Assault Defense

KENTUCKY LAW ON ASSAULT

Criminal assault in Kentucky involves causing serious physical injury to another person with a deadly weapon or a dangerous instrument. It could also be showing extreme indifference to the value of human life by creating a very serious risk of death to another person, and in the course of creatin that risk, causing serious physical injury. 

Attempting to cause physical injury to any member of several categories of people, such as peace officers, healthcare providers, emergency medical services personnel, and public or private school employees, among others. 

DEGREES OF ASSAULT

There are four degrees of assault. Assault in the first degree is a Class B felony, while assault in the fourth degree is a Class A misdemeanor. Assault in the second and third degree are both lesser included offenses of assault in the first degree. 

There are also many other lesser included offenses to assault. Shooting and wounding in sudden affray or head of passion without previous malice, if, for example, the defendant was intoxicated at the time of the incident, is a lesser included offense. Cummins v. Com., 344 S.W.2d 611 (1961). Reckless use of a deadly weapon is a lesser included offense of assault. Smallwood v. Com., 303 S.W.2d 293 (Ky. 1957). Shooting in the head of passion is a lesser included offense. Kelley v. Commonwealth, 187 S>W.2d 796 (Ky. 1945). 

WHAT MUST BE PROVEN TO BE CONVICTED OF ASSAULT

To be convicted of assault in the first degree, it must be proven beyond a reasonable doubt that the person intended to cause serious physical injury to another person using a deadly weapon or a dangerous instrument. Otherwise, the prosecution needs to prove beyond a reasonable doubt that the person wantonly engaged in conduct that created a grave risk of death, thereby causing serious physical injury. The level of intent for the second circumstance is extreme indifference to the value of human life. 

Assault degrees second through fourth are lesser included offenses to assault in the first degree. There are three variations to assault in the second degree. Assault either occurs when a person intentionally causes serious physical injury to another person, or causes physical injury by use of a deadly weapon or dangerous instrument, or wantonly causes serious physical injury using a deadly weapon or dangerous instrument. 

Third degree assault includes both causing and attempting to cause physical injury to one of several enumerated categories of people. These include: 

• State, county, city, or federal peace officers 
• Detention facility, state residential treatment facility, of juvenile facility employee 
• Healthcare providers (if the event occurs while providing emergency medical care in a hospital) 
• A Department for Community Based Services social worker while the social worker is performing job related duties 
• Certified or licensed emergency medical services personnel 
• Member of an organized fire department while the member is performing job related duties 
• Rescue squad volunteer affiliated with the Division of Emergency Management of the Department of Military Affairs or a local disaster and emergency services organization 
• Probation or parole officer
• Transportation officer 
• Private or public school employee 

DEFINITIONS

• Dangerous instrument includes a motor vehicle. Martin v. Com., 873 S.W.2d 832 (Ky. App. 1993).
• A bottle used as a projectile is not necessarily a dangerous instrument or deadly weapon; whether it is or isn’t is determined by the circumstances. Harrison v. Com., 373 S.W.2d 156 (Ky. 1963). 
• Wantonly, as defined in the assault first degree statute, means that the defendant’s conduct manifested an extreme indifference to the value of human life. McCargo v. Commonwealth, 551 S.W.3d 439 (Ky. App. 2017). 

PENALTY FOR ASSAULT IN KENTUCKY

Assault first degree is punishable by 10 to 20 years’ imprisonment. 

Assault second degree is punishable by five to ten years’ imprisonment. 

Assault third degree is punishable by one to five years’ imprisonment. 

Assault fourth degree is up to one year in prison. An enhancement is available if the assault is of a family member or a member of an unmarried couple and the offense is a third or subsequent offense.  

A fine may also be imposed. 

ASSAULT AS SEEN THROUGH CASE LAW 

There are three elements of assault: the assailant’s mental state, the means of attack, and the injury that results. Com. v. Hammond, 633 S.W.2d73 (Ky. App. 1982). If the defendant intended to kill the victim with an instrument, but the victim did not die as a result of the attack, then the instrument can be considered a deadly weapon because it was used with intention to kill. Damron v. Com., 313 S.W.2d 854 (Ky. 1958). 

Examples of items that may be considered a deadly weapon, where there was intention to create great bodily harm or death: shoes, Jones v. Com., 256 S.W.2d 520 (Ky. 1853); a pocketknife, Philpot v. Com., 247 S>W.2d 499 (Ky. 1952); a walking cane, Ward v. Commonwealth, 266 S.2W.2d 54 (Ky. 1938); an ax handle, Moore v. Com., 35 S.W. 283 (Ky. 1902); a rock the size of a man’s fist, Commonwealth v. Duncan 16 S.W. 530 (Ky. 1891); body parts, Johnson v. Com., 926 S.W.2d 463 (Ky. Ap.. 1996). 

Examples of items that will be considered a deadly weapon regardless of the circumstances: brass knuckles, Martin v. Commonwealth, 78 S.W.2d 786 (Ky. 1935); any weapon with which a person can be wounded by stabbing or cutting, Com. v. Yarnell, 68 S.W. 136 (Ky. 1902); a pitchfork, Evans v. Commonwealth, 12 S.W. 767 (Ky. 1889); a sledgehammer, Philpot v. Commonwealth 595 S.W. 455 (Ky. 1888); an ax, Wilson v. Commonwealth, 55 S.W. 105 (Ky. 1968). 

The seriousness of the resulting injury, not just the potential for the attack to result in a serious injury, helps to determine what degree of assault has been committed. McDaniel v. Com., 415 S.W.3d 643 (Ky. 2013). For example, serious physical injury is required for first degree assault. Swan v. Com., 384 S.W.3d 77 (Ky. 2012). Physical injury includes lacerations, bruising, having the wind knocked out, swelling, and abrasions. Murphy v. Com., 50 S.W.3d 173 (Ky. 2001); Key v. Com., 840 S.W.2d 827 (Ky. App. 1992); Smith v. Com., 610 S.W.2d 602 (Ky. 1980). 

DEFENSE TO AN ASSAULT CHARGE 

There are some complete defenses to an assault charge. For example, self-defense is a complete defense to an assault charge. Bowling v. Com., 279 S.W.2d 238 (Ky. 1955). On the other hand, there are mitigating defenses, such as extreme emotion disturbance. Engler v. Com., 627 S.W.2d 582 (Ky. 1982). 

WHAT DOES NOT CONSTITUTE A DEFENSE FOR ASSAULT

It is not a defense that the injury to another is caused by the defendant’s operation of a vehicle, as a vehicle can be included in the definition of a deadly weapon or dangerous instrument. Martin v. Com., 873 S.W.2d 832 (Ky. App. 1993). 

Defense of others, such as shooting or injuring another person with a dangerous or deadly weapon when that person is injuring a third person, is not a defense to assault. Stephens v. Com., 382 S.W.2d 397 (Ky. 1964).