State v. Russell, 52129

• Decision Date: 17 January 1981
• Docket Number: No. 52129,52129
• Citation: 229 Kan. 124,622 P.2d 658
• Parties: STATE of Kansas, Appellant, v. Ty W. RUSSELL, Appellee.
• Court: Kansas Supreme Court

Page 658

622 P.2d 658

229 Kan. 124

STATE of Kansas, Appellant, v. Ty W. RUSSELL, Appellee.

No. 52129.

Supreme Court of Kansas.

Jan. 17, 1981.

Syllabus by the Court

1. K.S.A. 8-1568 (fleeing or attempting to elude a police officer) is not a lesser included offense of K.S.A. 21-3411 (aggravated assault on a law enforcement officer).

2. K.S.A.1979 Supp. 21-3108(3) is discussed and held not to bar a Kansas prosecution for driving while under the influence of intoxicating liquor, although defendant had been previously convicted in the State of Missouri on a similar charge which was closely related in time to the Kansas charge.

3. In an appeal by the State from an order of the district court dismissing two counts of an information, the record is examined and it is held : The trial court erred in dismissing the two counts, all as is more fully set forth in the opinion.

Michael B. Buser, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Dennis W. Moore, Dist. Atty., and G. Joseph Pierron, Asst. Dist. Atty., were with him on the brief for appellant.

James A. Wheeler, Olathe, argued the cause and was on the brief for appellee.

McFARLAND, Justice.

This is an appeal by the prosecution pursuant to K.S.A.1979 Supp. 22-3602(b) (1) from the trial court's dismissal of two counts of an information.

In the early morning hours of September 28, 1979, a Mission, Kansas, police officer observed a pickup truck being operated by defendant near the junction of Interstate 35 and Interstate 635. The officer's radar equipment clocked the vehicle at 73 miles per hour in a 55-mile per hour zone. The officer activated his emergency equipment and pulled in behind the pickup. Defendant did not stop and accelerated to 100 miles per hour. The officer pursued the pickup and the high speed chase proceeded out of Johnson County into Kansas City, Missouri, then back into Wyandotte and Johnson Counties. As the chase progressed, officers from various Kansas and Missouri jurisdictions became involved. The pursuit covered some forty-five miles and lasted approximately forty minutes.

While in Missouri defendant attempted to run a Missouri police vehicle off the road. In Kansas, toward the end of the chase, while officers were attempting to box in defendant's vehicle, defendant allegedly rammed a police vehicle operated by a Merriam, Kansas, officer and forced it off the road. Shortly thereafter the pickup was halted and defendant was arrested. He was charged with: (1) aggravated assault on a law enforcement officer (K.S.A. 21-3411); (2) fleeing or attempting to elude a police officer (K.S.A. 8-1568); and (3) driving while under influence of intoxicating liquor or drugs (K.S.A.1979 Supp. 8-1567). All three charges arose from the events in Johnson County.

On the day of trial, April 14, 1980, defendant entered his guilty plea to Count II fleeing or attempting to elude a police officer. Upon the trial court's acceptance of his guilty plea to the one count, defendant moved to dismiss the other two counts. The motion was sustained and the State appeals. The two counts were dismissed on different grounds and, accordingly, must be considered separately.

The first issue is whether the trial court erred in dismissing Count I on the ground that Count II (fleeing or attempting to elude a police officer), to which defendant had pled guilty, was a lesser included offense of Count I (aggravated assault on a law enforcement officer).

K.S.A. 21-3107(1) and (2) provides:

"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

"(a) A lesser degree of the same crime;

"(b) An attempt to commit the crime charged;

"(c) An attempt to commit a lesser degree of the crime charged; or

"(d ) A crime necessarily proved if the crime charged were proved."

Specifically, the trial court held:

"The Court is of the opinion that under the proffered facts of this case that Count II of the Information, fleeing or attempting to elude a police officer, is a lesser included offense of aggravated assault of a police officer as alleged in Count I because of the fact that the alleged weapon is the automobile that the defendant was driving while he was attempting to elude police officers."

