a law enforcement officer. Id. at 804. He was sentenced to life imprisonment and he subsequently appealed his conviction.
Sergeant Gary D. Hook was working at the Hutchinson Correctional Facility. Hook was in the dining room where Chandler was seated. Chandler asked another inmate to bring him soap and tobacco to use until Chandler was allowed to purchase the items at the inmate store. A disagreement arose out of the request which ultimately involved Chandler, Hook, other inmates, and other officers. Id. Chandler was taken to segregation. When Hook was going up the steps in the C-2 cell house, he was struck by an object. Id. at 805. This caused him to fall and black out. When he came to, he felt a gash on his head and his face was covered with blood. “The cut healed and left an indented scar on the top of Hook’s head. He has problems with numbness in the left side of his face. He has lost some neck mobility.” Id. The treating physician testified that this injury could have resulted in death.
“Chandler argues that the jury found him guilty under the combined elements of the substantive statute prohibiting aggravated battery against a law enforcement officer and the statute defining aggravated battery. “Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which … (b) Causes any disfigurement or dismemberment to or of his person,” “committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty.” Id. at 806-07. Chandler argued that evidence didn’t sufficiently prove disfigurement.
Chandler referenced multiple cases which addressed disfigurement, including, United States v. Cook, 462 F.2d 301, 304 (D.C.Cir.1972) (“to disfigure is ‘to make less complete, perfect, or beautiful in appearance or character,’ and disfigurement, in law as in common acceptation, may well be something less than total and irreversible deterioration of a bodily organ”); Perkins v. United States, 446 A.2d 19, 26 (D.C.1982) (the crime of malicious disfigurement required that as a result of a permanent injury, a person must be appreciably less attractive or that a part of the body must be to some appreciable degree less useful). Id. at 807-808.
“The State argued the fact that the jury was instructed on both aggravated battery against a law enforcement officer and the lesser included offense of battery against a law enforcement officer. The State contended that the jury found Chandler guilty of aggravated battery of a law enforcement officer by disfigurement. Furthermore, the State contended that the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences to be drawn from the evidence are the exclusive province of the jury, not the appellate courts.” Id. at 808.
The treating physician testified that Officer Hook’s injury consisted of far more than bruising. The tissue that was in Hook’s scalp died after he was hit and was naturally reabsorbed into the body, leaving an indentation. Id. The evidence in this case was sufficient for the jury to find disfigurement. Hook’s head became imperfect or deformed as a result of the injuries he sustained. Id. Hook was the victim of a damaging action and, at the time of the attack, was rendered partly or wholly defenseless. Id.
“The Court believed that “disfigurement” under K.S.A. 21-3414(b) has no single technical meaning or single definition. When an injury has been established, whether it is a disfigurement under K.S.A. 21-3414(b) is a fact question to be determined by the trier of fact. Disfigurement should be considered in the ordinary sense. The evidence, in the case at bar, amply supported the jury’s conclusion.” Id.
Chandler’s conviction and sentence were affirmed.
DEFINING “GREAT BODILY HARM” FOR AGGRAVATED BATTERY
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. Smith, 2008, 176 P.3d 997, 39 Kan.App.2d 64
This case addresses the following issue:
What is the definition of “great bodily harm” when it comes to an aggravated battery?
Roosevelt Smith, III, appealed his conviction of aggravated battery. The charge against Smith arose from events on of June 27, 2005. Id. at 999.
Smith claims that when he and Casey knocked on Barnum’s (the victim) door, a woman answered and told them to leave. As they retreated from the porch, Barnum ran out of the front door brandishing two knives. She chased Smith and then chased Casey back into her van. Barnum thrusted the knives through the open driver’s side window of Casey’s van. Casey escaped in the van. At that point, Barnum redirected her attention to Smith. As Barnum approached, Smith claimed he picked up a cement clod, threw it at Barnum, and ran to catch up with Casey’s van. They then returned to Barnum’s house to talk with police. Id. at 65-66.
Barnum’s version of the events was quite different. She and her roommate, Shelly Swaimston, testified that they heard someone knocking at the door around 1 or 2 a.m. When Barnum opened the door, Smith hit her in the shoulder with a brick causing her to fall to her knees. Barnum thought she saw a gun in Smith’s hand, and Swaimston heard Casey repeatedly say, “‘cap her ass.’” Id. at 66
The police did not find the cement clod Smith claimed he threw. However, they did observe a brick on the porch which had broken into smaller pieces. Similar loose bricks were discovered at Smith’s home. Id. Smith was charged with aggravated battery.
The difference between battery and aggravated battery is the inclusion in the latter crime of the additional element that the act is performed “with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” See K.S.A. 21–3412(a)(2) and K.S.A. 21–3414(a)(1)(C). Id. at 69.
“Great bodily harm” has often been defined as more than “slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained by simple battery.” Id.
