State v. Flint, 263 P.3d 222 (KS Ct. App. 2011)
Court of Appeals of Kansas
November 10, 2011, Opinion Filed
2011 Kan. App. Unpub. LEXIS 943 | 263 P.3d 222
STATE OF KANSAS, Appellee, v. BRANDON FLINT, Appellant.
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., GREEN and ARNOLD-BURGER, JJ.
Per Curiam: This case returns to our court on remand from the Supreme Court, with directions that we reconsider the case in light of the 2010 amendments to K.S.A. 21-3221(a).
In our first look at this case in State v. Flint, 222 P.3d 1019, 2010 WL 445934 (Kan. App. 2010) (unpublished opinion), we considered Brandon Flint’s direct appeal of his aggravated assault conviction. Relying upon State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), we affirmed Flint’s conviction. 222 P.3d 1019, 2010 WL 445934 at *1.
We summarized the facts leading to Flint’s conviction as follows:
“Briefly repeated, the facts reveal that after leaving a bar in Emporia where Flint’s fiancée and another man exchanged angry words, Flint walked to his car. Outside, Flint’s fiancée and two men continued to talk in a heated fashion. Flint’s fiancée 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 fiancée 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.” 222 P.3d 1019, 2010 WL 445934 at *1.
We held Flint was not entitled to an instruction on defense of another based on Hendrix. In Hendrix, the Court held a defendant is only entitled to an instruction on defense of another when there is “‘use of force'”—which the Court interpreted to mean actual physical contact as opposed to a mere threat or display of force. 289 Kan. at 862. Notably, K.S.A. 21-3211 provides:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.”
After we issued our opinion in Flint, the Kansas Legislature amended the definition of “use of force” as follows:
“(1) ‘Use of force’ means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another.” K.S.A. 2010 Supp. 21-3221(a).
We have been directed to reconsider Flint’s case in light of this amendment.
In Flint, we stated, “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.” 222 P.3d 1019, 2010 WL 445934, at *1. Under the revised statute, a mere threat to cause death is sufficient to satisfy the element of “use of force.” In this case, Flint threatened to cause death by use of a gun. Flint was therefore entitled to an instruction on defense of another under K.S.A. 21-3211.
Although the amendments to K.S.A. 21-3221 were not effective until April 29, 2010?clearly after the date of Flint’s conviction—our Legislature specifically stated that the provisions of the Act related to the “use of force” language are to be construed and applied retroactively. K.S.A. 2010 Supp. 21-3220; L. 2010, ch. 124, § 1.
We reverse and remand with directions to grant Flint a new trial.