State of Kansas, Appellee, v. Johnathon Wayne Brister, Appellant. (2026)

MEMORANDUM OPINION

Johnathon Wayne Brister was convicted by a jury of aggravated assault and theft. Brister raises two issues on appeal. First, he argues that his conviction for aggravated assault was not supported by sufficient evidence. But considering the evidence from trial in a light most favorable to the State, we find a rational fact-finder could have convicted Brister of aggravated assault.

Second, Brister alleges that the district court erred by failing to instruct the jury on the lesser included crime of assault. Since Brister did not object to the omission of the jury instruction at trial, we may only reverse the decision of the district court if it was clearly erroneous. While a jury instruction for assault would have been legally and factually appropriate, there was no clear error requiring reversal because we are not firmly convinced the jury would have reached a different verdict had it been instructed to consider the lesser included crime. Accordingly, we affirm.

Factual and Procedural Background

Johnathon Wayne Brister was convicted by a jury of aggravated assault and theft. The underlying incident began when Deputy Isacc Nickel of the Leavenworth County Sheriff's Office was dispatched to a home in response to a security alarm. After determining the home had been burglarized, Deputy Nickel contacted the owner. The owner described that he owned a yellow, 2016 Chevy Camaro. The owner noted that a custom inlay of an American flag had been added near the rear of the vehicle. Deputy Nickel confirmed that the Camaro the owner had described was missing from the garage.

The next day, Sergeant Jason Slaughter of the Leavenworth County Sheriff's Office issued an alert for officers to be on the lookout for the missing Camaro. Shortly after issuing the alert, Slaughter received an email from Detective Aaron Burchyett with the Leavenworth Police Department. The email indicated that nightshift officers had reported seeing a vehicle meeting the description of the missing Camaro in the 1400 block of Ottawa Street, in Leavenworth, Kansas. Officers also reported a very strong odor of paint in the area.

After receiving the email, Sergeant Slaughter canvassed the 1400 block of Ottawa Street while driving an unmarked, Ford F-150 pickup truck. As Slaughter traveled to the area, he saw Officer Matthew Phillips of the Leavenworth Police Department. Slaughter stopped Phillips and explained that he was searching for the missing Camaro. Phillips believed that the missing vehicle was nearby at 1410 Ottawa Street.

Sergeant Slaughter drove to 13th Terrace, directly east of 1410 Ottawa, to get a good view of the backyard. Three people were standing in the backyard, including Brister, whom Slaughter recognized from previous encounters. Though the yard was surrounded by a privacy fence, Slaughter looked through a large gap and saw a Camaro he believed to have been spray painted. Despite the new paint, an American flag inlay continued to be visible on the Camaro. Even in its altered condition, the vehicle matched the description of the missing Camaro.

After discovering the missing vehicle, Sergeant Slaughter moved his vehicle to Ottawa Street and parked on public property near 1410 Ottawa. Slaughter contacted Detective Burchyett and provided him with the updated information about the missing vehicle so Burchyett could apply for a search warrant.

While Sergeant Slaughter was in his truck waiting for the search warrant to arrive, Brister appeared on a deck attached to the residence. Slaughter testified at trial that Brister “began looking in my direction. After a little bit, he starts throwing his hands up in the air, making gestures towards me. I called my lieutenant at the time, and I told him to speed things along, I believe that they've spotted me sitting out in front of the house.”

Brister continued to stand on the deck making gestures at Sergeant Slaughter for about five minutes. Brister then left the deck, walked through a gap in the privacy fence, and approached Slaughter's vehicle. Slaughter described that Brister was “throwing his hands up in the air and hooting and hollering, kinda chucking and jiving towards me.” Slaughter explained Brister's arms were “flaring” and pointing towards his chest. Slaughter testified that Brister said, “What's up, motherfucker? Who the fuck are you?” After making the comment, Brister continued to approach.