The testimony bearing on this issue came from Barnum and Swaimston. “Barnum testified that when she opened the door where Smith and Casey were standing, Casey stepped aside and Smith “was right there on me.” Smith had a brick in his hand. “He didn’t throw it. He had it in his hand and went to hit me. Had I not turned, he would have hit me in my face.” Smith struck Barnum on her shoulder “very hard.” Barnum immediately fell to her knees. She thought her arm was broken since it was limp and numb. In fact, the blow dislocated her shoulder.” Id. at 70.
The evidence was controverted as to where and with what object Smith struck Barnum. The evidence was controverted as to whether Smith acted in self-defense or whether he was the aggressor. “If the jurors believed Smith fell to the ground as he attempted to elude Barnum and threw a cement clod to ward her off, they could have acquitted him. They did not believe Smith. Having rejected Smith’s version of the events, what evidence did the jurors have to consider? “Id.
“Here, the evidence was that Smith struck Barnum with a brick with sufficient force to separate her shoulder. Given uncontradicted testimony regarding the force of the blow and the seriousness of its consequences to Barnum, the district court did not err in failing to instruct the jury sua sponte on the lesser included offense of simple battery.” Id.
WHO DETERMINES GREAT BODILY HARM FOR AGGRAVATED BATTERY CHARGES?
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. Curreri, 2009, 213 P.3d 1084, 42 Kan.App.2d 460
This case addresses the following issue:
Who determines whether an injury could cause great bodily harm for an aggravated battery charge?
“Anthony Vincent Curreri appeals his convictions and sentences for aggravated battery, criminal restraint, and two counts of domestic battery, resulting from two domestic altercations involving Curreri’s live-in girlfriend, Silvia Perez. This appeal involved the second altercation which followed a conversation between Curreri and Perez regarding attractive prospective sexual partners other than each other. When Perez identified one such possible sexual partner, Curreri was overcome by jealousy and began hitting her on the head. She ran into the bathroom to escape, and Curreri followed. Curreri pushed Perez onto the bathroom floor, where she struck her head on the bathtub. Curreri then got on top of her and began to strangle her to the point that she almost lost consciousness. Curreri was sentenced to a controlling presumptive term of 27 months in prison” Id. at 1086.
Curreri challenged the sufficiency of evidence presented to support the aggravated battery conviction. “To support this conviction, Curreri must have intentionally caused bodily harm to Perez in a manner in which great bodily harm, disfigurement, or death can be inflicted. See K.S.A. 21–3414(a)(1)(B).” Id. at 1088. Curreri acknowledges that “choking, in general, can result in death.” However, he argued on the extent of the injuries sustained by Perez as a result of his act and the fact that she did not actually suffer great bodily harm. “The plain language of the statute focuses on the potential that great bodily harm, disfigurement, or death can be inflicted, not whether these consequences actually occurred.” Id.
Cuerreri’s argument ignored several important considerations. First, whether the defendant’s conduct could cause great bodily harm under K.S.A. 21–3414(a)(1)(B) is a question of fact for the jury. Id. at 1088. Second, Curreri’s jury was instructed on the lesser included offense of simple battery. Id. Third, there was ample testimony that Curreri’s choking of Perez could have resulted in serious injury or death. Id.
Considering all of this, the jury rejected the alternative of simple battery. There is ample evidence to support its decision to do so. Id. The State did not have to prove that great bodily harm or disfigurement was actually inflicted, only that it could have been inflicted. Id.
What Is Considered a Deadly Weapon for Aggravated Battery?
Answer: an instrument that, in the manner used, is calculated or likely to produce death or serious bodily injury. The determination that an instrument is a deadly weapon is based upon an objective standard; in other words, an instrument is a deadly weapon if the instrument is used in a manner which a reasonable person would believe likely to produce death or serious bodily injury.
The answer to this question can be found by reading: In re J.A.B., 2003, 77 P.3d 156, 31 Kan.App.2d 1017
In this case a juvenile was adjudicated guilty of aggravated battery and simple assault. The conviction was subsequently appealed.
On April 17, 2002, C.P., the victim, was walking to a friend’s house along with her friend, L.C., and L.C.’s younger brother, W.W. As the group passed the home of D.M., the respondent ran around the house from the backyard carrying a plastic pellet gun, and D.M. closely followed. The respondent ordered the victim, L.C., and W.W. not to move or they would be shot. Id. at 157. The respondent pointed the gun at the victim, who hid behind W.W. The respondent told W.W. to move. When W.W. did not move out of the way, the respondent cocked the gun before saying: “I have to shoot it now.” The respondent turned the gun towards L.C., who jumped behind a tree. The respondent then again aimed the gun at the victim and shot her in the leg. Id. at 157.
The victim shouted when the pellet hit her leg, rubbed her leg where the pellet had stung her, and joined L.C. behind the tree. When the victim peeked out from behind the tree, she noticed that the respondent had handed the gun to D.M., who was reloading it. The victim ran towards L.C.’s house, hearing pellets zinging past her as D.M. continued to shoot at her. Id. at 158. A finding of guilt under K.S.A. 21–3414(a)(2)(B) is a severity level 8-person felony. In order to reach such a finding, the finder of fact must find either that the respondent recklessly inflicted bodily harm on another person with a deadly weapon or recklessly inflicted bodily harm upon another in a manner whereby great bodily harm, disfigurement, or death can result. Id. at 1022.
