Johnson County Domestic Battery Lawyer
Domestic Battery is one of the most commonly charged criminal cases in Johnson County, Kansas. In fact, it is one of the most common crimes than an average person is likely to be charged with in their life. Aside from DUI, there are more domestic violence cases than any other type of criminal cases. The simple fact of the matter is, if you find yourself charged with a domestic battery, you're not alone. If charged with Domestic Battery, you probably have several questions about what you're facing and how to handle the situation. Follow these simple rules to set yourself up for success in your case, all of the content on this page is written by a domestic battery attorney in Overland Park, not some artificial intelligence or law school student.
Calm down. You're in a tough situation but being emotional will only lead to poor decision making. Making emotional decisions without thinking out your case strategy first will make your domestic battery case more difficult. Now is the time to play chess not checkers. Before you open your mouth you need to talk to a lawyer.
Keep your mouth shut. Don't talk to anyone about the situation other than a lawyer. Telling other people about the problem can't be undone. You don't want to create witnesses but you also don't want to start up the rumor mill. There may be a time to talk about it down the road, now isn't that time. You never know who is your friend today but might have something to gain by divulging your information down the road. Only talk to your lawyer.
Get in contact with a lawyer. Now is the time to lawyer up, we are talking about a serious problem that can have life-long consequences. You need to treat an arrest in the same way you would if you found out you had a health problem. If you found out you had cancer you wouldn't hire the cheapest and most convenient doctor you found, you would do some research and hire a doctor that specializes in cancer treatment. Same with picking a lawyer, do your research and be prepared to pay for an expert. Be sure that you hire a domestic battery defense attorney. Just because you "really liked" your divorce attorney, doesn't make them qualified to practice criminal law.
Listen to the lawyer you hired. If your lawyer gives you advice, listen to it. It makes no sense to hire an expert and then not follow their advice. If you trust your lawyer and do what he or she says you will get a better outcome. You will also, almost certainly save your self money and heartache by listening to your attorney. You're attorney has swam in these waters before, let them guide you.
Don't compound the problem. Emotions are high when you find yourself feeling betrayed or not understood. Talk with your lawyer about your bond conditions and don't violate those conditions. Many a defendant has started out with a winnable domestic battery case and because they can't follow their bond they end up charged with very hard to win violation of protective order cases.
Below is a list of some common questions that people generally have when facing a domestic battery charge, feel free to read up on the charge or call to speak to an experienced lawyer.
What is domestic battery?
According to Kansas Law, domestic battery is knowingly committing an unprivileged touching in a rude angry or insulting manner to one’s spouse or former spouse, girlfriend/boyfriend or any person in which you are having or have had an intimate relationship with. In Kansas, a domestic battery case can be charged as either a misdemeanor or a felony depending on the assessment of the case by the prosecutor. The prosecutor will usually charge it as a misdemeanor unless there are some aggravating factors present in the case. Here are some examples of factors that could lead the prosecutor to charge you with a felony instead of a misdemeanor.
The abused/victim has suffered grave injuries that are potentially life threatening.
A dangerous weapon such as a knife or a gun was used during the fight or was used in threatening violence to the abused/victim.
The victim was strangled or their ability to breath was restricted.
There are past criminal records that indicate a violent past and/or there have been previous domestic violence conviction in the defendant's past.
Remember, the State prosecutor has wide discretion if charges will be filed against a defendant, they also have discretion as to what charges will be filed. The alleged victim is not the person, "pressing charges" against a defendant, only the State prosecutor has the power to charge someone with a crime. The term "pressing charges" really doesn't mean anything, it's just a made up Hollywood phrase for the movies.
What do I need to know if charged with Domestic Battery?
When you look at the domestic battery statute, it is long and difficult to understand. What it really comes down to is that a person can be found guilty or convicted of domestic battery if there is an unprivileged or unwanted touching between household members or a romantic couple if done in a rude, angry or insulting manner. It is a quite a bit different than most people think.
Most people think that for a domestic battery, there is going to be someone with physical bodily injuries, such as a black eye or bloody nose. For a run-of-the mill, domestic battery, this is not what usually happens. Less than 30% of the time does a defendant actually hurt their family member. Most of the time two people get into an argument, someone calls the cops, and someone gets arrested. In a majority of case the defendant doesn't even know they have potentially broken the law and they make the mistake of admitting there was physical contact because they think they have not done anything wrong. In most cases, all it takes is a touch. It can be as simple as putting a finger on your wife, your husband, your significant other in a fight, and just one finger can get you arrested for a domestic battery charge.
Take a look at the actual law:
Domestic battery. (a) Domestic battery is:
(1) Knowingly or recklessly causing bodily harm by a family or household member against a family or household member; or
(2) knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.