Sergeant Slaughter stated that at first, he remained in his vehicle with his service weapon in his lap because he did not know how far Brister would advance. Brister continued to advance through the yard and was almost to the sidewalk near the street where Slaughter was parked when Slaughter saw Brister put his right hand in his jacket pocket. Slaughter became concerned that Brister was retrieving a weapon.

Sergeant Slaughter watched as Brister pulled a red-handled knife partially out of his pocket. As Brister continued around the front corner of the passenger side of the truck, Slaughter exited the vehicle, drew his service handgun and identified himself. Slaughter testified that at this point, he was very concerned that Brister could harm him. Slaughter explained that he did not want Brister “to break the [plane] of the front end of my vehicle before I was able to exit.” He stated that was he trained that “anybody with a weapon that's already ready to pull it, you have about any—anywhere between 25 feet in that by the time you—your brain sees the threat, reacts to the threat, a person with a lethal cutting instrument can already cause damage or a lethal injury to yourself before you even have time to react.”

After Sergeant Slaughter identified himself, Brister said, “I didn't know you were the cops.” Slaughter ordered Brister to the ground, but he did not comply. Instead, Brister went back into the residence through the front door. After Brister left, Slaughter returned to his vehicle and watched the house while he waited for other officers to arrive.

Officer Matthew Phillips observed some of the interaction between Brister and Sergeant Slaughter. He testified that he saw Slaughter park east of 1410 Ottawa Street. He described that Brister was yelling at Slaughter and then “aggressively walked towards the vehicle.” Phillips testified he could see Slaughter's door was open but could not see whether he had pulled his duty weapon. He stated Slaughter was off to the side of his door and Brister was “in front of the passenger side headlight of the vehicle.”

Lieutenant Tyler Fast of the Leavenworth County Sheriff's Office testified that he was on the phone with Sergeant Slaughter during the incident. Lieutenant Fast stated that he “heard the phone rustle around, and I heard Sergeant Slaughter say something to the effect of, ‘You're gonna pull a knife on me?’ And at that point, I told him I was gonna be en route and hung up.”

After additional officers arrived, a search warrant was executed. A red-handled knife was found inside the home and the missing Camaro was located in the backyard.

Brister testified in his own defense. He stated that at the time of the incident he lived at 1410 Ottawa Street. Brister claimed that on the day of the incident, he was whittling a piece of wood on the back porch when he learned there was someone parked near his home. Brister said he looked around the area surrounding the house, saw a vehicle, and threw his hands up. He stated that he then walked through the house, “dropped the knife on the ground at the doorway,” and took two steps out of the door. He stated that when the man in the vehicle identified himself as law enforcement, he threw his hands up, turned, and walked inside. When Brister went outside again he was arrested.

At the conclusion of the trial, the jury found Brister guilty of aggravated assault and theft. Brister was sentenced to 32 months in prison.

Analysis

Did Sufficient Evidence Support Brister’s Conviction for Aggravated Assault?

Brister's first argument on appeal is that insufficient evidence supported his conviction for aggravated assault.

Standard of Review

“ ‘When a defendant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.’ [Citations omitted.]” State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024).

Moreover, “[i]t is only in rare cases where the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed.” State v. Zeiner, 316 Kan. 346, 350, 515 P.3d 736 (2022).

Discussion

Brister was convicted of aggravated assault pursuant to K.S.A. 21-5412(b)(1). Under that statute, “[a]ssault” is defined as “knowingly placing another person in reasonable apprehension of immediate bodily harm.” K.S.A. 21-5412(a). Assault is elevated to “[a]ggravated assault” if it is committed “[w]ith a deadly weapon.” K.S.A. 21-5412(b)(1).

Brister makes two sufficiency challenges. First, he alleges that the State failed to establish beyond a reasonable doubt that Brister used a deadly weapon to place Sergeant Slaughter in reasonable apprehension of immediate bodily harm under K.S.A. 21-5412(b)(1). Second, Brister argues that he did not use his knife in a manner calculated or likely to cause death or bodily harm. We will address each argument in turn.

