Assault & Battery Proving elements of reckless battery

[viper515]

Jurisdiction

Kansas

I guess I will hope I don't get flamed here but trying to keep my questions to the point. Jurisdiction is KS, municipal courts.

Proving battery by prosecutor. There are only two parties, victim, and defendant, no witnesses and no further evidence. I am excusing 'intentionally' because it does not apply.

How does a prosecutor prove this? They will NOT be able to directly prove the defendant caused the battery as there is no evidence other than the victim statement and a picture of the injury. There are no DNA swabs, no measurements, no pictures of the instrument that caused harm.

As well, there is clear and convincing evidence in the police report that the victim initiated contact and it is reasonable to assume the victim could have injured herself. That is "reasonable doubt" but I need to look at this from a prosecutor perspective.

 

[adjusterjack]

You're going to have to provide the SPECIFIC statute section with which you have been charged.

Apparently, there are at least two possibilities:

Reckless aggravated battery under K.S.A. 21-3414(a)(2)(A) that did cause disfigurement or great bodily harm and one for reckless aggravated battery under K.S.A. 21-3414(a)(2)(B) that could have caused disfigurement or great bodily harm.

There may be other statute sections.

You'll have to provide the exact section number that you are being charged with.

 

[viper515]

Arrest record indicates simple battery, 21-5413. However, I have no document, even after filing discovery, that specifically denotes which subsections are being used. 21-5413 includes ALL battery offenses. This is typical of our courts to be very lax in their procedures.

If it helps, the municipal summons indicates this offense referenced in our small town ordinances, but does not detail a), or b)


BATTERY.
Battery is:
(a)
Knowingly or recklessly causing bodily harm to
another person; or
(b)
Knowingly
causing physical contact with another
person when done in a rude, insulting or angry
manner. (K.S.A. Supp. 21-5413)

 

[Highwayman]

Your attorney would be the best one to ask about the prosecution and defense of your case.

 

[adjusterjack]

Arrest record indicates simple battery, 21-5413. However, I have no document, even after filing discovery, that specifically denotes which subsections are being used. 21-5413 includes ALL battery offenses. This is typical of our courts to be very lax in their procedures.

Nothing lax about it. It's strategy. They throw the whole bag at you figuring you'll plead to something.

They will NOT be able to directly prove the defendant caused the battery as there is no evidence other than the victim statement and a picture of the injury.

As I noted in your other post, you are very naive.

All the prosecution needs to do is put the victim on the stand. If that victim says "He hit me, here's the bruise" then the prosecutor's burden to make a prima facie case has been met and the burden then shifts to you to present evidence that you didn't do it.

Pointing out that the prosecution has "no other" evidence is not going to help if you can't produce evidence of your innocence and the judge or jury finds the victim credible beyond reasonable doubt.

You need a lawyer.

 

[viper515]

As part of the reckless element, it is noted that "a reasonable person knew or should have known that the acts would cause bodily harm". I read this as there has to be some element the reckless act would cause harm?

As an example, someone is swinging a bat playing baseball in a yard. Someone walks by and get clocked purely by accident. Not reckless battery?

What I am reading there is the reckless act must be something that would normally cause harm? I am trying to get an example of this.

As far as evidence in this case, it will be proved in court that the victim initiated contact so injury sustained cannot be proved to be caused by defendant or self sustained. Victim will say defendant caused the injury but also will not be able to deny the fact that they initiated contact.

 

[adjusterjack]

As an example, someone is swinging a bat playing baseball in a yard. Someone walks by and get clocked purely by accident. Not reckless battery?

Of course not.

What I am reading there is the reckless act must be something that would normally cause harm? I am trying to get an example of this.

Cleaning your gun without making sure it was unloaded comes to mind.

it will be proved in court that the victim initiated contact

What does initiated contact mean?

You don't have to answer that on the grounds that you might incriminate yourself but if you threw the first punch (kick, slap, whatever) you'd better be able to prove that the other party DID something that put you in fear of bodily harm because self-defense against bodily harm is your only defense. If you don't have that, you lose. Provocation (if that's what you mean by initiated contact) is not a defense.

 

[viper515]

They made first contact. That can be proved and is already in the police report. Without digging into this too far, someone tried to take a piece of personal property from defendant and owner (first contact), defendant/owner then walked away WITH the property in possession(in this case a bicycle), the victim indicates they were injured by the property (not direct contact) while carrying it. There was no act of trying to injure anyone. By all reasonable purposes, a pure accident.

Trying to determine if you can get to a reason of "reckless" by carrying the property and not attempting to injure anyone?

By own admission, the victim made first contact thus consenting to contact anyway.

 

[ElleMD]

Posting history folks. This was hashed out in excruciating detail just a few weeks ago. Bottom line, you need a lawyer. Same as you were told before.

 

[adjusterjack]

They made first contact. That can be proved and is already in the police report. Without digging into this too far, someone tried to take a piece of personal property from defendant and owner (first contact), defendant/owner then walked away WITH the property in possession(in this case a bicycle), the victim indicates they were injured by the property (not direct contact) while carrying it. There was no act of trying to injure anyone. By all reasonable purposes, a pure accident

Oh, this is that thing with the bicycle. I remember now. This is why I keep telling people to keep to one continuous thread. If you'd referred back to it I wouldn't have spent 20 minutes trying to pry information out of you.

For anybody else reading this, refer to:

Charged with battery while recovering my child's stolen bicycle

the victim indicates they were injured by the property (not direct contact) while carrying it. There was no act of trying to injure anyone. By all reasonable purposes, a pure accident.

Then that's your defense. Whether you "knowingly or recklessly" caused the injury has nothing to do with who "initiated contact."

My own opinion on that is that you "initiated contact" by going to where she lived taking the bike that she (at that moment) insisted was hers and tried to retrieve. Her injury was caused when you both tried to wrestle for the bike.

In your earlier post you made much of her being on the common area and that her son minutes later admitted to stealing the bike.

I think none of that matters.

At the moment of the altercation you had only an unproven allegation that it was the stolen bike and she had a belief that it wasn't.

I looked up case decisions in Kansas to see if there were any that addressed Battery. There weren't. However, there were several that addressed Aggravated Battery which doesn't apply here. Of interest, though, was that I found reference to a

discussion of reckless conduct in Restatement (Second) of Torts § 500 (a) (1965), pp. 587-588, as follows:

""Types of reckless conduct. Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.

In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it."For either type of reckless conduct, the actor must know, or have reason to know, the facts which create the risk....

"For either type of conduct, to be reckless it must be unreasonable; but to be reckless, it must be something more than negligent. It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence."

Thus we see that recklessness requires knowledge. The person who is reckless must have prior knowledge; he must know or have reason to know of facts which create a high degree of risk of harm to another, and then, indifferent to what harm may result, proceed to act."

Google Scholar

 

[army judge]

Viper, a little anecdote for your consideration.
I once observed with amazement a guy get revoked on an aggravated battery charge based upon the "testimony" of his current girlfriend that he "hit" her.
The "evidence" was a picture ALLEGEDLY taken by her neighbor two days after the "battery" showing "late" bruising.
The revocation hearing took 15 minutes, the judge decided in 30 seconds to revoke the man, sentencing him to 20 years in the Texas Department of Criminal Justice (PRISON).
He's rotting away there today, eight years down of his 20 year sentence.
Moral of this story, as well as others, is summed up best by this Mickey Mouse Club song commemorating "anything can happen day"!