My guess is Higbee is going to need to settle on a lesser charge and pay some restitution. The charges for Felony assault in the 2nd degree are minimum of 5 years in prison. Unless he has a really stong case it would be risky to go to trial. I'm not a lawyer so it's just my guess. Anyone have more insight please post away!
http://www.criminaldefenselawyer.co...inal-offense/kentucky-aggravated-assault-laws
Felony Assault in Kentucky
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Drew Wheaton
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An assault occurs in Kentucky when a person physically injures (or, in some cases, simply attempts to injure) another person, without legal justification. Kentucky has four assault crimes: first-, second-, and third-degree assault, which are Class B, Class C, and Class D felonies; and fourth-degree assault, a misdemeanor. The different degrees or levels of assault depend upon several factors, including the seriousness of the victim’s injury, whether the defendant actually wanted to cause the injury, and (in some cases) whether Kentucky law gives the victim special protection (in which case, even if the victim is not actually injured, an assault can be charged if a defendant simply attempted to cause an injury).
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To learn about misdemeanor assault in Kentucky, see
Misdemeanor Assault in Kentucky. For more information on assault and domestic violence, see
Kentucky Domestic Violence Laws.
First-degree Assault
First-degree assault is the most serious assault crime. It can be committed in two ways. First, a person can commit first-degree assault by intentionally inflicting a serious physical injury on a victim by using a deadly weapon or dangerous instrument. Second, first-degree assault can be charged if a victim suffers a serious physical injury caused by a person acting wantonly in a way that creates a grave risk of death. The sections that follow explain these situations in detail.
(Ky. Rev. Stat. Ann. § 508.010.)
Intentionally causing serious physical injury with a deadly weapon or dangerous instrument
This method of committing first-degree assault involves using a weapon or dangerous object to purposefully cause the most severe form of injury.
Acting intentionally. Acting intentionally basically means that a person wants to cause injury.
(Ky. Rev. Stat. Ann. § 501.020.)
Serious physical injury. Every assault crime involves a physical injury to a victim’s body, which Kentucky law defines as “substantial physical pain or any impairment of physical condition.” A serious physical injury goes beyond the basic definition; it happens when the injury resulting from an assault “creates a substantial risk of death, or . . . causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”
(Ky. Rev. Stat. Ann. § 500.080.)
Deadly weapon or dangerous instrument. Kentucky defines a deadly weapon as a gun from which a shot could be fired, a knife (other than an ordinary hunting or pocket knife), or several other objects traditionally viewed as a weapons, like blackjacks, billy clubs, karate sticks, and brass knuckles. A dangerous instrument, on the other hand, is an object, or even body part that, while not usually a weapon, can nonetheless be used in a way that can cause death or serious injury. For example, a steel-toed workboot can be a dangerous instrument if it’s used to kick a victim’s head.
(Ky. Rev. Stat. Ann. § 500.080.)
Inflicting a serious physical injury while acting wantonly in a way that creates a grave risk of death
A person acts wantonly by ignoring the fact that his conduct will cause a certain result. In terms of first-degree assault, that means that a person must be aware – but basically not care - that his conduct could cause death. An example would be driving a car into a crowd.
(Ky. Rev. Stat. Ann. § 501.020.)
Second-degree Assault
Second-degree assault is less serious than first-degree assault. There are three ways to commit second-degree assault:
- intentionally causing a serious physical injury
- intentionally causing simply a physical injury but by using a deadly weapon or dangerous instrument, or
- wantonly causing a serious physical injury using a deadly weapon or dangerous instrument.
(Ky. Rev. Stat. Ann. § 508.020.)
The discussion on first-degree assault contains explanations of acting intentionally or wantonly, the difference between a physical injury and a serious physical injury, and what constitutes a deadly weapon or dangerous instrument.
