Photo: Kelowna Art YouTube

Kyle Zsombor in 2013 speaking about his exhibit at the time at the Kelowna Art Gallery

A Kelowna-based artist who punched a friend, leaving him with a permanent brain injury, has failed in an appeal of his conviction.

Kyle Steven Zsombor, who has attracted past news coverage for art projects, was convicted in August 2020 of an aggravated assault on Joseph Gates in relation to an incident on April 4, 2018.

Zsombor and Gates were longtime friends who were out drinking amongst friends on the night of the assault.

The group started at Zsombor’s home at 7 p.m., before moving to the Doja Café at about 10:30 p.m., which was then owned by Trent Kitsch, who was a part of the group, according to the appeal decision.

At about 11:45 p.m., Zsombor went to the bathroom and the others left without him to get something to eat. Shortly afterwards, Zsombor went out to find them. He caught up with the others, and the now-smaller group returned to the cafe and went to the alley behind it.

Zsombor was upset that the group left without him. Gates tried to calm Zsombor and in the process, pushed him multiple times with one hand while holding a beer in the other. The incident was caught by the cafe’s surveillance camera.

After the fourth push, Zsombor punched Gates in the head, knocking him unconscious, and sending him falling backwards to the ground.

“As described by Mr. Kitsch, Mr. Zsombor attempted to continue fighting with Mr. Gates, but stopped immediately when he realized Mr. Gates had been knocked out and was injured,” the appeals decision says.

The original trial judge found the testimony of both Gates and Zsombor “neither reliable nor credible,” but found Kitsch’s testimony credible.

The brain injury suffered by Gates has resulted in “ongoing cognitive impairment and physical symptoms.”

Zsombor argued at trial he punched Gates in self-defence, but Justice Dennis K Hori disagreed, noting Gates had his hands and arms lowered when he was hit by Zsombor.

He ruled the punch was an offensive action.

“While I recognize in some situations a strong offence is the best defence, in the circumstances of this confrontation between childhood friends, it was not necessary to take such an offensive approach,” Hori ruled.

A three-judge panel upheld that ruling on appeal.

The second prong of Zsombor’s appeal argued the trial judge failed to consider Gates consented to a mutual fight.

The appeals court, however, ruled the issue of a consensual fight was never raised at trial.

“A ‘consent fight’ defence was never advanced; indeed, it was not apparent on the evidence. Accordingly, the trial judge was not obligated to deal with consent,” ruled Justice David Frankel, on behalf of the panel.

Zsombor was sentenced in July 2021 to an 18-month conditional sentence order, meaning he was able to avoid prison time by abiding by conditions. He did not appeal his sentence.