(b) Domestic battery is:
(1) Except as provided in subsection (b)(2) or (b)(3), a class B person misdemeanor and the offender shall be sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the offender to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program;
(2) except as provided in subsection (b)(3), a class A person misdemeanor, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a second time and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program. The offender shall serve at least five consecutive days imprisonment before the offender is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections; and
(3) a person felony, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a third or subsequent time, and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $7,500. The offender convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the offender has served at least 90 days imprisonment. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections. If the offender does not undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, the offender shall serve not less than 180 days nor more than one year's imprisonment. The 90 days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program.
(c) As used in this section:
(1) "Family or household member" means 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. "Family or household member" also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and
(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(A) "Conviction" includes being convicted of a violation of K.S.A. 21-3412a, prior to its repeal, this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(B) "conviction" includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(C) only convictions occurring in the immediately preceding five years including prior to July 1, 2001, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and
(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.
(d) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section or an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits only twice during any five-year period.
Why did I get arrested if my spouse doesn't want to "Press Charges?"
It doesn't matter if the victim wants to press charges or not. You may notice that on every single document that is filed with the court in your case reads, "The State of Kansas...vs Defendant," it says that because the State of Kansas is pressing charges, not the victim. This is perhaps the most difficult thing for people to understand, it's not you vs. the victim. It is the State vs You. This is wildly misunderstood because of TV shows and how the police officer nearly always asks the victim, "Do you want to press charges?" In reality, the State is the entity that decides if charges are brought against someone not the victim.
In many cases the alleged victim has no intention of getting the defendant in trouble, they do it by mistake. Most people are taught from an early age that if you get lost or need help, "Go find a policeman and tell them you are lost." This leads many people to believe that law enforcement is there to help solve their problems or to "calm things down" when a situation gets out of control. They aren't, they are there to investigate crimes and arrest people. Read. "Rethinking the role of the Police in our Communities" an article I published in the Kansas City Business Journal.
How serious is a Domestic Battery charge in Kansas?
Domestic battery in Kansas is no joke. It carries with it ancillary consequences besides just having to go to court and deal with a possible conviction, probation or being put in jail. There are other collateral consequences that impact your rights to carry or possess a firearm. It also carries with it the negative stigma associated with domestic battery. Ninety-five percent of the people that contact an attorney after being charged with domestic battery have no idea that what they did was a domestic battery. Most people are under the mistaken impression that there needs to be some sort of physical harm, a bloody nose, someone with a black eye, something like that. However, that is not the case.
When someone comes in with charges of domestic battery, usually, it is the person’s first offense for any type of crime. They are just getting ready to go down the rabbit hole of finding out how much trouble they are in.
A first time domestic battery charge is simply going to be a Class B misdemeanor. That does not sound like a big deal. However, because there is so much negative stigma associated with domestic battery, and it has ancillary consequences of losing constitutional rights, every time there is domestic battery allegation and someone gets arrested it’s a big deal. When a person gets arrested for domestic battery, they may spend the night in jail before they can get in front of a judge, and most people are not used to being thrown in jail.
After that, when they go in front of a judge, there is a state statute that prohibits the parties from having contact for seventy-two hours. When this happens the defendant will have a couple of days of not being able to even contact their spouse. In theory, the idea of no contact sounds good. This gives the parties time to cool down. When they take that into the real world, people have bills they have to pay. They have work they have to go to; they have kids they have to deal with. They have all these things they have to do as a team that all of a sudden is left to one person and the other person cannot reach out to help. All of a sudden, it is on one party to do everything and they cannot even contact the other party to split things up or to even communicate, “You get the kids this day and I’ll get the kids tomorrow.”
Since the defendant is going to be barred from contact, they are going to be barred from staying at the marital residence for that first seventy-two hours. This basically means they are homeless. When someone gets arrested, they never get arrested with their wallet, keys and everything ready to go. This means that when they get out of jail, they are in this huge problem because they have seventy-two hours where they cannot go home. Usually, the person will be out on bond. They will have to try to deal with that alone. They cannot talk to their most important partner in helping them, and they are trying to get hold of family or friends to bond them out. Then a person that is charged with domestic battery, they are going to be under bond conditions with possibly bond supervision. That means they basically have to be on probation while they are on bond. They are not going to be able to drink, they are not going to be able to have guns and they are not going to be able to stay at their regular residence for at least those seventy-two hours.
A lot of times, the judge will order just a straight no contact between the parties for an indefinite period of time. This means they might be going from talking to their wife everyday, to not at all and then dealing with not talking to kids for a month or two. Imagine what that does to their entire world.
How common is it for an ordinary person to get charged with Domestic Battery?
It scares most people when they actually find out how easy it is to get into trouble. I would say eighty to ninety percent of people who come in for a consult with an attorney for such a matter are regular everyday people. They could be a lawyer, teacher, doctor, or someone from any walk of life. It is very common for people to find themselves charged with a domestic violence offense. The simple fact is most crime that are not traffic related are perpetrated between family members or household members. It is far more likely that you will get into a fight with someone that you see everyday than a stranger. Domestic battery is a charge that translates across all demographics of society.
What are the most common scenarios you see where Domestic Battery charges are filed?