Reasonable Apprehension of Immediate Bodily Harm

Brister first argues that Slaughter did not experience a reasonable apprehension of immediate bodily harm because he sat “safely within his vehicle with a semi-automatic Glock on his lap, and Mr. Brister approached with a pocketknife in his pocket․” Brister also argues that under the circumstances, a reasonable person would not have been in apprehension of immediate bodily harm with a deadly weapon.

As the parties acknowledge, “[a]ssault contains both a subjective apprehension by the victim, i.e., whether the victim had an apprehension of immediate bodily harm, as well as an objective determination that the apprehension was reasonable.” State v. Holmes, No. 120,368, 2019 WL 4725206, at *3 (Kan. App. 2019) (unpublished opinion). As prior panels have indicated, the State bears the burden to prove that Sergeant Slaughter “had a subjective apprehension of immediate bodily harm and that such apprehension was objectively reasonable.” State v. Gallegos, No. 127,246, 2025 WL 3687106, at *2 (Kan. App. 2025) (unpublished opinion). See State v. Angle, No. 116,152, 2017 WL 4216161, at *3 (Kan. App. 2017) (unpublished opinion).

Subjective apprehension of immediate bodily harm

We first examine the evidence to determine whether there was sufficient evidence of Sergeant Slaughter's subjective apprehension of immediate bodily harm.

Brister cites an unpublished opinion, State v. Conley, No. 94,096, 2006 WL 2129127, at *1 (Kan. App. 2006) (unpublished opinion), in support of his argument that Slaughter did not subjectively experience an apprehension of immediate bodily harm. In Conley, a panel of our court found insufficient evidence of aggravated assault where a victim hid in a closet and had no knowledge the defendant possessed a gun. 2006 WL 2129127, at *1-2, 5. “Our review of the record reveals no evidence that Abney saw or heard anything to alert her that she was being threatened by a deadly weapon. Moreover, she never testified of being fearful of bodily harm due to the use of a deadly weapon.” 2006 WL 2129127, at *5.

Brister argues that similarly, Sergeant Slaughter did not subjectively experience an apprehension of immediate bodily harm because he never specifically testified that he felt threatened by Brister's use of the knife. But Brister's argument ignores Slaughter's testimony that he was fearful Brister would cause him harm. Slaughter also testified that based on his law enforcement training and experience, a person who is in close proximity while possessing a weapon can “cause damage or a lethal injury to yourself before you even have time to react.” Slaughter was clear in his testimony that he believed Brister's actions in approaching his vehicle while pulling a knife out of his pocket could have caused him serious harm.

Sergeant Slaughter's subjective apprehension may also be proven through circumstantial evidence. Circumstantial evidence may support a conviction of even the greatest offense if the evidence allows a fact finder to conclude the elements have been proven beyond a reasonable doubt. To sufficiently support the conviction, circumstantial evidence need not exclude every other reasonable conclusion. State v. Barnes, 320 Kan. 147, 177-78, 563 P.3d 1255 (2025).

Here, the record reflects that Slaughter watched as Brister gestured at him for about five minutes from the deck of the home. Slaughter continued to watch as Brister began to approach his vehicle. Slaughter saw Brister first “fidgeting” with something in his pocket and then partially remove a red-handled knife. Slaughter testified that at the point Brister was removing the knife, he was a mere 15 to 20 feet from Slaughter's vehicle. Brister was near the front headlight of the vehicle when Slaughter stepped out of the vehicle, took a defensive stance, and drew his weapon. Officer Fast corroborated Slaughter's subjective belief that Brister intended to harm him with a knife. He testified he was on the phone with Slaughter as Brister advanced toward the truck. Officer Fast heard Slaughter ask Brister something like, “You're gonna pull a knife on me?” Finally, a red-handled knife was found when the search warrant was executed.

