Opinion
No. 107,667.
2013-04-5
STATE of Kansas, Appellee, v. Brenton Lee HOBBS, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Meryl Carver–Allmond, of Capital Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Meryl Carver–Allmond, of Capital Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM:
A jury convicted Brenton Lee Hobbs of one count of aggravated battery after he hit a man in the face in the parking lot of a bar. Hobbs hit the victim so hard that his body immediately went rigid and fell backwards. As he fell, the victim hit his head on the rear bumper of a car and then on the pavement. As a result, the victim fractured his skull and suffered brain damage. On appeal, Hobbs challenges the sufficiency of the evidence supporting his conviction. Based on our review of the record in light of Kansas law, we conclude that the jury had sufficient evidence to support the aggravated battery conviction. Thus, we affirm.
Facts
On the night of August 11, 2011, Scott Nienke went to Desperado's Bar in Emporia with his nephew, Michael Watson. Nienke was a patron of the bar, and Watson worked as a DJ—in addition to performing other jobs—at the bar. Sometime between 10 and 11 p.m., Hobbs came to the bar with a group of people. Because Hobbs did not have identification, Watson told him he could come in but that he could not drink alcohol in the bar. After midnight, Watson saw Hobbs with an alcoholic drink in his hand. Accordingly, Watson told Hobbs he had to leave and escorted him to the front door.
At some point, Hobbs became upset about having to leave the bar and began to yell obscenities. In response, Watson asked Clint Crawford to escort Hobbs outside to make sure there were no further problems. Outside the bar, Nienke was smoking a cigarette and talking to Elsie Thompson. As Hobbs came out the front door with Crawford behind him, he headed straight to where Nienke and Thompson were standing. Nienke told Hobbs to calm down, leave, and come back another day.
Without warning, Hobbs hit Nienke in the face with his fist. Immediately, Nienke's head snapped back, and his body went stiff. As he fell backwards, Nienke hit his head on the bumper of a car before hitting his head on the pavement under the car. Thompson unsuccessfully attempted to rouse Nienke as he lay unconscious on his back, bleeding from the ears.
Crawford then went back inside the bar and told Watson that he needed to come outside. When Watson went out the front door, he saw Nienke lying unconscious and bleeding on the ground. Crawford told Watson that Hobbs—who was walking quickly away from the scene—was the person who had hit Nienke. Watson and two men who had been in the bar were able to catch up with Hobbs and to hold him on the ground until the police arrived.
Nienke was taken to the emergency room at Newman Regional Health Center, where he was diagnosed with a fractured skull and a traumatic brain injury. He was subsequently flown by helicopter to Overland Park Regional Medical Center, where he underwent brain surgery. Nienke was in a coma and remained on a ventilator for 3 weeks. Moreover, Nienke was unable to speak or swallow correctly and had no movement on his left side.
Nienke remained in the care of the Overland Park Regional Medical Center for about a month before being transferred to the Topeka Rehabilitation Center. At the time of trial, Nienke was a patient at the Meadowbrook Rehabilitation Center in Gardner and was still unable to speak, swallow correctly, or walk without assistance.
Hobbs was charged with one count of aggravated battery on August 15, 2011, and a 2–day jury trial commenced on December 20, 2011. After the parties rested, the district court instructed the jury on the elements of aggravated battery. Specifically, the jury was instructed:
“The defendant is charged in count 1 with the crime of aggravated battery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally caused great bodily harm or disfigurement to another person;
“2. That this act occurred on or about the 12th day of the [ sic ] August, 2011, in Lyon County, Kansas.
“Aggravated battery as defined above is a general intent crime. The requisite general intent is merely the intent to engage in the underlying conduct which results in great bodily harm. The State is not required to prove that the defendant intended the precise harm or result that occurred.”
Ultimately, the jury found Hobbs guilty of aggravated battery, and he was sentenced to imprisonment for a term of 43 months.
Analysis
On appeal, Hobbs contends there was insufficient evidence to support his aggravated battery conviction. In particular, Hobbs argues that the State failed to present sufficient evidence to establish the elements of K.S.A.2012 Supp. 21–5413(b)(1)(A). When the sufficiency of evidence is challenged in a criminal case, we review the claim by looking at all the evidence in a light most favorable to the prosecution in order to determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Furthermore, to the extent that the issue presented involves an interpretation of law, our review is unlimited. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
In the present case, Hobbs was charged under K.S.A.2012 Supp. 21–5413(b)(1)(A), which states that aggravated battery is “[k]nowingly causing great bodily harm to another person or disfigurement of another person.” Under K.S.A.2012 Supp. 21–5202(i), “[a]ll crimes ... in which the mental culpability requirement is expressed as ‘knowingly,’ ‘known,’ or ‘with knowledge’ are general intent crimes.” Thus, based on the plain language of K.S.A.2012 Supp. 21–5413(b)(1)(A) and K.S.A.2012 Supp. 21–5202(i), we conclude that aggravated battery is a general intent crime.
Although Hobbs was charged under the recodified criminal code, we find support for this conclusion from prior caselaw finding that aggravated battery is a general intent crime. See State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003). In Gross v.. State, 24 Kan.App.2d 806, 808, 953 P.2d 689,rev. denied 264 Kan. 821 (1998), this court held that aggravated battery—under the former K.S.A. 21–3414—requires “only that the underlying act be intentional rather than accidental; there is no longer a statutory requirement of a specific intent to injure.” See also State v. Johnson, 46 Kan.App.2d 870, Syl. ¶ 2, 265 P.3d 585 (2011) (finding that because aggravated battery is a general intent crime, it only requires proof of intent to engage in the underlying conduct).
At oral argument, Hobbs relied on State v. Frye, 294 Kan. 364, 374–76, 277 P.3d 1091 (2012), in support of the position that the evidence presented against him at trial was insufficient to support a conviction for aggravated battery. Specifically, Hobbs points to the portion of the Frye opinion that states aggravated battery “does require an intent to do the harm that results. Cf. State v. Deal, 293 Kan. 872, 269 P.3d 1282, 1284 (2012) (focusing on the distinction between an intention to act, i.e., to hit, and an intention to obtain a result, i.e., to kill).” Frye, 294 Kan. at 376. As Hobbs' counsel candidly recognized during oral argument, however, this statement in Frye is dicta. Furthermore, the Deal case cited in Frye dealt with determining the specific intent—or lack thereof—of second-degree murder, not aggravated battery. See State v. O'Rear, 293 Kan. 892, 899, 270 P.3d 1127 (2012) (holding that second-degree murder is—unlike aggravated battery—a specific intent crime).
Based on the plain language of K.S.A.2012 Supp. 21–5413(b)(1)(A) and K.S.A.2012 Supp. 21–5202(i), we conclude that aggravated battery is a general intent crime in which only the underlying act that caused great bodily harm or disfigurement must be intentional. Here, there is substantial evidence in the record that Hobbs intentionally punched Nienke in the face, causing great bodily harm. In fact, the record reflects that Hobbs struck Nienke so hard that his body immediately became rigid and fell backward. In doing so, Nienke's head struck the bumper of the car that he was standing next to before he hit the ground. Upon hitting the ground, Nienke was unconscious and bleeding from the ears. As a result of the blow struck by Hobbs, Nienke suffered brain damage and permanent injury.
Accordingly, we conclude that there is sufficient evidence in the record upon which a jury could find beyond a reasonable doubt that Hobbs intentionally hit Nienke with such force as to cause him great bodily harm.
Affirmed.