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.