Slaughter's testimony as well as this circumstantial evidence forms a sufficient basis for a reasonable fact-finder to find Slaughter subjectively experienced an apprehension of immediate bodily harm.

Objectively reasonable apprehension of immediate bodily harm

Brister also argues that Sergeant Slaughter did not have an objectively reasonable apprehension of immediate bodily harm. He argues that “a reasonable officer in this situation should take reasonable precautions, but sitting safely inside a truck with the doors shut against an approaching person provides a good measure of protection.” Brister also argues that an officer who is trained in firearm use could not objectively believe he or she would be subject to immediate bodily harm.

We note two recent decisions from panels of our court that guide our consideration of whether Sergeant Slaughter experienced an objectively reasonable apprehension of immediate bodily harm.

In State v. Holmes, witnesses testified that the defendant was “acting strangely and screaming at [the victim] while holding a dandelion picker [a gardening tool] down by her side in a clenched fist.” 2019 WL 4725206, at *1. The victim testified that she was scared the defendant would harm her with the tool which remained at the defendant's side. 2019 WL 4725206, at *1. The panel concluded that because the defendant was acting strangely and screaming while approaching the victim with a garden tool, sufficient evidence supported a finding that the victim experienced a reasonable apprehension of immediate bodily harm. 2019 WL 4725206, at *3.

In State v. Stutzman, No. 125,063, 2023 WL 6172189, at *4 (Kan. App. 2023) (unpublished opinion), the defendant walked toward a truck occupied by three members of a work crew. Stutzman began acting erratically, yelled at the crew, and fired multiple gunshots into the ground in the direction of the crew. Stutzman was convicted of three counts of aggravated assault. On appeal, she challenged the sufficiency of evidence supporting her convictions, arguing that because she never directly pointed her gun at the work crew, they could not have experienced a reasonable apprehension of immediate bodily harm. The panel disagreed, finding “Stutzman had been acting belligerently and yelling at the men, and at one point she yelled out to them, ‘Scared?’ ” 2023 WL 6172189, at *4. The panel concluded that “Stutzman's threatening actions would support a finding that the three crewmen's apprehension of immediate bodily harm was reasonable.” 2023 WL 6172189, at *4.

Our case here raises a similar fact pattern—a defendant's erratic and aggressive behavior coupled with the presence of a weapon. After realizing there was a vehicle parked near his house, yet on public property, Brister stood on his deck and made gestures toward Sergeant Slaughter for about five minutes. Brister then left the deck, moved through a gap in the privacy fence, and walked toward Slaughter's vehicle. As he approached, Brister continued to gesture, pointing at his chest, and said, “What's up, motherfucker? Who the fuck are you?” Brister continued to approach while partially taking a red-handled knife from his pocket. As a result, Slaughter left his vehicle, took a defensive position, and drew his weapon. He testified that based on his training and experience, when someone is within 25 feet with a weapon, there is very short window of time to act in self-defense. Brister was approximately 15 to 20 feet from Slaughter at the time he made his statement and started to remove the knife from his pocket. Brister advanced as far as the front passenger side of Slaughter's truck before finally retreating.

Beyond Slaughter's testimony, we again note that a fact-finder could rely upon circumstantial evidence to infer that Slaughter experienced a reasonable apprehension of immediate bodily harm. A verdict may be supported by circumstantial evidence if “it permits the factfinder to draw a reasonable inference regarding the fact(s) in issue.” State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). Here, a jury could reasonably infer that, based on Brister's actions in approaching Slaughter's vehicle while cursing and starting to remove a knife from his pocket, he intended immediate bodily harm. Based on the evidence before us, we conclude that Sergeant Slaughter's apprehension of immediate bodily harm was reasonable.

Use of Deadly Weapon

In his second sufficiency challenge, Brister argues that there was no evidence he used his knife in a manner likely to cause death or bodily harm. Jury instruction No. 10 contained the elements of the crime of aggravated assault. A definition of “deadly weapon” was also included in instruction No. 10:

“A deadly weapon is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury. An object can be a deadly weapon if the user intended to convince a person that it is a deadly weapon and that person reasonably believed it to be a deadly weapon.”

