State v. Flint, 222 P.3d 1019 (KS Ct. App. 2010)

State: Kansas
Date: January 29, 2010
Defendant: State v. Flint

State v. Flint

No. 101,583

222 P.3d 1019

January 29, 2010

COUNSEL:
Carl Folsom, III, of Kansas Appellate Defender Office, for appellant.
Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Steve Six, attorney general, for appellee.

JUDGES:
Before HILL, P.J., ELLIOTT and GREENE, JJ. GREENE, J, concurring.

OPINION
MEMORANDUM DECISION
Per Curiam:

This is Brandon Flint’s direct appeal of his aggravated assault conviction. This court issued a Show Cause Order on December 10, 2009, to both parties to decide the effect of the recent holding of our Supreme Court in State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), on the only issue raised in this appeal. After considering this matter, we hold that Hendrix controls this case.

Briefly repeated, the facts reveal that after leaving a bar in Emporia where Flint’s fiancee and another man exchanged angry words, Flint walked to his car. Outside, Flint’s fiancee and two men continued to talk in a heated fashion. Flint’s fiancee fell to the ground during the scuffle. At this point, Flint got his gun, walked back across the street, and pointed the gun at the chest of one of the men; both men immediately backed away. Flint’s fiancee got up, she and Flint walked back to Flint’s car, and they drove away.

The State charged Flint with aggravated assault, and the jury convicted him. Flint requested an instruction for defense of another under K.S.A. 21-3211(a), but the district court denied his request, ruling Flint’s use of force was greater than reasonably necessary to resist the attack. The court cited the ruling in State v. Marks, 226 Kan. 704, 602 P.2d 1344 (1979), as authority. Flint asks us to reverse based on this issue alone.

A majority of the Supreme Court held in Hendrix that K.S.A. 21-3211 created a defense of self or defense of another only when there is “use of force.” The majority decided actual physical contact rather than a mere threat or display of force is necessary to raise this defense. See 289 Kan. 589, Syl. P 6. Since Flint merely threatened the use of his gun and there was no actual force applied, he was not entitled to the defense of another.

This court is duty bound to follow Supreme Court precedent, without some suggestion the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P. 3d 869, rev. denied 284 Kan. 949 (2007). In addition, if a trial court reaches the right result, its decision will be upheld even though the trial court assigned erroneous reasons for its decision. State v. Murray, 285 Kan. 503, 533, 174 P. 3d 407 (2008). We are not persuaded by Flint’s argument that Hendrix does not control here because Hendrix fails to consider Flint’s right to bear arms as pronounced by the United States Supreme Court in District of Columbia v. Heller, U.S. , 171 L.Ed. 2d 637, 128 S. Ct. 2783 (2008). Therefore, the trial court’s decision is affirmed according to Supreme Court Rule 7.041 (2009 Kan. Ct. R. Annot. 56) based on the holding in Hendrix.

Affirmed.

CONCUR BY: GREENE

CONCUR
GREENE, J, concurring:

I agree that the outcome here is controlled by State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), but I write separately to note that the factual scenario in this case is very much like the hypothetical scenario depicted by Chief Justice Davis’ dissent in Hendrix. The fact that Flint has been deprived of self-defense here demonstrates the wisdom of the Chief Justice Davis’ dissent and the urgent need for a legislative fix of K.S.A. 21-3211.