Third-degree Assault
Kentucky gives special protection to certain victims. It is third-degree assault to intentionally injure or even attempt to injure these victims. The crime can also be charged if a person injures or attempts to cause injury by acting recklessly while using a deadly weapon or dangerous instrument. A person acts recklessly by failing to realize that his conduct will cause an injury. Singled out for protection are assault victims who are:
- peace officers
- employees of facilities that house juvenile or youthful offenders
- a social worker employed by the Department for Community Based Services to provide direct client services performing their job-related duties
- certified or licensed emergency medical service personnel (volunteer or paid) performing job-related duties
- a paid or volunteer member of an organized fire department performing job-related duties
- paid or volunteer rescue squad personnel affiliated with the Division of Emergency Management of the Department of Military Affairs or a local disaster and emergency services organization performing job-related duties
- probation and parole officers
- a transportation officer duly-appointed to transport inmates when the county jail or county correctional facility is closed while performing job-related duties
- a certified school employee, school bus driver, or other school employee acting in the course and scope of the employee's employment
- a school volunteer acting in the course and scope of that person's volunteer service for a school or school district
- employees of facilities in which a juvenile charged with or adjudicated delinquent because of a public offense or as a youthful offender are housed. It is third-degree assault to either inflict a physical injury on such an employee or attack the employee with feces, urine, or other bodily fluid.
(Ky. Rev. Stat. Ann. §§ 501.020, 508.025.)
Penalties
The penalties for felony assault vary depending upon which of the felony assault crimes a defendant is convicted. Obviously, the more serious the crime, the more severe the penalty. Penalties can range from probation to imprisonment, plus a fine, restitution, and repayment of the costs of incarceration.
A judge can impose a sentence of probation or a conditional discharge (meaning no supervision by the probation department) upon a defendant convicted of a felony. Such a sentence cannot exceed 5 years.
(Ky. Rev. Stat. Ann. § 533.020.)
Penalty Ranges
If a defendant is imprisoned, the sentence will be determined by ranges of imprisonment Kentucky has established for each felony level; and defendants receive what is called an “indeterminate” sentence.
For example, a Class B felony carries a range of imprisonment of at least 10 years with a maximum of 20 years. So, the prison term for a Class B felony has to be at least 10 years and the maximum term could be set anywhere between 11 years to 20 years (for instance, the sentence could be 10 to 13 years). If a defendant is convicted by a jury, the jury is then asked to determine the length of a prison sentence. A judge can modify a jury’s sentence by reducing the maximum term (or, in the case of a D felony, imposing a definite jail term of a year or less). The felony level ranges are for first-time offenders; repeat offenders can receive sentences greater than the felony range.
(Ky. Rev. Stat. Ann. § 532.060.)
A fine for a felony conviction ranges from at least $1,000 to no more than $10,000 (that range applies to all felony convictions). A defendant found by a judge to be indigent does not have to pay a fine.
(Ky. Rev. Stat. Ann. § 534.030.)
First-degree assault
This is a
Class B felony and the most serious assault crime. Class B felonies carry a range of imprisonment of at least ten years, with a maximum term of 20 years.
(Ky. Rev. Stat. Ann. § 532.060.)
Second-degree assault
This crime is a Class C felony carrying a prison sentence with a term of at least five years, with a maximum term of ten years.
(Ky. Rev. Stat. Ann. § 532.060.)
Third-degree assault
A
Class D felony and the least serious felony assault. Class D felonies have a range of imprisonment of at least one year, with a maximum term of five years.
(Ky. Rev. Stat. Ann. § 532.060.)
Consult With a Lawyer
Being charged with felony assault is a serious matter. Defendants will benefit from consulting with an attorney having knowledge of the assault laws and penalties applicable in your case. A knowledgeable criminal defense attorney will have a sense of how to convince either a prosecutor or a jury that a defendant either did not intend to cause an injury, or did not cause a serious enough injury to merit a charge of felony assault. That could result in a lesser charge (such as a misdemeanor charge), a lesser punishment, or even dismissal of a case.
