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77.1 Assault

    77.1.3 Attempted Battery Assault: Defenses And Defense Theories

    77.1.3.1 Attempted-Battery Assault: Requirement Of Intent To Commit A Battery
    77.1.3.2 Attempted-Battery Assault: Accidental Touching As Defense Theory
    77.1.3.3 Attempted-Battery Assault: Lack Of Knowledge As Defense Theory
    77.1.3.4 Attempted-Battery Assault: Requires Either Intent To Commit Battery Or An Act "Substantially Certain" To Result In A Battery
    77.1.3.5 Attempted-Battery Assault: Defense Theory That A Battery Was Not Substantially Certain To Result From The Act Committed
    77.1.3.6 Attempted-Battery Assault: Consideration Only Of Circumstances Known To Defendant When The Act Was Committed
    77.1.3.7 Attempted-Battery Assault: Defense Theory That Victim's Injuries Should Only Be Considered When Relevant To Intent
    77.1.3.8 Attempted-Battery Assault: Defense Theory That Lack Of Injury Shows Lack Of Intent To Injure
    77.1.3.9 Attempted-Battery Assault: Intent To Frighten As Defense Theory
    77.1.3.10 Attempted-Battery Assault: Recklessness Or Negligence As Defense Theory
    77.1.3.11 Attempted-Battery Assault: Defense Theory That Nonviolent Touching Did Not Injure The Victim's Feelings
    77.1.3.12 Attempted-Battery Assault: Lack Of Present Ability As Defense Theory
    77.1.3.13 Attempted-Battery Assault: Present Ability Defined -- Unloaded Gun
    77.1.3.14 Attempted-Battery Assault: Self Defense
    77.1.3.15 Attempted-Battery Assault: Battered Person Syndrome
    77.1.3.16 Attempted-Battery Assault: Accident
    77.1.3.17 Attempted-Battery Assault: Additional Defenses And Defense Theories

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    77.1.3.1    Attempted-Battery Assault: Requirement Of Intent To Commit A Battery

PRACTICE NOTE: Many cases characterize the mens rea required for assault as a general intent rather than specific intent. (See e.g., People v. Colantuano (CA 1994) 7 C4th 206, 213 [26 CR2d 908]; People v. Rocha (CA 1971) 3 C3d 893, 899 [92 CR 172]; People v. Hood (CA 1969) 1 C3d 444, 456 [82 CR 618]; People v. Walker (CO 1981) 634 P2d 1026, 1927 ["violently applies physical force" does not connote a specific intent to inflict serious bodily injury]; State v. Wraggs (MO 1973) 496 SW2d 38, 41 [general intent in common assault is intent to commit act of physical force against another or to create apprehension of immediate physical danger, whereas felonious intent is specific intent to do great bodily harm]; Commonwealth v. Ford (MA 1997) 677 NE2d 1149, 1152 [assault is general intent crime with no intent to injure required].)

    While, conceptually it is difficult to understand how an attempt to commit a battery can be considered a general intent when the substantive crime of attempt requires specific intent to commit the intended offense, the obvious practical reason for this counter-intuitive approach is to preclude intoxication as a defense to assault. (See e.g., People v. Colantuano (CA 1994) 7 C4th 206, 213 [26 CR2d 908].)

    However, regardless of whether the intent is characterized as specific or general, unless there is an intent to commit a battery there should be no conviction for attempted-battery assault. "[I]t is black letter law that one cannot unintentionally commit the crime of assault." (In re Gavin T. (CA 1998) 66 CA4th 238, 240 [77 CR2d 701].)

RESEARCH NOTES:

Annotation, Intent To Do Physical Harm As Essential Element Of Crime Of Assault With Deadly Or Dangerous Weapon, 92 ALR2d 635.

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

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RATIONALE: When the defense theory to a charge of assault is that the touching was accidental an explanatory defense theory instruction may be necessary to assure the jury understands and properly considers the theory.

POINTS AND AUTHORITIES: Because attempted-battery assault requires an intent to touch or apply physical force, the jury must find beyond a reasonable doubt that any touching did not happen accidentally. (See Commonwealth v. Appleby (MA 1980) 402 NE2d 1051, 1058.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: This instruction would not be appropriate where the assault is based on a statute which defines assault as an intent to frighten. (See FORECITE National™ 77.2 [Intent To Frighten Assault].) If the defendant intended to frighten it would not matter whether or not the touching was accidental. (Ibid.) On the other hand, if the victim's fear was caused accidentally there would be no assault. (See FORECITE National™ 77.2.2.6 [Intent To Frighten Assault: Accident].)

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

    A touching is not an assault if it was accidental. If you have a reasonable doubt whether the defendant intended to touch _______________ (name of alleged victim) you must give the defendant the benefit of that doubt and return a verdict of not guilty.

