Aggravated Assault with a deadly weapon is a severity level 7 felony in Kansas. Even if you have a clean history, the fact that a gun was used in some fashion during the incident will trigger the "special rule" in Kansas that no longer presumes probation as a penalty. Based on your criminal history score, probation may be considered, but is not presumed. The state has created the special rule to impose stiffer penalties for offenders in this category. I have several cases involving use of a deadly weapon where my client did not intentionally cause harm or instill fear in the alleged victim, but was certainly reckless in their actions. The test is whether a reasonable person under similar circumstances would feel threatened with harm or serious bodily injury. The prosecutor must prove this element of the offense: that a reasonable person would fear for their safety. The involvement of a gun or other weapon certainly instills fear in the average person. Indeed, the facts of each case must be reviewed to determine whether the weapon was used or displayed in a manner designed to threaten or intimidate the accuser. Most cases are clear cut; others require an analysis of the accuser's state of mind. For instance, was there an argument that preceded the actions of the accused? Were both parties aware a weapon was nearby or in possession of one of the parties? Was the weapon aimed toward the accuser? Was the accused merely showing the weapon to the accuser? Did the accuser show genuine fear? As a criminal defense lawyer, I look for instances that tend to prove the threat was not real or that the accuser may have overreacted. Of course, if the facts suggest otherwise, then we consider possible plea options if the state is willing to engage in discussions.
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