Here, the weapon used was a hand-held, spring-loaded handgun which fired synthetic nylon pellets. The respondent contends that the district court properly found that the pellet gun cannot be categorized as a deadly weapon. However, the respondent also argues that the manner in which the gun was used could not possibly have caused C.P. great bodily harm, disfigurement, or death. Id. In the context of the aggravated battery statute, a deadly weapon is an instrument that, in the manner used, is calculated or likely to produce death or serious bodily injury. See State v. Whittington, 260 Kan. 873, 878, 926 P.2d 237 (1996). The determination that an instrument is a deadly weapon is based upon an objective standard; in other words, an instrument is a deadly weapon if the instrument is used in a manner which a reasonable person would believe likely to produce death or serious bodily injury. Id. at 1023.
Because the determination of whether an instrument is a deadly weapon is so tied to the circumstances in which the instrument is used, this determination is generally a question reserved to the finder of fact. See State v. Colbert, 244 Kan. 422, 427, 769 P.2d 1168 (1989). Here, the district court made a negative finding concerning the deadly nature of the pellet gun. Id. However, the district court found that the respondent’s actions constituted aggravated battery under the provision which defined the crime as the reckless infliction of bodily harm upon another in a manner whereby great bodily harm, disfigurement, or death can result. Id. When reviewing the sufficiency of the evidence, this court must interpret disputed facts in a light most favorable to the petitioner. See In re B.M.B., 264 Kan. at 433, 955 P.2d 1302. “Given our standard of review, we are satisfied that the record demonstrates a sufficient potential for great bodily harm to the victim to support the district court’s finding that the respondent was guilty of aggravated battery.” Id.
If you have been charged with Aggravated Battery contact our office for a consultation.
DETERMINING WHAT IS CONSIDERED A DEADLY WEAPON
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. Whittington, 1996, 260 Kan. 873, 926 P.2d 237.
This case addresses the following issue:
Who determines whether an object is considered a deadly weapon for an aggravated battery charge?
This case concerns a preliminary examination probable cause determination. Defendant Joe Whittington was charged with aggravated battery against his wife. The district court, reasoning that the State failed to present sufficient evidence to bind Whittington over for trial, dismissed the complaint. The State appealed. Id. at 238.
“Whittington and his brother hosted a July 4th barbecue at the Whittington residence. Judy, Whittington’s wife, arrived home, saw “a couple of girls” in the garage she did not know, and became angry. She screamed at Whittington, who responded by climbing inside his Chevy Blazer, which was parked on the grass next to the driveway. Judy followed Whittington and stood behind the Blazer. Whittington started the engine. Other guests told Judy to move. She did. The Blazer backed up. She then went to the driver’s side, slammed a glass mug against the vehicle door, and stood in front of the Blazer. Whittington drove forward, knocking her to the ground. Her wrist was broken. Judy testified that her husband got out to help her, she screamed at him to leave her alone, and he drove away.” Id. at 239.
If, from the evidence presented at the preliminary examination, it appears that a crime has been committed and there is probable cause to believe the defendant committed the crime, the magistrate shall bind the defendant over for trial. K.S.A. 22–2902(3). Id. at 240. “The evidence need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination.” Id.
K.S.A. 21–3414(a), the statute under which Whittington was charged, provides in part:
“Aggravated battery is:
“intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
“recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Id.
“The determination of whether an object is a deadly weapon requires an objective test and is a question for the jury.” State v. Manzanares, 19 Kan.App.2d 214, Syl. ¶ 2, 866 P.2d 1083 (1994) The courts have defined “deadly weapon,” in the context of the crime of aggravated battery, as “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985) (citing Black’s Law Dictionary 487 [4th ed. rev.1968]).
Unlike the victim in Manzanares, Judy was not inside another car when the Blazer struck her. Knight testified that after her fall, Judy kept saying, “I can’t breathe,” which may indicate the Blazer’s impact was sufficient to knock the wind out of her. Id. at 241. Whittington may not have intended to seriously injure Judy. “However, almost any frontal impact between a moving automobile and a human being could produce serious injury. A jury question is raised as to whether Whittington was using the Blazer as a deadly weapon.” Id.
When this Court viewed the evidence most favorably to the State, they found that there was probable cause sufficient to bind Whittington over. Id. “When the State has established the necessary probable cause at a preliminary examination, it is the duty of the judge to bind the defendant over for prosecution regardless of the wishes of the alleged victim or the personal assessment of the judge as to the merits of the action.” Id. at 242.
WHEN IS A LAW ENFORCEMENT OFFICER CONSIDERED “PROPERLY IDENTIFIED”
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. Wood, 1984, 235 Kan. 915, 686 P.2d 128
This case addresses the following issue:
When is a law enforcement officer considered “properly identified” for an aggravated battery of a law enforcement officer charge?