K.S.A. 21-3107(2) was construed in State v. Arnold, 223 Kan. 715, 716, 576 P.2d 651 (1978), as follows:

"Lesser included offenses fall into three categories under our statute. The first is the offense which is merely a lower degree of the offense charged or subparagraph (a) under the statute. The second category is the attempt as a lesser included offense or subparagraphs (b) and (c) under the statute. The third category is the offense which is necessarily committed by the defendant in perpetrating the crime charged or subparagraph (d) under the statute. Under this section it is impossible to commit the greater offense without first having committed the lesser offense. The offense must not require some additional element which is not needed to constitute the greater offense. In other words, there must be 'identity of elements.' (See Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L.J. 40, 41-45 (1976).)

"Our court has consistently construed subparagraph (d ) to mean a lesser included offense must not require proof of any element not necessary in the greater crime charged. (See State v. Daniels, 223 Kan. 266, 573 P.2d 607; and State v. Bailey, 223 Kan. 178, 573 P.2d 590.)"

Does fleeing or attempting to elude a police officer (K.S.A. 8-1568) require some additional element which is not needed to constitute aggravated assault on a law enforcement officer (K.S.A. 21-3411)? We conclude that it does. K.S.A. 8-1568 provides:

"(a) Any driver of a motor vehicle who willfully fails or refuses to bring his or her vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by the police officer may be hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying his or her badge of office, and the officer's vehicle shall be appropriately marked showing it to be an official police vehicle."

The gist of the proscribed conduct is a driver's failure to stop his motor vehicle after having been signaled to stop by a police officer in a police vehicle or attempting to elude the police vehicle.

The statutes relative to aggravated assault on a law enforcement officer are:

"21-3411. Aggravated assault on a law enforcement officer. Aggravated assault of a law enforcement officer is an aggravated assault, as defined in section 21-3410, committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty."

"21-3410. Aggravated assault. Aggravated assault is:

"(a) Unlawfully assaulting or striking at another with a deadly weapon; or

"(b) Committing assault by threatening or menacing another while disguised in any manner designed to conceal identity; or

"(c) Willfully and intentionally assaulting another with intent to commit any felony."

"21-3408. Assault. An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary."

The elements of aggravated assault on a law enforcement officer are: (1) the intentional threatening or attempting to do bodily harm to a uniformed or properly identified law enforcement officer engaged in the performance of his duty; (2) the apparent ability to cause such bodily harm; (3) the officer's immediate apprehension of bodily harm; and (4) use of a deadly weapon, use of a disguise, or assault with intent to commit a felony.

As shown, the only common element in K.S.A. 21-3411 and K.S.A. 8-1568 is that a law enforcement officer must be involved. One cannot even say that the victim of each crime must be a law enforcement officer, as K.S.A. 8-1568 is merely a traffic violation.

To violate K.S.A. 8-1568 one needs only to ignore the activated emergency equipment of the police vehicle. The failure to stop or attempting to flee is no part of aggravated assault on a law enforcement officer. As noted by the factual statement, K.S.A. 8-1568 was violated throughout the chase in Kansas. The aggravated assault is charged for one specific occurrence the alleged intentional ramming of the police vehicle.

In dismissing the assault count, the trial court relied heavily on State v. Becker, 1 Kan.App.2d 671, 573 P.2d 1096 (1977). In Becker, the defendant was pursued by police in a high speed chase. A quarter mile from an oncoming police vehicle, defendant crossed the center stripe of the road, forcing the approaching police vehicle almost completely off the road. The defendant testified that he did not cross the center stripe immediately in front of the oncoming police vehicle, and did not intend harm to the officer driving the car. The defendant pled not guilty to 17 misdemeanor counts in the county court of McPherson County, and requested a jury trial. Thereupon, the State dismissed all 17 counts and refiled 15 of the counts in the district court. Included in the 15 refiled counts was "driving on the left side of the road." The defendant pled guilty to that count and several others. One week after the charges were refiled, the defendant was also charged with aggravated assault on a law enforcement officer. He was ultimately...