Johnson County has a very strict policy on domestic battery. An average domestic battery is a difficult thing to quantify, but in general it starts with mom and dad get into an argument and somebody is usually intoxicated, and things get out of hand. It can be a fight, it can be anything. I have seen people get a battery charge over a board game. People just get mad over something stupid and then next thing you know the cops get called.
The overwhelming majority of the time, people do not intend for their spouse or their significant other to get in trouble. They call the cops because they think that is the right thing to do at the time. They are excited or they may want to put some fear into the person that has touched them. Unfortunately, most jurisdictions policy is; If there is any evidence of domestic battery, someone is going to jail. Once you are in the system, it goes from there. We live in a world that involves conflict and sometimes conflict gets out of hand and spills over into varying degrees of violence. This holds true across all walks of life and all demographics of people.
Are Domestic Battery charges filed along with Divorce cases?
The two go hand-in-hand sometimes but is not as common as you might think. In a relatively low percent of the divorces there is going to be some sort of domestic violence involved. However, when domestic battery occurs it can be the catalyst for ending a relationship. A lot of the time, a criminal offense ends up being the straw that broke the camel’s back; “he laid his hands on me” or “she laid her hands on me.” They talk to their families, who then encourage them to get out of an unhealthy relationship. Sometimes an unscrupulous spouse who is seeking to get out of a marriage will try to get their spouse charged with a crime as they see it as a strategic advantage in the divorce case.
Can a Domestic Battery charge be used against someone falsely over things like Child Custody?
It happens. Some people will try to use it as leverage. For example, I once had a case where it was clear that the lady was trying to manipulate the system to get her husband out of the house during the divorce proceedings. She wanted him out of the house. Since there is a local rule in Johnson County that says you cannot kick the person out of the marital residence during a divorce, the only exception to that is if there is an allegation of domestic abuse.
In that case, both people already knew, “The marriage is over practically”. The husband and wife are spending the night in different rooms, different parts of the house. They do not talk to each other anymore, but they are still living together while a divorce is in the process. Then one of the parties decides, “I want to do whatever I can to get this person out of their house.” They go to their divorce lawyer and the divorce lawyer says, “Well, you can’t. The only way that’s ever going to happen is if there is a domestic abuse allegation”. Next thing you know, very conveniently, there is an allegation of domestic abuse.
In these types of cases, a judge will often grant one person sole occupancy of the marital residence during the divorce. That can get manipulated and it is also makes one person fight on two fronts. Instead of having to fight not only the divorce case, they are fighting the state’s case trying to put them in jail, while at the same time they are fighting their divorce case. It is a kind of divide and conquer tactic that a lot of people will try to use.
What are the possible punishments if found guilty of a domestic battery charge?
If the charge was a misdemeanor, the possible punishments are:
Imprisonment up to 6 months on a first offense (Class B misdemeanor)
Imprisonment up to 12 months on a second offense (Class A misdemeanor)
Probation and mandatory domestic violence rehab program completion.
Testing for Drugs and Alcohol
Fines, fees and court costs.
If the charge is a felony, the possible punishments are:
Level 4 = 36-172 Months Imprisonment
Level 5 = 31-136 Months Imprisonment
Level 7 = 11-34 Months Imprisonment
Level 8 = 7-23 Months Imprisonment
The judge has the discretion in deciding the punishment and jail time for any domestic violence cases. The judge will base the punishment on three factors, 1) the severity of the case 2) the criminal history of the defendant 3) any mitigating or aggravating facts presented to the judge.
Domestic Battery is a serious offense that carries serious jail time but more importantly, it can tarnish a person’s credibility and reputation. It can also affect employment prospects in the future as well as housing opportunities. So it is important for any defendant charged with a domestic violence charge to do everything possible to avoid a guilty verdict. The guidance and help of an lawyer on domestic violence cases can be the very thing that saves you from being found guilty of the offense.
If I am convicted of Domestic Battery will I lose my firearm rights?
In Kansas, most first time domestic violence related offenses are misdemeanors. In general, misdemeanor crimes are not as severe as most other types of crimes. The worst punishment that a person can receive on a misdemeanor crime is one year in the county jail. However, depending on the type of misdemeanor you are charged with you may have a lot more at stake than you think including losing one of your constitutional rights. Federal law prohibits purchase and possession of firearms and ammunition by someone that has been convicted of a crime involving domestic violence (even a misdemeanor charge involving domestic violence).
Legislation prohibiting the sale or possession of firearms by those with a domestic violence conviction was signed into law in 1996 and is commonly known as the “Lautenberg Amendment.” How the Lautenberg Amendment defines “domestic violence crimes,” is any misdemeanor crime that is against state, federal or tribal law in which the use or attempted use of physical force or threatened use of a deadly weapon is an element to the crime. The Lautenberg Amendment also requires that the defendant be in a domestic relationship with the victim, in the context of this law domestic relationship is very broadly defined.