Brister argues that since his knife was not “brandished, drawn, or used,” it was not used in a manner “calculated or likely to produce death or serious bodily injury․” See K.S.A. 21-5412(b)(1).

We begin our analysis by noting that “the only difference between aggravated assault and simple assault is the deadly weapon element, which is not statutorily defined. But our case law has filled that gap.” State v. Lowe, 317 Kan. 713, 719, 538 P.3d 1094 (2023). The definition of “deadly weapon” found in instruction No. 10 was based on Kansas caselaw:

“In State v. Hanks, 236 Kan. 524, 694 P.2d 407 (1985), superseded by statute on other grounds as stated in State v. Robinson, 303 Kan. 11, 363 P.3d 875 (2015), the court interpreted the term by relying on the dictionary definition. 236 Kan. at 537 (citing Black's Law Dictionary 487 [4th ed. 1968]). The Hanks court held: ‘A deadly weapon is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.’ ” Lowe, 317 Kan. at 719.

Moreover, “[t]he law in Kansas is clear that an object can constitute a ‘dangerous weapon’ even if it is absolutely harmless. Our Supreme Court has adopted a subjective analysis for determining whether an assault was committed with a deadly weapon.” State v. Graham, 27 Kan. App. 2d 603, 606, 6 P.3d 928 (2000). Put another way, “[i]n a prosecution for aggravated assault, the lethal character of the weapon is to be assessed from the victim's perspective. That is, would the victim reasonably believe he or she had been threatened with a deadly weapon?” State v. Collins, No. 119,522, 2019 WL 2554096, at *2 (Kan. App. 2019) (unpublished opinion).

In Graham, the defendant challenged the sufficiency of evidence supporting his conviction for aggravated assault. Graham's charge was based on his threat to throw gasoline on a convenience store clerk. A panel of our court considered whether gasoline could constitute a deadly weapon in the context of the aggravated assault statute. The court concluded:

“Here, under a subjective analysis, gasoline constitutes a dangerous weapon. The evidence shows that Graham threatened to use gasoline in a manner that communicated an apparent ability to inflict bodily harm. See Deutscher, 225 Kan. at 270-71, 589 P.2d 620. Moreover, the clerk reasonably believed bodily injury could occur if Graham threw gasoline on him. The clerk testified that he was threatened by Graham's statement, because he thought gasoline could cause eye damage, skin cancer, and other types of bodily harm. As a result, sufficient evidence supports the trial court's finding that under the subjective analysis gasoline constituted a deadly weapon.” 27 Kan. App. 2d at 607.

Our Kansas Supreme Court has long held that whether an object has been used as a “deadly weapon” to commit the crime of aggravated assault rests on the defendant's “apparent ability” to inflict bodily harm. See State v. Deutscher, 225 Kan. 265, 271-72, 589 P.2d 620 (1979) (pointing unloaded revolver at victim sufficient to support conviction for aggravated assault).

Considered in a light most favorable to the State, the evidence in the record demonstrates that Sergeant Slaughter reasonably believed Brister had the “apparent ability” to use his knife to inflict bodily harm. Deutscher, 225 Kan. at 272. Once Brister saw someone sitting in a vehicle on Ottawa Street, near his home, he stood outside on the deck and began making gestures. After about five minutes, Brister approached the vehicle while yelling profanity. Slaughter saw Brister partially draw a knife from his pocket as he continued to approach. Sergeant Slaughter testified he believed that Brister's close proximity and grip on the knife meant he was at risk of being harmed. In response, Brister exited his vehicle, took a defensive position, and drew his weapon.

