The Kansas Court of Appeals has overturned former Kansas Highway Patrol trooper Darrin Hirsh’s conviction of aggravated assault, vacated his sentence and ordered a new trial. The court upheld the remainder of Hirsh’s conviction stemming from the events of March 12, 2013.
The court issued its ruling on Sept. 29 after reviewing numerous points made on his appeal.
Hirsh was convicted in Barton County District Court of one count of aggravated assault, two counts of criminal threat and one count of domestic battery. His ex-wife Candice Hirsh testified he held a gun to her head, and that he threatened both her and their children that night in the basement of their Great Bend home.
Defense attorneys argued that District Court Judge Ron Svaty erred in his response to a jury question concerning the deadly weapon used in the aggravated battery charge. Hirsh was specifically charged with placing Candice R. Hirsh, “(I)n reasonable apprehension of immediate bodily harm, with a deadly weapon, to wit: handgun.”
The jury asked whether a pillow could also be a deadly weapon and the district court’s response was to “refer to the jury instructions.” Those instructions were less specific:
“To establish [aggravated assault], each of the following claims must be proved:
1. Darrin Hirsh knowingly placed Candice R. Hirsh in reasonable apprehension of immediate bodily harm.
2. Darrin Hirsh did so with a deadly weapon.
3. This act occurred on or about the 12th day of March, 2013, in Barton County, Kansas.”
“By failing to instruct the jury that the State was required to prove that Hirsh used a handgun, Hirsh argues that the district court permitted the jury to convict him of an uncharged crime — aggravated assault by using a pillow as a deadly weapon. Hirsh asserts this error was prejudicial because had he known the jury could have relied on a pillow as a deadly weapon, he would have altered his defense.”
The court ruling notes, “The State specifically charged Hirsh with aggravated assault committed with a handgun. ... (I)t would have been very simple for the district court to inform the jury that, based on the way Hirsh was charged, it must find that the deadly weapon was a handgun rather than a pillow.”