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:

  1. Inflicts great bodily harm upon him; or
  2. Causes any disfigurement or dismemberment to or of his person; or
  3. 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.