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RATIONALE: Knowledge is an essential element of attempted-battery assault which the jury may not understand without a specific instruction.

POINTS AND AUTHORITIES: Attempted-battery assault is defined as requiring an intent to apply physical force.  (See FORECITE National™ 77.1.3.1 [Attempted-Battery Assault: Requirement Of Intent To Commit A Battery].) Hence, "[i]t is not enough for the jury to find that the defendant did the act which resulted in the touching."  (Commonwealth v. Ford (MA 1997) 677 NE2d 1149, 1152). The defendant must willfully engage in conduct, the nature of which is likely to result in a violent injury to another. (People v. Colantuano (CA 1994) 7 C4th 206, 219, fn 10 [26 CR2d 908].)

    To willfully engage in such conduct, the defendant must "be aware of the nature of the conduct and choose to ignore its potential for injury ...." (Colantuano, 7 C4th at 220.) In other words, it must be "known" to the perpetrator that a battery is "substantially certain to result ...." (Colantuono, 7 C4th at 219; In re Daniel R. (CA 1993) 20 CA4th 239, 246, fn 5 [24 CR2d 414] [defendant required to be aware of presence of potential victims]; Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 7, § I, p. 835; FORECITE National™ 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person]; see also FORECITE National™ 46.1 [Willfully Defined: Knowledge Element].)

    An instruction which does not require a jury finding as to the perpetrator's awareness of the nature of the act's potential for injury may permit conviction based upon innocent behavior. For example, the current instruction would permit conviction for assault in a situation where a mail carrier delivered a letter bomb about which he or she had no knowledge. Delivering the bomb would be an intentional act which by its nature would probably and directly result in the application of physical force. Therefore, without the added requirement of knowledge the carrier would be liable for assault.

   See also FORECITE National™ 46.1 [Willfully Defined: Knowledge Element].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

    Assault requires that the defendant committed the act with actual knowledge that a forcible and unlawful touching of another person was substantially certain to result from commission of the act.

    If you have a reasonable doubt whether defendant had the required knowledge you must give the defendant the benefit of that doubt and return a verdict of not guilty.

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    77.1.3.4    Attempted-Battery Assault: Requires Either Intent To Commit Battery Or An Act "Substantially Certain" To Result In A Battery

RATIONALE: When the evidence permits a finding of assault upon an intent to commit a battery or an intent to commit an act likely to result in a battery, the jury should be instructed that one or the other of these elements must be proven.

POINTS AND AUTHORITIES: See FORECITE National™ 77.1.3.1 [Attempted-Battery Assault: Requirement Of Intent To Commit A Battery] and FORECITE National™ 77.1.3.3 [Attempted-Battery Assault: Lack Of Knowledge As Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

BRIEFING AVAILABLE:  Click here.  [Brief Bank # B-915].

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

    The intent element of assault requires that the defendant either:

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RATIONALE: If assault is to be based on the commission of an act likely to result in a touching -- rather than upon an actual intent to touch -- there must be a measure of how likely it is that a touching will result. This measure should be substantial certainty.

POINTS AND AUTHORITIES: People v. Colantuono (CA 1994) 7 C4th 206, 218-19, fn 10 [26 CR2d 908] clarified the nature of the conduct necessary to constitute an assault by explaining that "the nature of the assaultive conduct itself contemplates physical force or 'injury' ...." (Colantuono, 7 C4th at 218.) In explaining the requisite intent, Colantuono relied upon Professor Perkins' analysis that the consequences (i.e., the unlawful touching) must be "substantially certain to result ...." (Colantuono, 7 C4th at 219.)

    See also FORECITE National™ 46.1 [Willfully Defined: Knowledge Element].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

    An assault may be based on the intentional commission of an act likely to result in [an application of physical force] [an unlawful touching]. An act is likely to result in the [application of physical force] [unlawful touching] if it is substantially certain to result from commission of the act. In other words, the nature of the assaultive conduct must contemplate [an application of physical force] [an unlawful touching].

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RATIONALE: The jury should be instructed to limit its consideration of the knowledge of the consequences issue to the circumstances which were actually known to the defendant when the act was committed. Otherwise, there is a danger that a finding of the requisite knowledge may be based upon circumstances which occurred after the act was committed and about which the defendant was unaware.

