Review of the judgment of the Court of Appeals in an unpublished opinion filed April 5, 2013.
Appeal from Lyon District Court; W. LEE FOWLER, judge.
BY THE COURT
K.S.A. 2011 Supp. 21-5413(b)(1)(A) requires the State to prove that an aggravated battery defendant acted while knowing that some type of great bodily harm or disfigurement of another person was reasonably certain to result. On the record in this case, there was sufficient evidence to convict the defendant of aggravated battery because he knowingly caused great bodily harm to another person or disfigurement of another person when he punched the victim.
Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
Jonathon L. Noble, assistant county attorney, argued the cause, and Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
BEIER J. MICHAEL J. MALONE, Senior Judge, assigned.
Defendant Brenton Lee Hobbs was involved in a fight outside a bar in Emporia after being escorted outside. The fight may have begun and certainly ended when Hobbs punched Scott Nienke, and Nienke fell to the ground, hitting his head on the bumper of a car. Nienke suffered a life-threatening injury but ultimately survived. Hobbs was arrested and later convicted of aggravated battery.
Hobbs appealed his conviction to the Court of Appeals, arguing that there was insufficient evidence to find him guilty of aggravated battery. The panel rejected Hobbs' argument and affirmed his conviction. We accepted Hobbs' petition to review the panel's conclusion that aggravated battery under K.S.A. 2011 Supp. 21-5413(b)(1)(A) requires the State to prove only that the defendant's act that caused great bodily harm or disfigurement was intentional, not that the result of the act was intentional.
[301 Kan. 204]Factual and Procedural Background
On the night of August 11, 2011, Hobbs went to an Emporia bar with several friends and acquaintances to celebrate a birthday. Because he had recently lost his identification, he called ahead to ensure that he could get into the bar. He was informed by the bar's owner that he would be able to enter but would not be served alcohol. When Hobbs arrived, Michael Watson, an employee of the bar, confirmed to Hobbs that he was welcome to enter but could not order or drink alcohol. Watson also warned Hobbs that he would have to leave if anyone saw Hobbs drinking.
Despite the warnings, Watson eventually saw Hobbs drinking alcohol. Watson approached Hobbs and told him that he would have to leave. Watson escorted Hobbs toward the door until he saw Clint Crawford, the bar's bouncer, and asked him to take Hobbs outside. Hobbs and Crawford eventually reached the door of the bar.
Crawford and Elsie Thompson, who had been outside with Nienke, would eventually testify that Hobbs was agitated and did not want to leave. According to both Crawford and Thompson, Nienke attempted to intervene to calm Hobbs. Crawford said that, when Nienke approached Hobbs, Hobbs " tensed up" and looked like " [h]e was expecting . . . a fight, more or less." Both Crawford and Thompson said Hobbs then punched Nienke; Nienke had not touched Hobbs.
After Nienke was hit, " he immediately went stiff" and " fell backwards and hit his head on the bumper of a car and he was hit with enough force that he actually slid under the car." Thompson went to help Nienke, grabbing his head and yelling his name to try to rouse him. She noticed blood coming from his ear and told Crawford to go inside and tell Watson to call 911.
Hobbs would eventually testify to a different version of the events. According to him, " [o]nce I got to the doors, to the threshold, as I was walking out, I got a push from behind." Hobbs testified that he turned around and began arguing with Crawford. Crawford and a couple of others who had gathered outside told Hobbs that he needed to leave. Nienke also told Hobbs that he needed to leave and began walking toward Hobbs.
[301 Kan. 205] Hobbs said Nienke continued to walk closer to Hobbs, and Hobbs shifted from arguing with Crawford to arguing with Nienke. As Nienke drew closer, Hobbs eventually had to look up at the much bigger Nienke. Nienke, according to Hobbs, " put his hand around my neck and pushed me" into the back bumper of a parked car. Nienke kept his hand around Hobbs' neck, despite Hobbs telling him that he needed to let go. Finally, Hobbs punched Nienke. When Nienke fell, Hobbs attempted to leave the bar parking lot, but Watson and another bar patron caught him and held him until police arrived.
Nienke was taken to the hospital, and Hobbs was arrested. The doctor treating Nienke determined that he had suffered a " basilar skull fracture," which would have required a significant impact to be inflicted. At trial, the doctor testified that " [t]his was a very serious injury. This gentleman faced lifetime debility and death."
Hobbs was charged with aggravated battery under K.S.A. 2011 Supp. 21-5413(b)(1)(A), which requires that he " [k]nowingly caus[e] great bodily harm to another person or disfigurement of another person."
The district court judge gave the following jury instruction on the elements of the crime:
" 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 ...