If you look at the most common domestic violence offense in Kansas, Domestic Battery, you will see that the definition of a “domestic violence crime,” in the Federal law is arguably met. Kansas defines domestic battery in two ways:
Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or
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.
Both of these definitions arguably meet the definition of “domestic violence crimes,” as delineated in the federal law. In just a relatively short time (20 years) since the federal legislation was signed into law it has dramatically impacted the populations ability to legally obtain firearms. In fact, the baring of firearm purchases by the Lautenberg Amendment is the third most common reason that people are denied the ability to purchase a firearm only surpassed by denial because of a felony conviction or an open arrest warrant. Hundreds of thousands of people in the United States have attempted to legally purchase a firearm and been denied because of the Lautenberg amendment.
Many states have enacted their own laws that are more restrictive than the federal law that prohibit the possession or purchase of firearms. Dozens of states have made more restrictive laws, to date Kansas has not enacted any.
Can you have a jury trial on a Domestic Battery Case?
The answer to this question is found by reading: State v. Woolverton, 371 P.3d 941 (Kan. Ct. App. 2016).
Answer: You can have a jury trial but it's not automatic. You have to request a jury trial within 7 days. If you don't request it quickly then you are only allowed to have a bench trial.
This case explored the issue of whether a defendant charged with misdemeanor domestic battery had a constitutional right to a jury trial. In exploring this issue, the court held that a defendant in a misdemeanor case had a right to a jury trial under the Sixth Amendment of the U.S. Constitution if the offense was categorized as a serious offense but not if the offense was categorized as a petty offense. Id. at 942. Further, the court held that the offense in this case was a petty offense. Id. at 946.
In this case, the defendant was convicted of misdemeanor domestic battery in a trial to a judge (meaning the judge decided the case, not a jury). Id. at 943. As a result, the defendant asked for a do-over on the ground that he had a constitutional right to a jury trial. Id. Therefore, on appeal, the plaintiff argued that the domestic battery conviction was not a serious offense, while the defendant argued that the domestic battery conviction was a serious offense. Id.
The Court of Appeals of Kansas looked to the Sixth Amendment of the U.S. Constitution and the Kansas Constitution Bill of Rights where it stated that a defendant in a misdemeanor case had a right to a jury trial if the offense was categorized as a serious offense but not if the offense was categorized as a petty offense. Id. Therefore, the question to be answered in this case was whether misdemeanor domestic battery was a serious offense or a petty offense. Id. In order to answer this question, the court looked to a U.S. Supreme Court case. In Baldwin v. New York, the U.S. Supreme Court held that an misdemeanor offense could only be considered “serious” if it required a prison term of more than six months. Id. Therefore, according to Baldwin, a jury-trial right existed when the authorized penalty was more than six months in prison. Id. Additionally, the Baldwin court said that although they “presumed” for purposes of the Sixth Amendment that an offense with a maximum prison term of six month or less was petty, that presumption could be disproved. Id. Furthermore, the court stated that in order to disprove the presumption, the defendant must show that, in addition to the jail term of less than six months, the offense carried statutory penalties “so severe that they clearly reflected a legislative determination that the offense was a serious one.” Id. Essentially, the defendant had to show there were additional severe penalties other than just the prison time. Id. With this in mind, the court noted that there had not yet been a case in which the court found that a misdemeanor offense conviction with less than six months was a serious offense, thereby requiring a jury trial. Id. at 944.
According to the court, the maximum prison time for a misdemeanor domestic battery conviction was six months. Id. Therefore, the defendant had to disprove the presumption that the conviction was petty by showing that additional penalties caused it to be the severe. Id. In this case, the court specified that the additional penalties for misdemeanor domestic battery were having to pay a $200 to $500 fine and having the offender go through a domestic violence offender assessment. Moreover, the court concluded these additional penalties were not severe enough to require a jury trial. Id.
In conclusion, the defendant’s misdemeanor domestic battery conviction was a petty offense and the defendant did not have a constitutional right to a jury trial. Id. at 946.
Do you get to have a jury trial in a domestic battery case?
The answer is yes but only if you get the correct "demand for jury trial" on file in your case, timely. The timeline is also very short, you have seven days from the first day you are in front of a judge. What that means in the real world is you need to get yourself a domestic battery lawyer quickly whenever you are accused of one of these offenses.
What's the difference between a felony and misdemeanor domestic battery?
A first-time domestic battery is a class B misdemeanor. A second-time domestic battery is a class A misdemeanor if it occurs within 5 years of your first conviction. If you make the mistake of catching a third domestic battery with 5 years of your second conviction then you are likely to get charged with a person felony. The Kansas domestic battery law that outlines this is below:
21-5414. Domestic battery. (a) Domestic battery is:
(1) Knowingly or recklessly causing bodily harm by a family or household member against a family or household member; or
(2) knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.