POINTS AND AUTHORITIES: An assault based on an attempted battery requires that the defendant intentionally commit an act with knowledge that it was substantially certain to result in a violent injury to another person. (See FORECITE National™ 77.1.3.3 [Attempted-Battery Assault: Lack Of Knowledge As Defense Theory].) Obviously, this requirement must be based upon only those circumstances known to the defendant at the time the act was committed. (See e.g., FORECITE National™ 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person]; see also State v. Sampson (WA 1985) 699 P2d 1253, 1256 [reasonableness of defendant's use of force toward another is to be evaluated from defendant's perspective and facts and circumstances known to defendant].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

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    77.1.3.7    Attempted-Battery Assault: Defense Theory That Victim's Injuries Should Only Be Considered When Relevant To Intent

RATIONALE: Because assault normally does not require the infliction of any injury upon the victim, it may be argued that evidence of the actual injuries should only be considered when relevant to intent.

POINTS AND AUTHORITIES: Depending on the required elements of the assault charge the extent of the victim's injuries may be immaterial and irrelevant. (See e.g., State v. Davis (NM 1979) 591 P2d 1160, 1166-67 [jury instructed to disregard the testimony regarding the extent of the victim's injuries]; see also State v. Foster (MO 1974) 513 SW2d 657, 662 [the real injury inflicted is not material except in so far as it may tend to show that the means were calculated to inflict serious bodily harm].) As one court observed:

    "It is settled law that upon a prosecution for assault with intent to kill, while the assault may exist, be perpetrated, and be proven, whether a wound be inflicted or not, yet as the intent with which the assault was made is a necessary element in the case, of which proof, direct or circumstantial, must be made, it has been held almost uniformly that the fact that a wound was inflicted is permissible to be proved as evidence of intent."

(State v. Baird (MO 1917) 195 SW 1010, 1013; see also Paramore v. State (FL 1970) 238 So2d 604, 605 [jury instructed to consider, inter alia, "evidence or lack of evidence of injuries" as to whether intercourse was consensual]; State v. Williams (MO 1977) 548 SW2d 227, 232; cf.; State v. Layton (MO 1933) 58 SW2d 454, 458.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.4].

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

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RATIONALE: Although assault does not require injury, whether or not an injury is inflicted may be considered in deciding the defendant's intent. Hence, it may be appropriate to instruct the jury to consider "whether or not" an injury occurred.

POINTS AND AUTHORITIES: The actual injuries received by the victim may be relevant to the intent element of an assault charge. (See FORECITE National™ 77.1.3.7 [Attempted-Battery Assault: Defense Theory That Victim's Injuries Should Only Be Considered When Relevant To Intent].) For example, CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 9.00 [Assault-Defined] (West, 6th Ed. 1996) informs the jury that it may consider "if an injury is inflicted."

    However, the absence of an injury may also be relevant to the jury's determination of intent. For example, if the defendant contends that the act was intended to merely scare the victim without actual imposition of physical force, the fact that no injury was actually inflicted could be supportive of such a theory. Hence, there should be the right to a specific defense theory instruction on this point when appropriate.

    Moreover, because "[t]here should be absolute impartiality as between the people and the defendant in the matter of instructions. ..." (People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485], accord Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]), any instruction on injuries should permit consideration of both the presence and absence of actual injury. Instructions which give an unfair advantage to the prosecution violate the "balance" required by the due process clause of the 14th Amendment. (See FORECITE National™ 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].)

    See FORECITE National™ 270.7.1.1 [Does "Firmly Convinced" Language Better Focus The Jury On The Lack Of Evidence?].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

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

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RATIONALE: Where an assault charge is based on a statute requiring an attempted battery, an intent to frighten is insufficient to convict. Therefore, where this is the defense theory, specific instruction may be appropriate.

POINTS AND AUTHORITIES:  See People v. Tran (CA 1996) 47 CA4th 253, 261 [54 CR2d 650]; McGee v. U.S. (DC 1987) 533 A2d 1268, 1270 [where only attempted-battery assault is charged, the defendant's mere "brandishing" of a gun is not sufficient to prove the required intent to commit a battery]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.16(a), p. 313.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

    The defendant may not be convicted of assault with a firearm if he merely intended to frighten _____________ (name of alleged victim) and if his intent was not an attempt to apply physical force against him.

    If after consideration of all the evidence you have a reasonable doubt that the defendant intended to apply physical force against ________________ you must find him not guilty of assault with a firearm in count two.

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RATIONALE: Where a charge of assault is based on a statute requiring an attempted battery, there must be an intent to commit a battery. Hence, mere recklessness or negligence is insufficient and, when this is the defense theory, specific instruction may be appropriate.

POINTS AND AUTHORITIES: "Reckless conduct alone does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another. [Citation.]" (See People v. Williams (CA 2001) 26 C4th 779, 794 [111 CR2d 114]; State v. Pack (OH 1996) 674 NE2d 1263, 1266 [jury should have been instructed that proof of reckless conduct is insufficient to prove the elements of felonious assault]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.16(b), p. 313.)    

