ASSAULT

2nd Degree - Misdemeanor

 

Definition

A person may not commit an assault. CR § 3-203(a)

There are three different types of criminal assault:

1. A consummated battery

2. An attempted battery

3. A placing of a victim in reasonable apprehension of an imminent battery.

Lamb v. State, 93 Md. App. 422, 428 (1992)

 

Elements Checklist

From Pattern Jury Instruction 4:01

Battery:

-          Defendant caused physical contact with the victim

-          The contact was harmful or offensive

-          The contact was the result of an intentional or [criminally] reckless act of the defendant

-          The contact was not consented to by the victim

 

Attempted battery (common law assault):

-          Defendant tried to cause immediate offensive physical contact or harm to victim

-          Defendant intended to bring about offensive physical contact or harm

-          Defendant’s actions were not consented to by the victim

 

Imminent apprehension of battery (common law assault merged from tort law):

-          Defendant committed an act intended to place the victim in fear of immediate offensive physical contact or harm

-          Defendant had the apparent ability, at that time, to bring about the offensive physical contact or harm

-          Victim reasonably was placed in apprehension of immediate offensive physical contact or harm

 

Necessary witnesses

1)      Witness who observed/perceived the assault

2)      Identifying witness (or circumstantial proof identifying defendant as the assailant)

 

(Proving lack of consent may make it difficult – though not impossible – to proceed without a victim or at least a witness who observed the beginning of the incident)

 

Sentence

10 years or a fine not exceeding $ 2,500 or both. CR § 3-203(b)


Quick Questions

What if I don’t have my victim? (See p. _____________)

You don’t absolutely need a victim to testify in order to prove an assault (you don’t even need to know the victim’s name). You do need a witness who can provide evidence:

1)      that there was no consent by the victim if it’s the type of assault where consent might be an issue (the victim didn’t say “I want you to punch me” – not hearsay because it’s not to prove the truth of the matter asserted, i.e. that the victim actually wanted the defendant to punch them. Rather, it’s offered to negate the possibility that the words were said and as circumstantial evidence that consent was not given – similar to contract law.)

2)      that there is no legal defense (victim didn’t start the fight, or that even if the victim did start the fight the defendant escalated it unlawfully)

 

What if the defendant says that he was acting in self-defense or that he has some other defense?

            It’s the defendant’s duty to raise an affirmative defense. See chapter on “defenses”

 

What if the defendant didn’t mean to hurt the victim? (See p. _________)

Doesn’t matter. All the defendant has to do is intentionally act so that the victim would be put in apprehension of an assault (showing a weapon can be sufficient).

 

What if the victim recants on the stand? (See chapter on “impeachment”)

            You can impeach them with their prior inconsistent statements by having the officer/witness to whom they made the statement testify.

 


Relevant Background

Effective October 1, 1996, all forms of assault both statutory and common law were abrogated and replaced with the two-tier first/second degree system. Robinson v. State, 353 Md. 683, 696 (1999)

 

The definitions of assault, battery, and assault and battery kept their judicially determined meanings. CR § 3-201(b).

 

Charging

Charging language:

An indictment, information, other charging document, or warrant for [2nd degree assault] is sufficient if it substantially states: "(name of defendant) on (date) in (county) assaulted (name of victim) in the [2nd] degree in violation of (section violated) against the peace, government, and dignity of the State." CR § 3-206(a)

 

Identifying the victim:

The victim doesn’t have to be named in the charging document – “unknown/John Doe” is sufficient as long as the description is sufficient for them to be classified as a person. Edmund v. State, 398 Md. 562, 577 (2007)

 

Separate offenses:

Separate acts resulting in separate insults to the victim may be separately charged and punished even though they occur in very close proximity to each other and are part of a single criminal episode or transaction. Graham v. State, 117 Md. App. 280, 290 (1997)

 

Two questions to be addressed in determining whether convictions merge:

First, is the conduct constituting each assault sufficiently separate from the conduct necessary to establish the other so that dual convictions offend neither a sense of basic fairness nor essential protections of the Double Jeopardy Clause?

Second, does the record show that the trier of fact relied on different conduct for each offense?

Graham v. State, 117 Md. App. 280, 289 (1997)

 

Witnesses

No victim is required to testify in order to convict a defendant of assault. See Edmund v. State, 398 Md. 562 (2007) (convicted even where victim was unknown and was named as “unknown/John Doe” in charging document).

 

Jury instructions on assault in the second degree do not require an instruction on justification or consent where “it is clear that there is neither justification nor consent.” MPJI-Cr 4:01

 

Circumstantial Evidence Sufficient

Where victim left in defendant’s custody at time of incident along with a small child sustained injury that small child could not have inflicted, sufficient evidence to convict of first degree assault. Owens v. State, 170 Md. App. 35, 103 (2006)


The Three Types of Assault

1) Battery

            Definition

Battery is traditionally defined as the unlawful application of force against another, either directly or indirectly. Marquardt v. State, 164 Md. App. 95, 129 (2005)

 

Amount of Force Required

Battery occurs where there is an actual physical injury or an offensive touching. Lamb v. State, 93 Md. App. 422, 433 (1992)

 

Indirect Contact

The force used need not be applied directly to the body of the victim, as in the usual case where one shoots at another or strikes him with knife, club or fist. It may also be indirectly applied to the victim, as where one whips the horse on which the victim is riding, causing the horse to bolt and throw his rider, or where one compels another to touch him in a way offensive to the other. So too a battery may be committed by administering a poison or by infecting with a disease. Lamb v. State, 93 Md. App. 422, 448 (1992)