(b) Domestic battery is:
(1) Except as provided in subsection (b)(2) or (b)(3), a class B person misdemeanor and the offender shall be sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the offender to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program;
(2) except as provided in subsection (b)(3), a class A person misdemeanor, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a second time and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program. The offender shall serve at least five consecutive days imprisonment before the offender is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections; and
(3) a person felony, if, within five years immediately preceding commission of the crime, an offender is convicted of domestic battery a third or subsequent time, and the offender shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $7,500. The offender convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the offender has served at least 90 days imprisonment. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the offender shall be required to undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, unless otherwise ordered by the court or department of corrections. If the offender does not undergo a domestic violence offender assessment conducted by a certified batterer intervention program and follow all recommendations made by such program, the offender shall serve not less than 180 days nor more than one year's imprisonment. The 90 days imprisonment mandated by this paragraph may be served in a work release program only after such offender has served 48 consecutive hours imprisonment, provided such work release program requires such offender to return to confinement at the end of each day in the work release program.
(c) As used in this section:
(1) "Family or household member" means 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. "Family or household member" also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and
(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(A) "Conviction" includes being convicted of a violation of K.S.A. 21-3412a, prior to its repeal, this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(B) "conviction" includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(C) only convictions occurring in the immediately preceding five years including prior to July 1, 2001, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and
(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.
(d) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section or an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits only twice during any five-year period.
How does this "counting up of priors" work in practice?
The answer to this case question is found by reading: State v. Johnson, 7 P.3d 1267 (Kan. Ct. App. 2000).
Answer: If you get a third domestic battery conviction within any five year period
This case explored the issue of when domestic battery was considered a felony offense rather than a misdemeanor offense. In exploring this issue, the court held that an individual who received a third domestic battery conviction within a span of five years was convicted of a felony domestic battery offense. Id. at 1267.
In this case, the defendant was convicted of felony domestic battery, criminal damage to property, and criminal trespass. Id. The defendant admitted to having two previous convictions for domestic battery. Id. Therefore, the trial court determined that the defendant’s current offense for domestic battery was a felony because of his two prior convictions for domestic battery. Id. On appeal, the defendant argued that under the plain language of the battery statute, he was guilty of only misdemeanor battery, not felony battery. Id.
In order to address the defendant’s argument, the court looked to the Kansas statute on domestic battery. Id. The domestic battery statute stated: (1) Upon a first conviction of . . . domestic battery, a person shall be guilty of a class B person misdemeanor; (2) If, within five years immediately preceding commission of the crime, a person is convicted of . . . domestic battery . . . a second time . . . such person shall be guilty of a class A misdemeanor; and (3) If, within five years immediately preceding commission of the crime, a person is convicted of . . . domestic battery . . . a third or subsequent time . . . such person shall be guilty of a person felony. Id. With this in mind, the defendant understood the statute to read that an individual needed three prior domestic battery charges before the fourth one becomes a felony. Id. Therefore, in the defendant’s case, he thought he should have been charged with a misdemeanor (under subsection (2)) because he only had two prior domestic battery convictions in the preceding five years. Id.
The Court of Appeals of Kansas acknowledged that the language in the statute was a bit unclear. Id. at 1268. According to the court, the phrase “within five years immediately preceding commission of the crime” was redundant. Id. Additionally, the court noted that the phrase was nonrestrictive, meaning the phrase was not essential to the meaning of the sentence. Id. Furthermore, the court noted that removing the nonrestrictive element from the sentence would leave, “If a person is convicted of a violation of this crime a third or subsequent time under circumstances which constitute a domestic battery, such person shall be guilty of a person felony.” Id. Nevertheless, the court noted that it was clear to them that the Kansas body who wrote the statute intended to increase the penalties for each successive offense. Id. Therefore, the defendant’s conviction of felony domestic battery was upheld. Id. at 1269.
In conclusion, the Kansas statute states that an individual will be convicted of a felony if he or she receives a third domestic battery conviction within a five-year span. Id. at 1267.
Are there other ways to get charged with a felony domestic battery, even without prior convictions?
Per the letter of the law, No. However, you can get charged with an aggravated domestic battery if during the course of a domestic battery you imped the victim's ability to breath. You can get charged with aggravated battery that is tagged a "DV case" if you seriously injure someone in the course of the domestic battery.
HOW OLD MUST THE VICTIM BE IN A DOMESTIC BATTERY CASE?
The answer to this question is found by reading: State v. Perez-Rivera, 203 P.3d 735 (Kan. Ct. App. 2009).
Answer: 18
This case explored the issue of how old a victim must be in a domestic battery case to uphold the defendant’s conviction. In exploring this issue, the court held that the victim must be 18 years or older in a domestic battery case. Id. at 735.
In this case, the defendant was charged with aggravated assault, felony domestic battery, and criminal damage to property. Id. at 736. The defendant’s wife testified that on the date of the alleged altercation, she was living with the defendant and they had been married for two and half years. Id. However, the wife did not state how old she was at the time of the incident, nor did the State (plaintiff) present any direct evidence regarding the wife’s age. Id. At trial, the defendant testified that he had married his wife in a Las Vegas ceremony and had been married for two and half years at the time of the incident. Id. At trial, the jury found the defendant guilty of domestic battery. Id.