Witness testimony corroborated Sergeant Slaughter's version of events. Lieutenant Fast testified that he was on the phone with Sergeant Slaughter when he heard Slaughter say something like, “ ‘You're gonna pull a knife on me?” Officer Phillips also confirmed he observed Brister on his porch gesturing at Slaughter and then saw Brister exit the porch yelling and walking “aggressively” toward Slaughter's vehicle. As Brister approached the passenger side headlight, Phillips saw Slaughter exit the vehicle.

We note Brister's argument that he never “used” the knife because it never fully came out of his pocket. Brister offers no legal support for his argument. “Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue.” State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020).

Kansas law requires that we consider whether Brister used the knife “in a manner that communicated an apparent ability to inflict bodily harm,” and whether Sergeant Slaughter reasonably believed serious bodily harm or death could occur if Brister used the knife to harm him. Graham, 27 Kan. App. 2d at 607. Brister's argument ignores the evidence in the case. The record reflects that Brister partially removed the knife from his pocket while walking within close proximity of Sergeant Slaughter and swearing at him. We find Brister's actions communicated an apparent ability to inflict serious bodily harm with his knife.

Finally, we note Brister's brief argument that the “Second Amendment protects his legal right to have a pocketknife in his pocket.” Brister fails to develop this argument beyond the assertion of his Second Amendment rights. “Issues not briefed are deemed waived or abandoned.” State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). While it is true the Second Amendment of the United States Constitution protects an individual's right to bear arms, Brister cites no caselaw that would permit him, under the facts of this case, to use his knife to threaten Sergeant Slaughter.

Sufficient evidence supported Brister's aggravated assault conviction.

Did the District Court err by Failing to Instruct the Jury on the Lesser Included Offense of Assault?

Brister's second argument on appeal is that the district court committed reversible error by failing to instruct the jury on the lesser included offense of assault as defined in K.S.A. 21-5412(a).

Standard of Review

Appellate courts follow a multi-step process when reviewing challenges to jury instructions:

“First, the court considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, the court applies an unlimited review to determine whether the instruction was legally appropriate; then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and, finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011). [Citation omitted.]” State v. Bentley, 317 Kan. 222, 242, 526 P.3d 1060 (2023).

Brister did not object to the jury instructions at trial. Therefore, we consider whether the district court's failure to give a lesser included offense instruction amounts to clear error. K.S.A. 22-3414(3). Under that standard, we must determine whether we are firmly convinced that the jury would have reached a different verdict if the instructional error had not occurred. The party alleging error has the burden of proof, and we make a de novo determination based on the entire record. Bentley, 317 Kan. at 242.

Discussion

Our analysis begins by considering whether a jury instruction for the lesser included crime of assault would have been legally and factually appropriate. In general, a jury instruction for an offense that is a lesser degree of the same crime is legally appropriate. State v. Phillips, 312 Kan. 643, 668, 479 P.3d 176 (2021). A lesser included offense instruction is factually appropriate when there is some evidence that would reasonably justify a conviction of a lesser crime. State v. Lowe, 317 Kan. at 718.

Brister was charged with aggravated assault with a deadly weapon as defined in K.S.A. 21-5412(b)(1). The crime of assault is defined as “knowingly placing another person in reasonable apprehension of immediate bodily harm.” K.S.A. 21-5412(a). Notably, the difference between the charge of aggravated assault with a deadly weapon and simple assault is only the deadly weapon element. The two crimes otherwise contain the same elements. Lowe, 317 Kan. at 719.

Under Kansas law, a lesser-included crime includes “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged․” K.S.A. 21-5109(b)(2). Because each of the elements of assault are contained within the definition of aggravated assault with a deadly weapon, assault is a lesser-included crime, and a jury instruction for the crime of assault would have been legally appropriate. Phillips, 312 Kan. at 668.

A jury instruction for the lesser included offense of assault would have also been factually appropriate:

“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” K.S.A. 22-3414(3).

Here, there was sufficient evidence that Brister committed the crime of aggravated assault, “which necessarily means an instruction on simple assault was factually appropriate” regardless of the defense theory. Lowe, 317 Kan. at 720.