 

A battery clearly may be committed by indirect means. Taylor v. State, 52 Md. App. 500, 504 (1982)

 

Examples of Battery

Battery includes: “kissing another without consent, touching or tapping another, jostling another out of the way, throwing water upon another, rudely seizing a person's clothes, cutting off a person's hair, throwing food at another, or participating in an unlawful fight. On the other hand, a battery may take the form of a severe beating.” Marquardt v. State, 164 Md. App. 95, 129 (2005)

 

Unintended Batteries

Specific intent to harm the victim is not the only mens rea that may give rise to the crime of battery. There are two separate forms of unintended battery:

o       The first is where the physical harm is the result of criminal negligence

o       The other is where the harm results unintentionally from the defendant's doing of an unlawful act which is malum in se.

Lamb v. State, 93 Md. App. 422, 454 (1992)

 

An unintended battery requires only a general intent to do 1) the criminally negligent act or 2) the unlawful act (malum in se), with no thought being necessary as to the consequences of such act. Lamb v. State, 93 Md. App. 422, 455 (1992)

 

The requisite criminal negligence necessary for conviction of an unintentional battery may be equated to the culpability required for a conviction of involuntary manslaughter. The test is whether the defendant's misconduct, viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe. Elias v. State, 339 Md. 169, 184 (1995)

 

The act of pointing a firearm at a nearby human being, without being certain that the weapon will not discharge, supports a conviction for battery where the unintended discharge of the weapon results in a wounding short of death. Duckworth v. State, 323 Md. 532, 542 (1991)

See also Hensen v. State, 133 Md. App. 156, 159 (2000) (convicted of 2nd degree assault where high speed race ended with defendant crashing into victim – court did not discuss the application of assault in the opinion)

 

2) Attempted Battery

            Definition

Assault has been defined as any attempt to apply the least force to the person of another. Ott v. State, 11 Md. App. 259, 265 (1971)

 

Mens Rea/Criminal Intent

As an attempt, attempted battery is a specific intent crime. The specific object or purpose intended is the commission of a battery, the inflicting of physical injury upon the victim or some other offensive touching of the victim. As with all attempts, the assault of the attempted-battery variety is established regardless of whether the effort succeeds or fails to achieve its purpose. Lamb v. State, 93 Md. App. 422, 434 (1992)

 

An assault of the attempted battery variety requires a specific intent to perpetrate a battery. No purpose to threaten or frighten the victim is implicated, although it certainly is not precluded. An attempted battery can be perpetrated on a victim who is asleep, is facing in another direction or is otherwise oblivious of any danger. Lamb v. State, 93 Md. App. 422, 445 (1992)

 

For an assault of the attempted battery variety, there must be an apparent present ability from the viewpoint of the would-be assailant. Unless he thinks he can execute the battery, he will lack the required specific intent to do so.
Lamb v. State, 93 Md. App. 422, 443 (1992)

 

A specific purpose to inflict a particular injury is not necessary. General malevolence or recklessness is sufficient; but mere negligence does not suffice. Ott v. State, 11 Md. App. 259, 265 (1971)

 

            State of mind of victim

The crime of attempted battery does not require that the victim be aware of the attack. Barrios v. State, 118 Md. App. 384, 402 (1997)

 

An attempted battery can be perpetrated on a victim who is asleep, is facing in another direction or is otherwise oblivious of any danger. Lamb v. State, 93 Md. App. 422, 445 (1992)

 

 

Indirect Force

An assault may be committed by indirect means. Taylor v. State, 52 Md. App. 500, 504 (1982) (where defendant set fire to house and victim lept from house to escape fire, proper to convict of assault)           

 

3) Placing Victim in Imminent Apprehension

            Mens Rea/Criminal Intent

An assault of the intentional frightening variety requires a specific intent to place the victim in reasonable apprehension of an imminent battery. That the assailant knows that he lacks any ability to follow through on his threat or definitely does not intend to carry through on the threat is of no consequence.
Lamb v. State, 93 Md. App. 422, 443-5 (1992)

 

State of Mind of Victim

For an assault of the intentional frightening variety, the assailant may be guilty even though he knows full well that he lacks any ability to follow through on his threat. All that is required in terms of perception is an apparent present ability from the viewpoint of the threatened victim. If, on the other hand, the would-be victim of the threat is unaware of the threatening conduct or perceives the threatening conduct but knows, for instance, that the gun is defective, there is no apprehension of an imminent battery and, therefore, no assault of the threatening variety. Lamb v. State, 93 Md. App. 422, 443 (1992)

 

All that is required in terms of perception is an apparent present ability from the viewpoint of the threatened victim." Hill v. State, 134 Md. App. 327, 356 (2000)

 

            Examples ofImminent Apprehension”

Where defendant demanded that victim give him an A for the class or defendant would kill him, sufficient to convict of assault where he then raised his jacket to display a gun in a holster. Hill v. State, 134 Md. App. 327, 356 (2000)

 

            This form of assault is not inchoate

Assault of the intentional threatening variety is not in any sense inchoate. It is a fully consummated crime once the victim is placed in reasonable apprehension of an imminent battery. Lamb v. State, 93 Md. App. 422, 442 (1992)

 

Defenses to Assault      <See Defenses Generally>

            Self-defense

            Defense of others

            Etc