On appeal, the defendant argued that the State presented insufficient evidence to convict him of domestic battery because the State failed to present evidence to show the wife was 18 years of age or older when the alleged incident took place. Id. In response, the State admitted that it failed to present direct evidence of the wife’s age, but argued the jury members could have inferred that the wife was 18 years or older based on her appearance, demeanor, and testimony at trial. Id.
In order to address the defendant’s argument, the Court of Appeals of Kansas first looked to the Kansas statute on domestic battery. Id. According to the statute, domestic battery involved “intentionally or recklessly causing bodily harm by a family or household member against a family or household member.” Id. Furthermore, the statute defined “family or household member” as “persons 18 years of age or older.” Id. In order for the jury to find the defendant guilty (which they did), they were instructed, among other things, that the State had to prove beyond a reasonable doubt that the defendant and his wife were family or household members. Id. at 737. In the instruction, the trial court told the jury that family or household members meant persons 18 years of age or older. Id.
The next step taken by the Court of Appeals of Kansas was to determine whether the State proved beyond a reasonable doubt that the wife was 18 years of age or older. Id. The State argued it presented circumstantial evidence which proved beyond a reasonable doubt that the wife was at least 18 years old at the time of the incident. Id. Based on this circumstantial evidence, the State argued the jury could have inferred the wife was at least 18 years old when the allege incident occurred because under Nevada law (where the two got married), a person must be at least 16 years old to marry (and they had been married for two and half years). Id. With this in mind, the court noted that the State’s arguments must be rejected. Id. According to the court, while a conviction may be sustained by circumstantial evidence, guilt may never be based on inference alone. Id. Furthermore, the court concluded that a jury cannot simply speculate or infer through its own observations or personal knowledge that an element of a crime had been proven. Id.
In conclusion, the State did not prove beyond a reasonable doubt that the wife was 18 years or older and the defendant’s conviction of domestic battery was reversed. Id.
What happens if the victim changes their story at trial?
This happens all the time. Mom and dad get in a fight, things get out of hand and then someone calls the cops. The alleged victim thinks that the cops will just come out and calm the situation down. In reality, someone is going to jail. The cops start talking to everyone and the more it becomes apparent that someone is going to jail, someone tells a story that makes it where they aren't the one in handcuffs. For some people the truth isn't exactly important when they are trying to stay out of handcuffs.
Shortly thereafter, everyone comes to their senses when they realize that their spouse is getting charged with domestic battery (a crime that could screw up their entire life) and the alleged victim wants to come forward and tell the truth. The defendant will then start asking, questions like this,
"What happens if the victim changes his/her story?"
"What happens if the victim comes in and tells the truth?"
"What happens if the victim testifies that this crime didn't occur?"
"What happens if the victim comes in and testifies that they lied to the police?
"What happens if the victim comes in and testifies they don't want the defendant in trouble?"
The answer to these questions are found by reading: State v. Dority, 324 P.3d 1146 (Kan. Ct. App. 2014).
Answer: It is possible that you can still be found guilty even if the alleged victim recants.
This case explored the issue of whether a trial judge could use his or her common knowledge and experience to ignore statements made by the victim at trial. In exploring this issue, the court held that a trial judge was not allowed to use his or her special knowledge of a particular subject to decide an issue without hearing evidence to support the judge’s findings. Id. at 1147-48. However, a trial judge was allowed to use his or her common knowledge and experience to determine the credibility of a witness and assess the weight of a witness’s testimony. Id.
In this case, the victim and her 4-month-old daughter went to the hospital after the daughter hit her head on the floor. Id. at 1148. While at the hospital, the victim told police she had been involved in an argument with the defendant (boyfriend and father). Id. The victim was interviewed by two separate police officers. Id. In both interviews, the victim stated that she and her boyfriend had been in a heated argument and that the defendant had pushed her to the ground and the daughter had fallen out of the victim’s arms and hit her head on the floor. Id. Eventually, the defendant was arrested for domestic battery. Id. At trial, the victim’s testimony differed from what she had told the two police officers. Id. The victim testified that she was the one who had hit the defendant and the daughter had received the head injury after falling off the couch two days prior to the incident. Id. Nevertheless, the trial court found the defendant guilty of domestic battery. Id. at 1149. In giving the verdict, the trial judge commented, “And using my common knowledge and experience, I can say it is absolutely not uncommon for the victims in these kinds of cases to come in at the time of trial and totally change their story around.” Id. at 1150. Furthermore, the trial judge found that the victim’s version of events she gave to the police were far more persuasive than her testimony at trial. Id. at 1149. Therefore, the trial court sentenced the defendant to a total of 18 months in jail. Id.