Defendant was convicted in the Johnson District Court of aggravated sodomy, aggravated battery of a law enforcement officer, aggravated kidnapping, aggravated burglary, aggravated assault, three counts of aggravated assault of a law enforcement officer, two counts of rape, and two counts of felony theft, and defendant appealed. Id. at 128.
“The events from which the twelve felony convictions arose commenced on the morning of December 9, 1982, when two Kansas City, Missouri, police officers noticed a suspicious vehicle in their city. The officers activated their emergency equipment and the suspect vehicle sped away. A high-speed chase ensued which ended in Johnson County, Kansas, where the defendant (driver of the fleeing vehicle) forced his way into an apartment, taking the female occupant thereof as hostage. All of the crimes against persons occurred in or near the apartment building. The hostage escaped after several hours of confinement and defendant was then arrested.” Id. at 132.
The defendant raised 10 issues on appeal. “For his ninth issue defendant contends the officer victims had not previously properly identified themselves as law enforcement officers and the various convictions for offenses against law enforcement officers were improper.” Id. at 137.
The court in State v. Bradley, 215 Kan. 642, 527 P.2d 988 (1974), held the following:
“Under K.S.A.1973 Supp. 21–3411 an aggravated assault of a law enforcement officer is an aggravated assault, as defined in section 21–3410, committed against a uniformed or properly identified law enforcement officer while such officer is engaged in the performance of his duty. A ‘properly identified’ law enforcement officer under K.S.A.1973 Supp. 21–3411 is one who has been identified in such a manner to the defendant that he reasonably should know him to be a law enforcement officer. To sustain a conviction under K.S.A.1973 Supp. 21–3411, proscribing an aggravated assault upon a law enforcement officer in the performance of his duty, it is not necessary that the state prove the defendant had actual knowledge that the person assaulted was a law enforcement officer. An officer-victim under K.S.A.1973 Supp. 21–3411, proscribing an aggravated assault upon a law enforcement officer engaged in the performance of his duty, need not personally identify himself as a law enforcement officer to the defendant. The statute merely requires that the officer-victim be properly identified without designating the method.” Id. at 137.
With this in mind, the Court looked at the facts relative to each officer-victim. Detective Wharton was in plain clothes in an unmarked vehicle. Id. Upon observing defendant’s vehicle was only displaying one license plate, emergency equipment was activated, which Defendant declined to stop and sped from the scene. Id. After defendant’s vehicle collided with another automobile, defendant fled the scene on foot with Detective Wharton in pursuit. No conversation occurred between the two. Defendant shot the detective in the hand and ran into a nearby apartment complex. He then forced his way into an apartment, stating he had just shot a cop in the hand. Id. This was sufficient evidence from which the jury could have concluded defendant reasonably should have known Detective Wharton was a police officer at the time he fired upon him. Id.
Next the Court considered the facts relative to Detective Kramer and Officer McBride. The detective was in plain clothes; the officer was in uniform. Two hours elapsed between defendant entering the apartment and the shots being fired. During this time these officers and others were trying to talk defendant into surrendering without harming the hostage. Id. at 138. It is clear from the totality of the circumstances from which the jury could have concluded the defendant reasonably should have known the men in the stairwell were law enforcement officers. Id.
The Court then considered the facts relative to the assault on Officer Baldwin. This officer was a member of the Overland Park Response Team. Id. He was stationed below an evergreen which gave him a view of the window of the apartment involved in the siege. At about 4:07 p.m., with some thirty law enforcement officers on the scene, defendant fired shots in the vicinity of the evergreen. At the same time defendant stated he was “going to kill the guy in the bushes.” Id. The Court concluded there was ample evidence from which the jury could conclude defendant reasonably should have known Officer Baldwin was a law enforcement officer at the time he fired upon him.
The Court found the defendant’s argument in relation to whether he knew the victims were law enforcement, in its totality, wholly without merit. Id. The judgment was affirmed.
PROVING “RECKLESSNESS” FOR AN AGGRAVATED BATTERY CHARGE
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. Spicer, 2002, 42 P.3d 742, 30 Kan.App.2d 317
This case addresses the following issue:
What state of mind is required to prove “recklessness” for an aggravated battery charge?
On July 28, 1999, the defendant stopped by a bar where his mother worked. Defendant ordered a beer and met with his mother and his girlfriend, Jennifer Gentry. Id. at 318. When Gentry and the defendant prepared to leave the bar shortly before closing, the defendant was intoxicated and needed some assistance getting to Gentry’s car. Gentry had stopped drinking approximately 2 hours before leaving. Id.
“According to Gentry, shortly after they left the bar, the defendant began to insist upon driving. Gentry refused, believing defendant to be too intoxicated to drive. The defendant then threw the transmission into park, pulled the keys out of the ignition, and threatened to throw the keys into a field if Gentry did not allow defendant to drive. Eventually, Gentry conceded to the defendant’s demands. The defendant began to speed the car down the highway and refused to slow down as requested by Gentry. Fearing the defendant would wreck the car, Gentry climbed into the back seat. Moments later, the car failed to make a bend in the road and slammed into a utility pole.” Id. at 319.
