concurring-in-part-and-dissenting-in-part">WINTERSHEIMER, Justice,

Concurring in Part and Dissenting in Part.

I concur in the majority opinion insofar as it affirms the conviction and sentences. However, I must respectfully dissent from that part of the opinion which reverses the conviction and sentence for third-degree assault and orders a new trial.

Love claims error in regard to the third-degree assault instruction given for the injury caused to two police officers. The instructions given by the trial judge only required the jury to find that Love recklessly caused physical injury to the officers while they acted in the line of duty.

KRS 508.025 provides that a person is guilty of third-degree assault when he recklessly with a deadly weapon or dangerous instrumentality, or intentionally causes or attempts to cause physical injury to ... a state, county, city or federal peace officer. The statute does not require that the defendant knew the status of the victim at the time of the assault, but only that the defendant acted recklessly or intentionally in that the injured victims were peace officers. Essentially, KRS 508.025 enhances what would otherwise be an assault in the fourth degree to a felony because of the status of the victim as a member of law enforcement. The statute is similar to those involving sexual offenses against children in which the offense is enhanced, depending on the age of the child, as an example, KRS 510.040(2) and KRS 510.070(2).

In the case of KRS 508.025, there is no defense of lack of knowledge included in the statutory language and it is not interpreted by any commentary. Here, two police cruisers were parked in plain view, both with lights flashing and one parked in the middle of the expressway. It is interesting to note that the original draft of the Kentucky Penal Code contained a provision requiring knowledge, but it was deleted from the final draft. Clearly, the General Assembly did not wish to include the knowledge question.

The conviction should be affirmed in all respects.

GRAVES, J., joins this opinion.

Citation profile

How this case has been treated — in progress