On appeal, the defendant argued that he did not receive a fair trial due to the trial judge’s stated beliefs about domestic violence victims. Id. at 1150. In particular, the defendant pointed to the one sentence in which the trial judge commented that based on his experience in this type of case, it was common for victims to recant their initial police reports when testifying at trial. Id. Therefore, the defendant claimed the trial court improperly relied on personal knowledge about domestic violence victims instead of relying on the evidence provided at trial. Id.
In addressing the defendant’s argument, the Court of Appeals of Kansas identified three points. Id at 1152. First, the court found that the trial judge merely noted a situation he had encountered previously in cases involving domestic battery. Id. Second, the court identified that an expert witness would not be required to testify that it was common for domestic violence victims to change his or her story prior to trial. Id. Third, the court concluded that the trial judge indicated that he was not basing his guilty verdict solely on his common knowledge and experience about domestic violence victims; rather, he was also considering the physical evidence. Id.
In conclusion, the Court of Appeals of Kansas held that the trial judge was allowed to use his common knowledge and experience in domestic battery cases to ignore the victim’s testimony at trial and instead use her police reports. Id.
IS DOMESTIC BATTERY A LESSER INCLUDED OFFENSE OF AGGRAVATED BATTERY?
The answer to this question is found by reading: State v. Carter, 395 P.3d 458 (Kan. Ct. App. 2017).
Answer: No.
This case explored the issue of whether domestic battery was a lesser included offense of aggravated battery. In exploring this issue, the court held that domestic battery was not a lesser include offense of aggravated battery. Id. at 464.
In this case, the defendant and his girlfriend sat outside of their house drinking beer with the defendant’s brother. Id. at 459. During the evening, a man stopped by the house and talked with the defendant about his recently deceased grandmother. Id. As a result of the conversation, the defendant became very agitated and the girlfriend and brother decided to leave the house to let the defendant calm down. Id. Upon arriving back at the house forty minutes later, the defendant accused the girlfriend and brother of having an affair. Id. After the girlfriend denied the affair, the defendant struck the girlfriend in the left eye. Id. The blow caused the girlfriend to fall to the floor, scream for help, and then lose consciousness. Id. Shortly after, a friend of the girlfriend came over to the house and the defendant admitted to hitting the girlfriend. Id. The friend then took the girlfriend to the hospital where she had to have emergency surgery. Id. As a result of the injury, the girlfriend lost sight in her eye and could no longer driver or work. Id. At trial, the defendant was charged with aggravated battery for knowingly causing great bodily harm or disfigurement upon the girlfriend. Id. at 460. At the conclusion of the evidence, the trial court instructed the jury on the lesser crime of misdemeanor battery (telling the jury that if they do not find the defendant guilty of aggravated battery, they can look to see if he is guilty of misdemeanor battery). Id. After deliberation, the jury found the defendant guilty of aggravated battery. Id.
On appeal, the defendant argued that the trial court should have instructed the jury on the lesser crime of domestic battery. Id. at 460. Furthermore, the defendant contended that the trial court’s failure to properly instruct the jury in this regard was clear error because the jury would have reached a different holding if the trial court had instructed the jury on domestic battery. Id.
In responding to the defendant’s argument, the Kansas Court of Appeals first defined “lesser included crime” as written by Kansas statute. Id. at 461. According to the Kansas statute, a lesser included crime was: (1) a lesser degree of the same crime, (2) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged, (3) an attempt to commit the crime charged, (4) or an attempt to commit a crime defined under (1) or (2). Id. With this in mind, the court noted that the only way domestic battery could be considered a lesser included offense of aggravated battery would be if all of the domestic battery elements were identical to some of the aggravated battery elements. Id. at 464.
In determining whether domestic battery was a lesser included offense of aggravated battery, the court looked at the domestic battery statute to determine if it shared all of the same elements as aggravated batter Id. After examining the domestic battery statute, the court noted that it required proof that the physical contact or bodily harm was caused by “a family or household member against a family or household member.” Id. Therefore, the court concluded that domestic battery did not share all of the elements of the aggravated battery statute, and thereby was not a lesser included offense of aggravated battery. Id.
Is pushing a family member during an argument enough for domestic battery?
There is a common misconception when it comes to domestic battery that the victim has to be harmed. People think that the victim has to have a bloody nose or a black eye before a defendant is going to get charged with a crime. That simply can't be more wrong. In Kansas, there doesn't have to be any physical manifestation of harm for a domestic battery to occur.
Is pushing someone enough, even if they aren't hurt or harmed in any way?
The answer to this question is found by reading: State v. Brown. 262 P.3d 1055 (Kan. Ct. App. 2011).
Answer: 100% Yes.
This case explored the issue of whether pushing a household (sharing a house) or family member in a heated argument resulted in a domestic battery. In exploring this issue, the court held that based on the evidence that the contact was made during an intense argument, a rational fact finder could have found beyond a reasonable doubt that the contact was done in a “rude, insulting, or angry” manner and that domestic battery occurred. Id. at 1057.
