State v. Duncan
| Decision Date | 20 April 1979 |
| Docket Number | No. 50394,50394 |
| Parties | STATE of Kansas, Appellee, v. David Lee DUNCAN, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Assaults with a firearm upon each of several law enforcement officers occurring during one episode, but at different times, constitute separate offenses of aggravated assault upon each of the law enforcement officers.
2. There is no assault if there is no intentional threat or attempt to do bodily harm.
3. There is no assault if the victim is not in immediate apprehension of bodily harm.
4. A person is not in immediate apprehension of bodily harm if that person is
unaware of conduct of the defendant that would constitute an intentional threat or attempt to do bodily harm.
William J. Kelly, Independence, for appellant.
Glenn E. Casebeer, Jr., Asst. County Atty., Paul D. Oakleaf, County Atty. and Robert T. Stephan, Atty. Gen., for appellee.
Before ABBOTT, P. J., and REES and MEYER, JJ.
Defendant was convicted on three counts of aggravated assault on a law enforcement officer (K.S.A. 21-3411) and one count of burglary (K.S.A. 21-3715). Upon imposition of K.S.A. 21-4504, the Habitual Criminal Act, the sentences imposed were three concurrent terms of not less than ten nor more than forty years of aggravated assault on a law enforcement officer and a consecutive term of not less than four nor more than twenty years for burglary. Defendant appeals.
We will briefly summarize relevant facts, first in summary and later as incident to our discussion of issues. Before daylight on December 23, 1977, defendant triggered a silent alarm in a pawn shop on the first floor of a business building in Independence, Kansas. Four officers responded; three were in uniform and one was in street clothes. During the events leading up to his arrest and while inside the building, defendant fired three rounds from a .357 magnum that were heard by the four officers. One shot was fired at officer Sutton from a distance of six to eight feet while he and the defendant faced one another through a west exterior window. The physical evidence established that the bullet lodged in the window casing. After only such time as was required to release the safety, Sutton fired his shotgun twice through the window and into the building. Apparently defendant was not hit. The physical evidence also established that the second and third shots fired by defendant were at an inside back door hasp and padlock. One of the later bullets passed through the door and was found in an adjacent parking lot to the south of the building after ricocheting off a brick wall at the south side of the parking lot. Shortly after firing at the back door, defendant broke out another west exterior window and Sutton saw him waving or pointing his gun toward officer Bynum. Bynum's back was to the defendant. Seeing defendant at this latter window and that his brother officer was in apparent peril, Sutton fired another round from his shotgun. Defendant received pellet wounds. After hearing the sounds of the breaking of the window and Sutton's last shot, Bynum immediately turned around, observed the wounded defendant at the window and with Sutton apprehended defendant.
The other two officers at the scene were officers Kolb and Lowry. Bynum was the officer not in uniform.
Relying on Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), defendant argues that one act of aggravated assault, defendant's shot at Sutton, cannot support his conviction on three counts of aggravated assault. In Ladner, the defendant fired one shotgun blast into the front seat of an automobile occupied by two federal agents. The defendant was charged and convicted on two counts of assault on federal officers. The United States Supreme Court held that "the single discharge of a shotgun alleged by the petitioner in this case would constitute only a single violation." 358 U.S. at 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199.
Ladner is distinguishable insofar as it is directed at the State's allegations and interpretation of the evidence in the present case. The State contends there were three separate and distinct acts constituting aggravated assault defendant fired one round at Sutton, fired two rounds at the back door, one of which it is said could have been at Lowry, and waved or pointed his gun in the direction of Bynum. Assaults with a firearm upon each of several law enforcement officers occurring during one episode, but at different times, constitute separate offenses of aggravated assault upon each of the law enforcement officers. State v. Bradley, 215 Kan. 642, Syl. P 6, 527 P.2d 988 (1974).
Defendant next challenges the sufficiency of the evidence with regard to the counts of aggravated assault against officers Lowry and Bynum. Although somewhat otherwise posed in his brief and argument, this contention is multifaceted: (1) when defendant fired the three shots from within the building, he did not know of the presence at the scene of anyone other than Sutton, law enforcement officer(s) or civilian(s); (2) his shots at the back door were not attempts to do bodily harm to Lowry or Bynum or anyone else; (3) his single shot at or toward Sutton was an act that could be found to be one of aggravated assault but, if so, it was a single act that does not support convictions of aggravated assault on Lowry or Bynum; and (4) Bynum, with his back to defendant was unaware defendant waved or pointed his gun toward him and Bynum was not placed in immediate apprehension of bodily harm by reason of that particular conduct of the defendant.
The trial court instructions are not in the record on appeal. We must presume that as to Lowry and Bynum the jury was properly instructed concerning the necessary elements of proof for conviction of violation of K.S.A. 21-3411. These are found in PIK Crim. 56.15 and as here applicable they are as follows:
1. Defendant intentionally attempted to do bodily harm to (Lowry/Bynum);
2. Defendant had apparent ability to cause such bodily harm;
3. Defendant's conduct resulted in (Lowry/Bynum) being in immediate apprehension of bodily harm;
4. (Lowry/Bynum) was a uniformed or properly identified city law enforcement officer;
5. (Lowry/Bynum) was engaged in the performance of his duty;
6. Defendant used a deadly weapon.
Excluding the factor that the victim was a uniformed or properly identified law enforcement officer engaged in the performance of his duty, this itemization of the elements of the offense of aggravated assault has recently been restated in State v. Nelson, 224 Kan. 95, 97, 577 P.2d 1178 (1978).
Review of the evidence compels the conclusion that...
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