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VOLUME 7 - CHAPTER 77
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77.1 Assault

    77.1.2 Assault: Miscellaneous Issues

    77.1.2.1 Assault: Distinction Between "Intent To Frighten" Assault And "Attempted Battery" Assault
    77.1.2.2 Assault: Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of The Charge?
    77.1.2.3 Simple Attempted-Battery Assault: Intoxication Not A Defense

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VOLUME 7 - CHAPTER 77

    77.1.2.1    Assault: Distinction Between "Intent To Frighten" Assault And "Attempted Battery" Assault

PRACTICE NOTE: At common law, assault could be predicated upon an intent to frighten or an attempted battery. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 716, PP. 312-13; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:01 [Second Degree Assault] (Micpel, 1999).)

    With the intent-to-frighten type of assault, there must be an apparent present ability to commit the battery and the victim must be aware of the impending battery. (Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 166-67; LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.16(b), p. 316; Harrod v. State (MD 1985) 499 A2d 959, 964; Dixon v. State (MD 1985) 488 A2d 962, 966-70.)

    On the other hand, the attempted-battery assault requires a substantial step toward completion of the battery as well as the apparent present ability to commit the battery. However, unlike the intent-to-frighten type of assault, the victim does not need to be aware of the impending battery. (See Harrod v. State, 499 A2d at 960-62; see also Young v. State (MD 1985) 493 A2d 352, 356.)

    A third form of assault which has been recognized is "sexual touching" assault. (See In the Matter of A.B. (D.C. 1989) 556 A2d 645; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.06 [Assault] p. 242 (Bar Association of the District of Columbia, 4th ed. 1993).)

See generally, FORECITE National™ 77.1.1.2 [Assault:  Federal Circuit Model Instructions and Notes].

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VOLUME 7 - CHAPTER 77

    77.1.2.2    Assault: Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of The Charge?

    See FORECITE National™ 256.6.2.5 [Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?].

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VOLUME 7 - CHAPTER 77

PRACTICE NOTE: Most jurisdictions do not recognize intoxication as a defense to assault. (See e.g., U.S. v. Landau (1997) 956 FSupp 1160, 1162; Williams v. State (AL 1996) 710 So2d 1276, 1332; People v. Colantuono (CA 1994) 7 C4th 206, 213, fn 3 [26 CR2d 908]; Height v. State (GA 1994) 448 SE2d 726, 729; State v. Schindele (ND 1995) 540 NW2d 139, 142; but see FORECITE National™ 77.5.3.1 [Aggravated Assault: Intoxication As Defense Theory].)

   Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of The Charge? See FORECITE National™ 256.6.2.5 [Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?].

See generally, FORECITE National™ 77.1.1.2 [Assault:  Federal Circuit Model Instructions and Notes].