In this case, the defendant and his girlfriend were having a heated verbal argument in their home. Id. During the course of the argument, the defendant was trying to leave but the girlfriend would not let him go and blocked the only door in the home. Id. Eventually, the defendant pushed the girlfriend out of the way, and she fell down onto a couch. Id. The girlfriend was not injured. Id. Nevertheless, the police arrived at the home and the defendant was convicted of domestic battery and sentenced to probation. Id. Following the conviction, the defendant appealed the case to the Court of Appeals of Kansas. Id.
The defendant’s main argument was that the facts did not support a conviction for domestic battery. Id. Since the defendant was challenging the sufficiency of the evidence, the court stated that they needed to review all the evidence in the light most favorable to the plaintiff (in this case, the State of Kansas) to determine whether they were convinced that a rational fact finder could have found the defendant guilty beyond a reasonable doubt. Id. In addressing the defendant’s argument, the Court of Appeals of Kansas looked to the definition of domestic battery which read, “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.” Id. In this case, the defendant and girlfriend lived together in the same home, so they were considered “household members.” Id. Therefore, the court addressed whether the defendant’s actions met the “rude, insulting, or angry manner” provision of the statute. Id. According to the court, the defendant intentionally caused physical contact with the girlfriend. Id. Additionally, the court noted that there was evidence that the defendant and girlfriend were in an extremely heated and angry verbal exchange at the time of the contact. Id. Further, the court identified that the defendant’s push was hard enough for the girlfriend to fall down onto the coach. Id. Moreover, the court stated the evidence that the girlfriend was in the defendant’s way was irrelevant in determining whether the contact was done in a rude, insulting, or angry manner. Id.
Based on the evidence that the contact was made during an intense argument, the court held that a rational fact finder could have found beyond a reasonable doubt that the contact was done in a “rude, insulting, or angry” manner and that domestic battery occurred. Id.
Will I go to jail if convicted of a Domestic Battery?
The answer to this question is found by reading: State v. Skillern, 288 P.3d 147 (Kan. Ct. App. 2012).
Answer: There is no mandatory jail time a defendant must serve if convicted of a first-time domestic battery.
This case explored the issue of whether a defendant convicted of a class B misdemeanor domestic battery (first time offender) was required to serve a minimum of 48 hours in prison before being granted probation (period of supervision instead of serving prison time). In exploring this issue, the court held that a first-time offender of domestic battery was not required to serve 48 hours in prison before being granted probation. Id. at 148.
In this case, the defendant and her boyfriend were involved in a heated argument and the defendant slapped him in the face. Id. As a result, the defendant pled guilty to and was convicted of one count of domestic battery, a class B misdemeanor. Id. Furthermore, it was the defendant’s first conviction of domestic battery. Id. At trial, the court looked to the Kansas statute on domestic battery in determining the defendant’s sentencing and concluded that she had to serve 48 hours in prison before being granted probation. Id.
On appeal, the defendant argued that the trial court erred in determining that the Kansas statute required her to serve 48 hours in prison before being placed on probation. Id. at 148-49. In defending her argument, the defendant quoted the applicable part of the Kansas statute which read, “Domestic battery is a class B misdemeanor and the offender shall be sentenced to not less than 48 hours.” Id. at 148. According to the defendant, the statute required only that she be sentenced to at least 48 hours imprisonment, not necessarily that she had to serve the 48 hours. Id. Additionally, the defendant noted that the two other subsections within the domestic battery statute directly stated how long a defendant had to spend in prison before probation was granted. Id. For example, in the class A misdemeanor domestic battery subsection, the offender had to serve at least five consecutive days imprisonment before being granted probation. Id. Furthermore, in the felony domestic battery subsection, the offender was not eligible for release on probation. Id. According to the defendant, if the legislature (group of people who wrote the statute) directly addressed how long an offender had to spend in prison in the other two instances, they would have directly addressed that point in the class B misdemeanor domestic battery subsection. Id. Since the legislature did not address this point, the defendant contended that the statute should not be read as requiring 48 hours in prison before being granted probation. Id.
In responding to the defendant’s arguments, the Court of Appeals of Kansas found the arguments persuasive. Id. at 150. The court acknowledged that there was no provision in the statute that the defendant actually had to serve the 48 hours in prison. Id. Moreover, the court mentioned that their decision was influenced by the legislature directly addressing in the other two subsections (class A misdemeanor and felony) how long an offender had to spend in prison before being granted probation. Id.
In conclusion, the court held that a first-time offender convicted of class B misdemeanor domestic battery was not required to spend 48 hours in prison before being granted probation. Id.
What does this mean to you if you are charged with Domestic Battery?
It doesn't mean that is impossible to go to jail on a domestic battery case, it just means that it isn't required that a person convicted of a domestic battery must serve jail time. Remember, these cases are very fact specific and domestic battery can entail a wide range of culpable conduct. From the outset of a domestic battery case you need to sit down with an attorney that has experience with domestic battery cases and go over your defenses and options.