WHEN IS DOMESTIC BATTERY A FELONY OFFENSE RATHER THAN A MISDEMEANOR OFFENSE?
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.
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