State v. LeState v. Le
- Reporters:
- , ,
- Before:
- Lockett
The opinion of the court was delivered by
Lockett, J.:
The State appeals the denial of its motion to amend a complaint charging defendant Tung Thanh Le with felony reckless aggravated battery against a law enforcement officer pursuant to
On May 2, 1995, the defendant was shot by a Kansas Highway Patrol Trooper who was being dragged by the defendant’s vehicle as the defendant attempted to flee from a traffic stop. The State
K.S.A.‘21-3415 provides:
“(a) Aggravated battery against a law enforcement officer is: (1) an aggravated battery [intentionally causing great bodily harm to ánother person or disfigurement of another person] committed agáinst a uniformed or properly identified state, county, or city law enforcemeiit officer while the officer is еngaged in the performance of the officer’s duty; or •
(2) an aggravated battery, [intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted] or [intentionally causing physical contact with another person when doné in a rude,’ insulting, or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted] committed against a uniformed of properly identified state, county or city law enforcement officer while the officer is engaged in the performance of the officer’s duty.” . .
Aftеr evidence was presented at. the preliminary examination, the judge dismissed the charge of aggravated battery against a law enforcement officer, finding that there was no probable causе that the defendant’s actions were intentional, a statutory element of
The State refiled the complaint. Cpunt I of the second complaint charged that the defendant
“recklessly
cause[d] bodily harm to anоther person, to-wit: Daniel Dick, a uniformed State Law Enforcement Officer, with a deadly weapon, to-wit: Ford Bronco” (emphasis added) and cited
. After the arraignment, Le filed a motion to dismiss the aggravated. battery against a law enforcement officer charge, pointing out that
At the hearing on the motion, the judge determined that the State’s proposed amendment violated the rule of statutory construction requiring a specific statute to be charged over a‘general statute. The district judge observed that the legislature intended intentional aggravated battery against a law enforcement officer to be a distinct act from aggravated battery set out in
“The State should not be allowed to circumvent the legislative intent with‘the prеtext that Trooper Dick is merely a member of the general public. Trooper Dick is a member of a particular specific class that has been identified by the legislature. An amendment to the informаtion would not prejudice the defendant. However, the particular proposed amendment I believe violates the rule óf statutory construction which requires a specific statute to be chargеd over a general statute.”
The judge then opined that
In construing statutes and determining legislative intent, several provisions of an act,
in pari materia,
must be construed together with a view of reconciling and bringing them into workable har
In 1992, the legislature amended the battery statute to include both intentional and reckless acts. L. 1992, ch. 298, § 11. During the same session, the legislature amended the general aggravated battery statute to include reckless and intentional acts. L. 1992, ch. 298, § 12.
“Battery is:
(a) Intentionally or recklessly causing bodily harm to another person; or
(b) intentionally causing physical contact with another person when doné in a rude, insulting or angry manner.” (Emphasis added.)
“(a) Aggravated battery is:
(1)(A) intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting, or angry manner with a deadly weaрon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; or
(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily hаrm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted.
“(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as describéd in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as desсribed in section (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 21-4704 and amendments thereto.” .
The aggravated battery against a law enforcement officer statute was enacted in 1969. L. 1969, ch. 180. Prior to that time, no distinction was made between aggravated battery against á law enforcement officer and aggravated battery of other‘s. The 1969 еnactment of 21-3415 increased file felony classification for intentional aggravated battery against‘a law enforcement officer from a Class C felony applicable, to the general aggravated battery statute to a Class B felony. The enactment carried out the policy of the legislature to provide for increased penalties for attacks upon law enforcement officers performing théir.duties.
In 1992, when the legislature amended the aggravated battery statute to include reckless aggravated battery, the aggravated battery against a law enforcement officer statute wаs not ámended to include the element of recklessly causing great bodily harm or bodily harm. Only intentional acts of aggravated battery against a law enforcement officer are set out in
In determining legislativе intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose tо be accomplished, and the effect the statute may have under the various constructions suggested. State v. Gonzales, 255 Kan. at 249. As one commentator has noted- in discussing the legislature’s intent in not amending 21-3415 to include reckless acts against a law enforcement, officer:
“This section [K.S.A. 21-3415, level 6 person felony] continues die policy of increasing the felony class for the intentional aggravated battery of a law enforcement officеr. Reckless aggravated battery of a law enforcement officer is covered by the general provision on aggravated battery. If reckless aggravated battery received the same felony class increase, an anomalous situation would result because the penalty for a reckless aggravated battery of a law enforcement officer would result in a higher penalty than that prоscribed for a reckless act causing the death of a law enforcement officer [covered by K.S.A, 21-3404, involuntary manslaughter, a level 5 person felony].” (Emphasis added.) Tonkovich, The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73, 84 (1993).
The district court is reversed, and the case is remanded for further proceedings.