“The defendant’s factual version of the events preceding the crash differs from Gentry’s version of the facts. Defendant claims that as Gentry and he left the bar, Gentry hounded him with questions concerning his fidelity to her. The defendant became irritated and told Gentry to move back to Lawrence because he did not want to deal with Gentry’s accusations. In response, Gentry supposedly floored the accelerator and threatened to kill both of them. The defendant tried to calm Gentry and slow down the vehicle. When Gentry did, the defendant threw the car into park, took the keys out of the ignition, and demanded to drive. As the defendant drove, he claims Gentry renewed the argument. The next thing the defendant recalled was seeing the pole right before the crash.” Id.
The State charged the defendant with recklessly causing an aggravated battery of Gentry and driving while suspended. Id. The jury convicted the defendant of the lesser included offense of reckless aggravated battery and convicted the defendant of driving while suspended. Id. at 320.
The defendant then appealed the convictions. He claimed the district court should have instructed the jury on the defense of voluntary intoxication. The defense of voluntary intoxication can only be used when the charged crime requires specific intent. Id. at 323.
The applicable statute under the Court’s consideration defined aggravated battery as “intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414. Concluding the intent element of the statute to be merely a general intent requirement, this court held that voluntary intoxication was not an available defense to the offense as charged. Id. at 324.
“General intent is a state of mind in which a person is conscious of the act he or she is committing without necessarily understanding the consequences of that action, yet voluntary intoxication provides no defense for the commission of a prohibited act requiring only general intent.” Id. Specific intent requires a demonstration of a greater culpable mental state than mere recklessness or negligence. Id.
K.S.A. 21-3201 provides that general intent may be proven by demonstrating intentional or reckless conduct. Just as the “intentional” element of intentional aggravated battery merely articulates the general intent requirement, the “reckless” element of reckless aggravated battery merely articulates the general intent requirement. Id.
The reckless requirement of the charged offense, for this case, does not require any specific state of mind to commit an offense. Rather, the statute merely requires a person to take an unjustifiable risk which results in a harmful touching to the person of another. Id. In other words, the harm to another need not be intentional, in the sense the offender intended physical contact with the other person but included accidental physical contact which harms the person, although the harm may not be intended. “Recklessness” does not transform aggravated battery from a general intent crime into a specific intent crime. Id. Clearly, an instruction on the defense of voluntary intoxication was not warranted here and the conviction is affirmed.
CAN I PLEAD SELF-DEFENSE FOR A RECKLESS AGGRAVATED BATTERY CHARGE?
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. Bradford, 2000, 3 P.3d 104, 27 Kan.App.2d 597.
This case addresses the following issue:
Is the defense of self-defense available for a reckless aggravated battery charge?
Defendant Michael Bradford was convicted of reckless aggravated battery. He was sentenced to 24 months’ probation with an underlying prison term of 8 months. This is a direct appeal from the conviction. Id at 105.
According to the victim (Jessie), defendant became intoxicated and was using language she did not approve of. Defendant described Jessie as a big woman who was 70 years of age at the time of the incident in question. When defendant would not refrain from using objectionable language in her home, Jessie ordered him to leave. Defendant and Jessie exchanged angry words, and defendant admits he twice called Jessie a bitch. He admits that he knew Jessie would be very angry if he called her a bitch, but he did so anyway. Id.
Defendant then got into his car and was preparing to leave. Jessie was outside and had a hammer and some small garden tools in her hand. As defendant sat in his car, he called Jessie a bitch once again. Jessie started toward the car with the hammer in her hand and opened up the passenger side door. Id. Defendant stated that in an attempt to leave, he first backed up and then drove forward. Id. at 106. In the process, he knocked Jessie down and hit her with his automobile. Jessie was rendered unconscious and sustained visible wounds to her shoulder, back, and leg. Id. Defendant, after realizing what happened, thought he had “killed her” and was quite anxious about her condition. Id. Someone called 911, the police and an ambulance arrived, Jessie was taken to the hospital, and defendant was arrested.
Defendant was charged with having unlawfully and recklessly caused “great bodily harm or disfigurement to another person, to wit: Jessie Bradford.” This was a charge of reckless aggravated battery, which was a severity level 5-person felony under K.S.A. 21–3414(a)(2)(A). Id.
On appeal, defendant argued that the trial court erred in refusing to give self-defense instruction. Id. at 107. Defendant testified that he never tried to hit or hurt Jessie and that all he wanted to do was leave and get out of the way. When asked if he was afraid of Jessie, he said, “More of the hammer, because she could hit and I’d get over it but a hammer.” Id.