    This principle also applies to aggravated assault. (See e.g., Orban v. Vaughn (3rd Cir. 1997) 123 F3d 727, 732 [recklessness is insufficient to support a conviction for aggravated assault]; Commonwealth v. Nichols (PA 1997) 692 A2d 181, 187 ["mere recklessness" is insufficient to support a conviction for aggravated assault because the statute requires a higher degree of culpability, i.e., that which disregards the threat posed to human life by the offending conduct"]; State v. Messer (TN 1988) 756 SW2d 292, 294.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

    Reckless conduct alone is not sufficient to constitute an assault.

SAMPLE INSTRUCTION # 3:

    Mere recklessness or criminal negligence is not enough to convict the defendant of assault. The defendant must have had actual knowledge of facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.

    Unless all jurors agree that the prosecution has proven beyond every reasonable doubt that the defendant had the required knowledge when [he] [she] committed the alleged act[s], the defendant may not be convicted of assault.

[See People v. Williams (CA 2001) 26 C4th 779, 794 [111 CR2d 114]; see also People v. Colantuano (CA 1994) 7 C4th 206, 219 [26 CR2d 908].]

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    77.1.3.11    Attempted-Battery Assault: Defense Theory That Nonviolent Touching Did Not Injure The Victim's Feelings

PRACTICE NOTE: People v. Colantuono (CA 1994) 7 C4th 206, 214, fn 4 [26 CR2d 908] reaffirmed the statutory interpretation of "violent injury" to include a slight touching which injures the victim's "feelings." However, the language of some pattern instructions (e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 9.00 [Assault-Defined] (West, 6th Ed. 1996) ("application of physical force")) do not require jury consideration of the victim's feelings.

    See also FORECITE National™ 77.9.4.4 [Battery: Defense Theory That Victim Suffered No Physical Injury Or Emotional Distress].

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

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RATIONALE: If present ability to commit a battery is an element of attempted-battery assault, the jury should be instructed that this is an element of the charge.

POINTS AND AUTHORITIES: In some jurisdictions present ability to commit a battery is an element of assault. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.16, pp. 313-14.)

    However, some cases have defined present ability in terms of temporal proximity rather than the assailant's actual ability to consummate the threat. (See e.g., People v. Valdez (CA 1985) 175 CA3d 103, 111 [220 CR 538] [present ability element is satisfied where the ability to injure is only "a moment away"]; see also People v. Reeves (MI 1998) 580 NW2d 433, 437.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: Present ability not required for intent-to-frighten assault. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.16, p. 315.)

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

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RATIONALE: Because attempting to shoot a person with an unloaded gun does not pose an actual danger there is not assault in jurisdictions where present ability is an element of assault.

POINTS AND AUTHORITIES: At common law assault required that the defendant have the actual present ability to inflict a battery or otherwise cause injury. (See 6A Corpus Juris Secundum, Assault and Battery § 68.)

    As the states have statutorily codified the crime of assault, some have retained the requirement of actual present ability, while others have required only apparent present ability to inflict injury. (See Cobb v. State (AL 1984) 495 So2d 701, 704 [actual]; People v. Vaiza (CA 1966) 244 CA2d 121, 124 [52 CR 733] [actual]; People v. Gholston (CO 1967) 432 P2d 636, 637 [actual]; Bass v. State (FL 1970) 232 So2d 25, 26 [apparent]; Casey v. State (TE 1972) 491 SW2d 90, 93 [apparent].)

    Where actual present ability is required, attempting to shoot someone with an unloaded gun does not constitute the crime of assault because the perpetrator lacks the "present ability" to inflict injury. (People v. Valdez (CA 1985) 175 CA3d 103, 111 [220 CR 538]; see also People v. Bekele (CA 1995) 33 CA4th 1457, 1463 [39 CR2d 797]; People v. Sheldon (CA 1989) 48 C3d 935, 961-62 [258 CR 242]; see also People v. Burnside UNPUBLISHED (G010050) [refusal of defense theory instruction on present ability held to be prejudicial error].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See also FORECITE National™ 106.4.4.7 [Deadly Weapon Defined: Defense Theory That Weapon Was Unloaded].

See also FORECITE National™ 118.3.5 [Armed With Firearm: Defense Theory That Weapon Was Unloaded].

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

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    See generally FORECITE National™ 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

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    See generally FORECITE National™ 253.1 [Battered Person’s Syndrome].

    See FORECITE National™ 256.1 [Battered Person’s Syndrome].

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    See generally FORECITE National™ 252.2 [Accident].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ AFFIRMATIVE DEFENSES AND DEFENSE THEORIES (VOLUME 11).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ BASIC ELEMENTS OF CRIMINAL LIABILITY AND DEFENSES THERETO (VOLUME 5).)