We also note that the State failed to address whether a jury instruction for the lesser included offense of assault would have been legally and factually appropriate. Issues not adequately briefed are deemed waived or abandoned. State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021). Thus, we find that an instruction that allowed the jury to consider the lesser included offense of assault would have been both legally and factually appropriate.

We turn then to our final inquiry—whether the district court's failure to give the lesser included offense instruction was clearly erroneous, requiring reversal.

In State v. Williams, 308 Kan. 1439, 1459, 430 P.3d 448 (2018), the Kansas Supreme Court considered whether the district court's failure to instruct the jury on assault as a lesser included offense of aggravated assault with a deadly weapon resulted in clear error. In Williams, the defendant was convicted of aggravated assault based on his use of a baseball bat as a “deadly weapon.” 308 Kan. at 1459. On appeal, Williams argued that the district court erred by failing to instruct the jury on the lesser included offense of assault. The court began its analysis by noting a jury instruction for assault would have been both legally and factually appropriate. The court then considered whether the district court's failure to instruct was clearly erroneous, first noting the standard of review. “Even though error occurred, because Williams did not object to the lack of the instructions during the trial he must establish clear error by firmly convincing us that the jury would have reached a different verdict had the instruction error not occurred.” 308 Kan. at 1458. The court then turned to the facts of the case. “The difference between this charge of aggravated assault and assault centers on whether Williams used a deadly weapon. Thus, Williams must firmly convince this court the jury would have concluded the baseball bat was not a deadly weapon if instructed on the lesser included offenses.” 308 Kan. at 1459. The court concluded that under the facts of the case, the district court's failure to instruct did not result in clear error. 308 Kan. at 1459.

In Lowe, the Kansas Supreme Court considered the same issue—whether the failure to instruct on the lesser included offense of assault constituted clear error. Lowe was convicted of aggravated assault related to an altercation with her ex-husband's girlfriend. After the altercation ended, Lowe was leaving in her vehicle when she swerved at the girlfriend, nearly striking her. On appeal, Lowe argued that the district court should have instructed the jury on the lesser included offense of assault. 317 Kan. at 713. The State conceded that the omitted instruction would have been legally appropriate, and the Supreme Court determined that it would have been factually appropriate based on its de novo review, leaving only the issue of whether the failure to instruct resulted in clear error. 317 Kan. at 720.

The court concluded that the failure to instruct did not result in clear error. It reasoned that

“the jury rejected Lowe's version of events that denied swerving her car toward or close to Logsden. And depending on how it interpreted her intention, it was a question for the jury to determine whether her actions turned the car into a deadly weapon. But nothing in the record establishes the jury would have reached a different result, especially given the conflicting versions requiring multiple credibility determinations.” 317 Kan. at 721.

Similarly, we are tasked with determining whether we are firmly convinced “that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 308 Kan. at 1458. Here, the jury rejected Brister's version of events. Brister testified that after he learned there was someone parked on the street near his home, he looked around, saw a vehicle, and merely threw his hands up. Brister claimed that he walked through the house, “dropped the knife on the ground at the doorway” and took only two steps out of the house. When the person in the vehicle identified himself, Brister claimed to throw his hands up and walk back inside the house.

Instead, the jury found that Brister placed Sergeant Slaughter in reasonable apprehension of immediate bodily harm with a weapon. The jury rejected the idea that Brister dropped his knife in the doorway of the home. And there is no evidence in the record that a jury could have relied on to find Brister intended to use the knife in any other way than as a weapon. The evidence at trial was that Brister aggressively approached Slaughter with a knife in his pocket. Brister partially withdrew the knife from his pocket while walking toward Slaughter and yelling profanities. The jury found that those actions constituted aggravated assault. We find no evidence in the record to firmly convince us the jury would have reached a different result had it been presented with a jury instruction for the lesser included offense of assault. The district court's failure to instruct was not clearly erroneous.

Affirmed.

Per Curiam: