State v. DuncanState v. Duncan
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Defendant was convicted on three counts of aggravated assault on a law enforcement officer (
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
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, 3 L.Ed.2d 199, 79 S.Ct. 209 (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.
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. ¶ 6, 527 P.2d 988 (1974).
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
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 the first and third elements were not established as to Lowry and the third element was not established as to Bynum.
The physical evidence and the officers’ necessary resulting
As to Bynum, the evidence was that Sutton observed defendant waving the gun in the direction of Bynum and shot defendant before defendant could shoot Bynum. By his testimony, Sutton heard a loud noise which he initially thought was a gunshot but turned out to be defendant breaking the second window. Sutton quickly turned and fired at defendant when he saw defendant waving the gun in Bynum’s direction. There is no evidence that Bynum observed defendant waving the gun at him. Sutton fired at defendant while Bynum was still facing away or just in the process of turning toward the window which defendant had broken. There was no testimony that Bynum was placed in immediate apprehension of bodily harm. Bynum did not see defendant wave the gun at him. The first time Bynum saw defendant was after he was shot by Sutton.
Again, we conclude the evidence was insufficient to establish a reasonable inference of guilt as to the counts of aggravated
Defendant’s last point of error goes to the jury’s alleged erroneous consideration of the definition of “assault” taken from a dictionary. At the hearing on the motion for new trial, a juror testified that some members of the jury were uncertain of the meaning of “assault” and that during a lunch break a juror looked up the definition of the word in a dictionary and reported its meaning to the jury when it reconvened. It is not permissible to inquire whether or not the dictionary definition of “assault” was given weight by the jury.
In early Kansas cases, prejudice was presumed from jury misconduct such as consideration of dictionaries or almanacs not admitted into evidence. State v. Schaben, 69 Kan. 421, 426, 76 Pac. 823 (1904); State v. Lantz, 23 Kan. 728, 730 (1880). The State had the burden of establishing that the jury misconduct did not substantially prejudice the rights of the defendant. State v. McNichols, 188 Kan. 582, 589, 363 P.2d 467 (1961). However, somewhere along the line the burden has now shifted to the defendant to show the existence of substantial prejudice to his rights. State v. Arney, 218 Kan. 369, 371-372, 544 P.2d 334 (1975); State v. Howard, 224 Kan. 208, 212-213, 579 P.2d 702 (1978).
Defendant’s argument that he was prejudiced by the jury’s consideration of a dictionary definition of “assault” goes only to the difference between the elements of the crime of aggravated assault on a law enforcement officer as defined in
The judgments of conviction on counts 1 and 3 for aggravated assault on a law enforcement officer are reversed and the judgments of conviction on count 4 for aggravated assault on a law enforcement officer and count 5 for burglary are affirmed.