Defendant was convicted of reckless conduct which caused bodily harm to Jessie. The question is whether one can defend against reckless conduct by claiming self-defense. The Court concluded that such a defense is not available in a case where the charge is one of reckless conduct. Id. “In Kansas, one may use force against an aggressor when he or she reasonably believes it is necessary to defend against the imminent use of force by the aggressor. Self-defense is the intentional use of reasonable force to fend off an attacker. The concept of recklessness does not fit within the definition of self-defense.” Id.
DOES A STABBING QUALIFY AS AGGRAVATED BATTERY?
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. Ingram, 2005, 113 P.3d 228, 279 Kan. 745
This case addresses the following issue:
Does a stabbing qualify as aggravated battery?
In this case Wilson Termaine Ingram II was arrested following an incident, in Manhattan, in which Matthew Siebrandt was stabbed in the groin. When police officers found Ingram, they handcuffed him and searched his pockets, finding three rocks of crack cocaine and marijuana. Id. at 746. He was convicted on aggravated battery, possession of cocaine, possession of marijuana, and failure to affix tax stamp. Defendant subsequently appealed the convictions.
On the night of the incident, law enforcement was notified by dispatch that a black male wearing at Hawaiian shirt and dark jean shorts had been involved in a stabbing. Id. An officer saw an individual matching that description running between two homes, initiated a stop, and ordered the individual to the ground. Id. at 747. The individual turned out to be the defendant in this case. At the time of the stop the officer believed Ingram had been involved in the stabbing and instructed another officer to search his pockets. During that search several rocks of cocaine and some marijuana was found. Id. The officers involved each testified that they felt they had probable cause to believe that Ingram had committed the stabbing and thus searched him for their safety. Id.
Ingram argues that the evidence should have been suppressed because, although it would have been discovered during the security search at the Center, he had not been arrested, and the police cannot search a suspect who simply has been brought into a secure facility for questioning. Id. at 750. Ingram argues in the alternative that even if he had been arrested, no probable cause existed to support it. Accordingly, the drugs could not have been found by lawful means and the inevitable discovery doctrine would not apply. Id. “The State responds that had the drugs not been found at the scene, Ingram would have been subject to arrest for the aggravated battery based upon probable cause, and that the corrections staff would have found the drugs at the Center during the security search.” Id.
Under Kansas law, a law enforcement officer can make a warrantless arrest when he or she “has probable cause to believe that the person is committing or has committed a felony. K.S.A.2003 Supp. 22–2401.” Ramirez, 278 Kan. at 405, 100 P.3d 94. Id. at 752. There the court observed:
“Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Ramirez, 278 Kan. at 405, 100 P.3d 94. (quoting State v. Abbott, 277 Kan. 161, Syl. ¶ ¶ 2–3, 83 P.3d 794 [2004]).
“A stabbing can qualify, among other things, as the felony crime of aggravated battery under K.S.A. 21–3414.” Id. at 753.
The Court paraphrased Ramirez, by holding that the totality of the circumstances within the law enforcement officers’ knowledge was sufficient to warrant a person of reasonable caution in the belief that the felony offense of aggravated battery had been committed by Ingram. Id. Because we conclude that there was probable cause to arrest, any security search that was done at the Center was lawful. The State has shown by a preponderance of the evidence that the drugs found by Officer Bertrand at the scene would have been inevitably discovered by corrections officers at the Center. Id. The defendant’s convictions were affirmed.
WHAT LEVEL OF INTENT IS REQUIRED FOR AN AGGRAVATED BATTERY CHARGE?
The answer to this question is found by reading: State v. Johnson, 2011, 265 P.3d 585, 46 Kan.App.2d 870.
Answer: The defendant must act intentionally or recklessly. The requisite general intent is merely the intent to engage in the underlying conduct. The State is not required to prove that the defendant intended the precise harm or result that occurred.
This appeal arises from events that occurred on March 11 and 12, 2010, in which the victim, Michael Holcom, was struck by Jennifer Johnson and was later beaten in his home by Andrew “A.J.” Haught, allegedly at Johnson’s request. On April 1, 2010, Johnson was charged convicted of misdemeanor battery and aggravated battery by aiding and abetting. Id. at 872. She appealed her convictions.
Conflicting testimony was presented at trial. At the bar, Johnson met two men, brothers A.J. Haught and Chad Haught, and she introduced the men to Darci Drake. Drake’s boyfriend, Andy Didas, was also at the bar. The entire group eventually went over to Drake’s house. Id. Johnson then left the house to meet up with Holcolm but returned a short time later upset. Drake testified that Johnson said she had hit Holcolm because she thought he was cheating on her. Haught testified that Johnson told him that Holcolm had hit her. A.J. testified that he, his brother, and Didas went over to Holcom’s house after Drake and Johnson had asked them to do so. He testified that Drake wanted them to talk to Holcom, but Johnson said, “No, I want you to take care of it for me.” Id. at 874. A.J. testified that he took Johnson’s statement to mean that she wanted the men to beat up Holcom. According to A.J., Drake began to give directions to Holcom’s house, but Johnson gave more specific directions, including the street address, landmarks, which door to use to enter the house, which door within the house led to Holcom’s room, and where in Holcom’s room the light switch was located. Id. Johnson denied knowing Haught went to Holcomb’s house and she also denied that she asked anyone to “take care of” Holcolm. Id. at 877.
