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
Elements Checklist
From Pattern Jury Instruction 4:01
- 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
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
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
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
Witnesses
No victim is required to testify in order to convict a
defendant of assault. See Edmund v. State, 398
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
The Three Types of
Assault
1)
Definition
Amount of Force Required
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
A battery clearly may be committed
by indirect means.
Examples of
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
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
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
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
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
See also Hensen
v. State, 133
2) Attempted
Definition
Assault has been defined as any
attempt to apply the least force to the person of another. Ott
v. State, 11
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
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
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
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
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
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
Indirect Force
An assault may be committed by
indirect means.
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
State of
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
All that is required in terms of
perception is an apparent present ability from the viewpoint of the threatened
victim." Hill v. State, 134
Examples of “Imminent 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
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
Defenses to Assault <See Defenses Generally>
Self-defense
Defense of others
Etc