707-711 Assault in the second degree. (1) A person commits the offense of assault in the second degree if:

(a) The person intentionally, knowingly, or recklessly causes substantial bodily injury to another;

(b) The person recklessly causes serious bodily injury to another;

(c) The person intentionally or knowingly causes bodily injury to a correctional worker, as defined in section 710-1031(2), who is engaged in the performance of duty or who is within a correctional facility;

(d) The person intentionally or knowingly causes bodily injury to another with a dangerous instrument;

(e) The person intentionally or knowingly causes bodily injury to an educational worker who is engaged in the performance of duty or who is within an educational facility. For the purposes of this paragraph, "educational worker" means any administrator, specialist, counselor, teacher, or employee of the department of education or an employee of a charter school; a person who is a volunteer, as defined in section 90-1, in a school program, activity, or function that is established, sanctioned, or approved by the department of education; or a person hired by the department of education on a contractual basis and engaged in carrying out an educational function;

(f) The person intentionally or knowingly causes bodily injury to any emergency medical services provider who is engaged in the performance of duty. For the purposes of this paragraph, "emergency medical services provider" means emergency medical services personnel, as defined in section 321-222, and physicians, physician's assistants, nurses, nurse practitioners, certified registered nurse anesthetists, respiratory therapists, laboratory technicians, radiology technicians, and social workers, providing services in the emergency room of a hospital;

(g) The person intentionally or knowingly causes bodily injury to a person employed at a state-operated or ‑contracted mental health facility. For the purposes of this paragraph, "a person employed at a state-operated or -contracted mental health facility" includes health care professionals as defined in section 451D-2, administrators, orderlies, security personnel, volunteers, and any other person who is engaged in the performance of a duty at a state-operated or -contracted mental health facility;

(h) The person intentionally or knowingly causes bodily injury to a person who:

(i) The defendant has been restrained from, by order of any court, including an ex parte order, contacting, threatening, or physically abusing pursuant to chapter 586; or

(ii) Is being protected by a police officer ordering the defendant to leave the premises of that protected person pursuant to section 709-906(4), during the effective period of that order;

(i) The person intentionally or knowingly causes bodily injury to any firefighter or water safety officer who is engaged in the performance of duty. For the purposes of this paragraph, "firefighter" has the same meaning as in section 710-1012 and "water safety officer" means any public servant employed by the United States, the State, or any county as a lifeguard or person authorized to conduct water rescue or ocean safety functions;

(j) The person intentionally or knowingly causes bodily injury to a person who is engaged in the performance of duty at a health care facility as defined in section 323D-2. For purposes of this paragraph, "a person who is engaged in the performance of duty at a health care facility" shall include health care professionals as defined in section 451D-2, physician assistants, surgical assistants, advanced practice registered nurses, nurse aides, respiratory therapists, laboratory technicians, and radiology technicians;

(k) The person intentionally or knowingly causes bodily injury to a person who is engaged in providing home health care services, as defined in section 431:10H-201; or

(l) The person intentionally or knowingly causes bodily injury to a person, employed or contracted to work by a mutual benefit society, as defined in section 432:1-104, to provide case management services to an individual in a hospital, health care provider's office, or home, while that person is engaged in the performance of those services.

(2) Assault in the second degree is a class C felony. [L 1972, c 9, pt of 1; am L 1979, c 84, 1; am L 1986, c 314, 52; am L 1987, c 257, 1; am L 1988, c 279, 1; am L 2006, c 230, 29 and c 298, 16; am L 2007, c 9, 19 and c 79, 1; am L 2008, c 100, 7; am L 2010, c 146, 1; am L 2011, c 63, 3 and c 187, 1; am L 2016, c 2031, 33; am L 2018, c 147, 1]

 

SUPPLEMENTAL COMMENTARY ON 707-710 TO 707-712

 

Act 231, Session Laws 2016, amended 707-711(1) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 147, Session Laws 2018, amended 707-711 to provide that the felony offense of assault in the second degree includes intentionally or knowingly causing bodily injury to a person who is engaged in the performance of duty at a health care facility; engaged in providing home health care services; or employed or contracted to work by a mutual benefit society to provide case management services to an individual in a hospital, health care provider's office, or home. The legislature found that violence against health care personnel appears to be on the rise. According to the United States Department of Labor, Bureau of Statistics, health care workers experience violent assaults at a rate four times higher than the national average. Under section 707-711, there are additional penalties for a defendant who intentionally or knowingly causes bodily injury to certain classes of workers, such as educational workers, employees of state-operated or state-contracted mental health facilities, firefighters, and emergency medical services providers. Although some health care workers fall within the category of emergency medical services providers, many do not. The legislature found that Act 147 would extend additional penalties to cover violence against all health care workers. Senate Standing Committee Report No. 3554.

 

Law Journals and Reviews

 

Cruelty to Animals: Recognizing Violence Against Nonhuman Victims. 23 UH L. Rev. 307 (2000).

 

Case Notes

 

Assault in the third degree is not a lesser included offense. 68 H. 276, 711 P.2d 1289 (1985).

Circuit court was obligated, even absent a request by either party, to instruct the jury regarding the included offense of assault in the third degree where appellant was charged with committing offense of assault in the second degree; court's failure to do so constituted plain error. 76 H. 387, 879 P.2d 492 (1994).

Conviction of defendant of offense of carrying, using or threatening to use a firearm in the commission of a separate felony under 134-6(a) and (e), the separate felony being second degree assault under subsection (1)(a), vacated where there was no substantial evidence that defendant caused substantial bodily injury to victim as required under subsection (1)(a). 94 H. 241, 11 P.3d 466 (2000).

The plain and unambiguous language of 853-4(2) does not prohibit the grant of a deferred acceptance of no contest plea for assault in the second degree under this section causing "substantial bodily injury", as statutory prohibition expressly applies only to felony and misdemeanor assaults inflicting "bodily injury" or "serious bodily injury". 101 H. 409, 70 P.3d 635 (2003).

Court's failure to personally engage defendant in on-the-record colloquy to determine whether defendant understood consequences of foregoing right to have jury instructed on third degree assault, the lesser-included offense of second degree assault, constituted plain error. 85 H. 44 (App.), 936 P.2d 1292 (1997).

Trial court's omission of the "strongly corroborative" paragraph in the attempted assault in the second degree instructions was presumptively prejudicial and omission was not harmless beyond a reasonable doubt. 104 H. 517 (App.), 92 P.3d 1027 (2004).

Although the evidence was insufficient to show that defendant committed the offense of first degree assault, there was ample evidence to show that the victim's injury satisfied the definition of "substantial bodily injury" under 707-700 and that defendant thus committed the lesser included offense of second degree assault in violation of subsection (1)(a); thus the jury, having returned a guilty verdict against defendant for first degree assault, must also have found sufficient evidence to prove the lesser included offense of second degree assault. 116 H. 445 (App.), 173 P.3d 592 (2007).

Cited: 55 H. 531, 534, 523 P.2d 299 (1974).

 

 

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