Holcom’s left cheekbone was broken in several places, and his upper jaw was totally disassociated from the rest of his face. Holcom underwent surgery to repair these injuries, which involved affixing titanium plates to realign bone fragments and wiring his upper jaw to his lower teeth. Id. at 876.
K.S.A. 21–3414(a)(1)(A) states that aggravated battery is “intentionally causing great bodily harm to another person or disfigurement of another person.” Kansas courts have held that aggravated battery is a general intent crime. Id. at 879. “The requisite general intent is merely the intent to engage in the underlying conduct. The State is not required to prove that the defendant intended the precise harm or result that occurred.” Id. at 880.
Under K.S.A. 21–3201, criminal intent may be established where the defendant’s conduct is intentional or reckless:
“Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.
“Intentional conduct is conduct that is purposeful and willful and not accidental….
“Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” Id.
“From the foregoing evidence, a rational factfinder could reasonably infer that Johnson was very upset about the affair between Holcom and Deters and that when she asked A.J. to “take care of it,” she meant for him to beat Holcom rather than to simply get Holcom’s side of the story. Id. at 886. A rational factfinder could further infer that Johnson’s directions to Holcom’s house, including entry through a side door and the location of Holcom’s room within the house, were given so that the men could take Holcom by surprise rather than confront him openly and constituted advice on how to commit the crime. Id. at 887. Although there is evidence in the record which supports a different conclusion, it was the jury’s prerogative to determine witness credibility, the weight of the evidence, and any reasonable inferences that may be drawn from the evidence. Considering the evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence to support Johnson’s conviction of aggravated battery by aiding and abetting.” Id.
If you have been charged with Aggravated Battery and you have questions feel free to contact our office for a consultation.
What Is Disfigurement in Aggravated Battery Under Kansas Law?
In Kansas, aggravated battery is a serious offense, particularly when it involves "disfigurement." Understanding what qualifies as disfigurement in the context of aggravated battery is crucial for anyone facing such a charge, as it can mean the difference between a misdemeanor and a felony. Under Kansas law, aggravated battery is defined by K.S.A. 21-5413 and can include situations where the victim suffers from disfigurement, but what exactly does this term mean in legal terms?
Kansas Law on Aggravated Battery
Aggravated battery, as defined in K.S.A. 21-5413, occurs when someone intentionally causes:
Great bodily harm to another person, or
Disfigurement of another person.
The distinction between aggravated battery and the lesser offense of simple battery lies in the severity of the harm caused. While simple battery might involve minor or temporary injuries, aggravated battery requires either significant bodily harm or permanent disfigurement.
What Is Disfigurement?
Disfigurement refers to injuries that permanently alter a person’s physical appearance, often leaving visible scars, burns, or other long-lasting damage. However, Kansas law does not offer a strict legal definition of disfigurement. Instead, the courts evaluate each case individually, considering the nature and extent of the injuries.
In State v. Moore, the Kansas Supreme Court addressed the issue of disfigurement in the context of an aggravated battery charge. In this case, the defendant, Larry Moore, was accused of assaulting his girlfriend, T.M., by burning her with a hot iron, causing significant injuries to her breast, legs, and inner thighs. Photographs presented during the trial showed that T.M. had visible burn marks on her body even weeks after the incident. These injuries were considered significant enough by the court to meet the threshold for disfigurement, rather than mere "bodily harm" required for simple battery.
Key Findings from State v. Moore
Evidence of Disfigurement: In State v. Moore, the victim’s injuries included permanent scarring, which the court determined to be consistent with disfigurement. Photos of the burns and testimony from both the victim and a police officer helped establish that the injuries were more than minor.
Distinguishing Disfigurement from Minor Injuries: The court in Moore emphasized that disfigurement must be more severe than minor injuries like bruising or cuts. In this case, the burns caused by the hot iron were considered more than slight or moderate harm, and they resulted in visible, long-term damage to the victim’s body.
Jury’s Role in Determining Disfigurement: Whether an injury constitutes disfigurement is typically a question for the jury to decide. They must consider whether the harm is substantial enough to be classified as disfigurement, based on the evidence presented at trial.
Difference Between Aggravated Battery and Simple Battery
The difference between aggravated battery and simple battery is significant in Kansas law. Simple battery, under K.S.A. 21-5412, involves bodily harm, which is generally defined as slight or temporary injuries, such as minor bruising or cuts. On the other hand, aggravated battery involves either great bodily harm or disfigurement, meaning the injuries are severe, long-lasting, or permanent.
For example:
A person who suffers minor bruises in a physical altercation might see their assailant charged with simple battery.
If the same person were burned, scarred, or disfigured permanently, the charge would likely be aggravated battery due to the severity of the injury.
What Does This Mean for Defendants?
