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.