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.