If you are facing an aggravated battery charge in Kansas involving disfigurement, the prosecution must prove that the injuries you caused meet the legal standard for this type of serious harm. As State v. Moore demonstrated, the courts look closely at evidence such as medical records, photographs of injuries, and witness testimony to determine whether the injury amounts to disfigurement.
However, defendants can argue that the injuries do not rise to the level of disfigurement or great bodily harm and instead should be classified as bodily harm, which could lead to a reduced charge of simple battery.
Penalties for Aggravated Battery with Disfigurement
If convicted of aggravated battery involving disfigurement, you could face severe penalties, including:
Prison time: Aggravated battery is classified as a person felony, with penalties ranging from several years to decades in prison, depending on the circumstances.
Fines: Significant fines can accompany a conviction.
Criminal record: A felony conviction will result in a permanent criminal record, which can affect your employment prospects, housing, and other aspects of life.
Defending Against Aggravated Battery Charges
Defending against a charge of aggravated battery often involves challenging the severity of the injury. A skilled attorney can gather evidence to show that the injuries were minor or temporary, aiming to reduce the charge to simple battery. This defense could be crucial in avoiding the more serious penalties associated with disfigurement or great bodily harm
.
Conclusion
In Kansas, disfigurement is a key factor in distinguishing aggravated battery from lesser charges. Permanent scars, burns, and other long-term injuries can elevate a battery charge to the felony level, carrying harsh penalties. Understanding the definition of disfigurement and how it applies to your case is critical for mounting a defense. If you or someone you know is facing an aggravated battery charge involving disfigurement, it’s essential to consult with an experienced criminal defense attorney who can help navigate the complexities of the case and work toward the best possible outcome.
If you’re dealing with an aggravated battery case and need guidance, contact our law firm today for a consultation. We have the experience and knowledge to help defend your rights and protect your future.
Is Battery a Lesser Included Offense of Domestic Battery?
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. Harris, 2011, 264 P.3d 1055, 46 Kan.App.2d 848
This case addresses the following issue:
Is battery a lesser included offense of domestic battery?
In December 2009, Stephanie Kemp and Harris got into an argument inside the residence they shared. During the argument, Harris stomped on Kemp’s foot with steel-toe boots. Subsequently, Kemp left the residence called law enforcement. A sheriff’s deputy arrived at the scene and spoke to Kemp about the incident. The deputy also noticed that Kemp’s left foot was red and swollen with a large bump near the pinky toe. The deputy then spoke with Harris, after which Harris was taken into custody and ultimately charged and convicted of domestic battery (second offense), a class A person misdemeanor. Id. He then subsequently appealed his conviction.
“Harris argued on appeal that his conviction should be reversed because the State failed to present any evidence showing that the victim was 18 years old or older at the time of the alleged incident—an essential element of the crime of domestic battery. The State does not directly confront Harris’ argument, but contends that his case should be remanded to the district court with directions that judgment be entered against him for misdemeanor battery and that he receive a new sentence for that crime.” Id.
Our Supreme Court has stated that “when a criminal defendant has been convicted of a greater offense, but evidence supports only a lesser included offense, the case must be remanded to resentence the defendant for the lesser included offense.” State v. Wilt, 273 Kan. 273, Syl. ¶ 3, 44 P.3d 300 (2002). Thus, the resolution of this appeal depends on whether misdemeanor battery is a lesser included offense of domestic battery. This raises a question of law subject to unlimited review. Id.
Under K.S.A. 21–3107(2), the defendant may be convicted of either the crime charged or a lesser included crime, but not both. Id. A lesser included crime is a lesser degree of the same crime or a crime where all of the elements of the lesser crime are identical to some of the elements of the crime charged. K.S.A. 21–3107(2)(a) and (b). Id. at 1057
Domestic battery is defined as follows: “(1) Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or (2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.” K.S.A. 2009 Supp. 21–3412a(a). “Family or household member” is defined as persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time.
In comparison, battery is defined as: “(1) Intentionally or recklessly causing bodily harm to another person; or (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” K.S.A. 21–3412(a). Id.
In State v. Presha, No. 92,066, 2005 WL 578490 (Kan.App.) (unpublished opinion), rev. denied 279 Kan. 1009 (2005), the court concluded that battery was a lesser included offense of domestic battery because all of the elements of battery were identical to some of the elements of domestic battery. Id. “Accordingly, the court concluded that the defendant’s conviction for domestic battery should be reduced to battery and that he should receive a new sentence for that crime.” Id.
“In Perez–Rivera the court reversed the defendant’s conviction for domestic battery after it determined that the State had failed to establish at trial that the victim was 18 years old or older when the altercation occurred.” Id. This Court found the panel’s decision in Presha persuasive and concluded that battery is a lesser included offense of domestic battery. Id.
For the reasons discussed above, the Court reversed Harris’ conviction for domestic battery, setting aside the sentence imposed and the fine that was levied. However, they remanded his case to the district court with directions that Harris be convicted and sentenced for the crime of battery under K.S.A. 21–3412, a class B person misdemeanor. Id. at 1056