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77.3 Aggravated Assault (Assault With A Deadly Weapon, Etc.)

    77.3.3 Aggravated Assault: Defenses And Defense Theories

    77.3.3.1 Assault With A Deadly Weapon: Defense Theory That Bare Hands Or Feet Are Not Deadly Weapons
    77.3.3.2 Aggravated Assault: Defense Theory That The Object Used Was Not A Deadly Weapon
    77.3.3.3 Aggravated Assault: Athletic Contest As Defense Theory
    77.3.3.4 Aggravated Assault: Self Defense
    77.3.3.5 Aggravated Assault: Battered Person Syndrome
    77.3.3.6 Aggravated Assault: Accident
    77.3.3.7 Aggravated Assault: Additional Defenses And Defense Theories

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RATIONALE: Without special instruction the jury may not understand whether hands and/or feet can be a deadly weapon and, if so, how to make that determination.

POINTS AND AUTHORITIES: There is a split of authority as to whether bare hands or fists may be considered deadly weapons. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.15, fn. 68.11; see also Wharton’s Criminal Law (West, 15th ed. 1993) § 197, pp. 475-77.)

    Some jurisdictions hold that the jury should not be permitted to rely upon the defendant's bare hands or feet to satisfy the deadly weapon element for assault with a deadly weapon. (See e.g., People v. Aguilar (CA 1997) 16 C4th 1023, 1034 [68 CR2d 655]; State v. Townsend (ID 1993) 865 P2d 972, 977; cf. People v. Azor (NY 1998) 678 NYS2d 238, 240 [arm used to choke victim not "dangerous instrument" within meaning of robbery statute].) In such jurisdictions the jury should be so instructed. For example, according to People v. Aguilar (CA 1997) 16 C4th 1023, 1034 [68 CR2d 655], the jury may rely on the use or attempted use of bare hands or bare feet to convict the defendant of assault by means of force likely to produce great bodily injury but the jury must be instructed to find that as a result of the physical force used or attempted to be used and the manner of such use or attempt, there was a likelihood of great bodily injury being inflicted upon another person. (Aguilar, 16 C4th at 1037.)

    Other jurisdictions hold that even though bare hands and feet are not deadly weapons per se, they may be considered as deadly weapons by their manner of use. (See e.g., Smith v. Hardrick (GA 1995) 464 SE2d 198, 200; Vogg v. Commonwealth (KY 1948) 214 SW2d 86, 87; State v. Davis (MN 1995) 540 NW2d 88, 91 [defendant used his hands and feet in a manner likely to produce death or great bodily harm]; State v. Davis (MN 1995) 540 NW2d 88, 90.) In such jurisdictions the jury should be instructed that it cannot find bare hands and feet to be deadly weapons unless they are used in a manner likely to cause death or great bodily injury.

    See also FORECITE National™ 77.3.2.1 [Assault: Footwear May Be Deadly Weapon Depending On Manner Of Use].

    See FORECITE National™ 106.4.4.13 [Dangerous Or Deadly Weapon: Whether Bare Hands Are A Deadly Weapon].

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

LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.15, fn. 68.11.

Wharton’s Criminal Law (West, 15th ed. 1993) § 197, pp. 475-77.

See generally, FORECITE National™ 77.3.1.2 [Aggravated Assault:  Federal Circuit Model Instructions And Notes].

    You may not convict the defendant of assault with a deadly weapon or instrument based on the use or attempted use of [bare hands] [and] [or] [feet].

    [Bare hands] [Fists] [and] [or] [Feet], whether or not with shoes, are not deadly weapons in and of themselves. To be deadly weapons the [hands] [fists] [and] [or] [feet] have to be used in a manner likely to produce death or great bodily harm.

[See State v. Davis (MN 1995) 540 NW2d 88, 90.]

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RATIONALE: Without special instruction the jury may not understand the requirements for determining when an object which was not made as a weapon may be considered a deadly weapon.

POINTS AND AUTHORITIES: Dangerous and deadly weapons are typically divided into two classes.

    The first class includes instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that, as a matter of law, they may be said to be dangerous and deadly weapons. (People v. Graham (CA 1969) 71 C2d 303, 327 [78 CR 217]; see also State v. Lenz (NE 1988) 419 NW2d 670, 673; but see Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) Instruction 7 ["Deadly Force/Nondeadly Force"] p. 268 (South Carolina CLE, 1994) [ordinarily deadly weapon may be used in a nondeadly manner].)

    The second class, includes instrumentalities such as ordinary razors, pocket-knives, canes, hammers, hatchets and vehicles, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed. (Graham, 71 C2d at 327-28.) For this class of instrumentalities, which includes vehicles, the jury may not conclude that the instrumentality was a deadly or dangerous weapon unless it finds: (1) that the instrument could be used as a dangerous or deadly weapon and, (2) that the defendant intended so to use it. (Id. at 328.)

    See FORECITE National™ 106.4.4.11 [Dangerous Or Deadly Weapon Defined: Consideration Of Manner Of Use And Overall Circumstances].

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

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 77.3.1.2 [Aggravated Assault:  Federal Circuit Model Instructions And Notes].

    The instrumentality which the prosecution alleges to have been a deadly weapon, namely __________, may not be found to be a deadly weapon for purposes of these instructions unless you find beyond a reasonable doubt that:

    1. The instrument could be used as a deadly weapon, and

    2. The defendant intended to use it as a deadly weapon.

    A deadly weapon shall mean any device or instrument which, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.

[See State v. Lenz (NE 1988) 419 NW2d 670, 673.]

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    77.3.3.3    Aggravated Assault: Athletic Contest As Defense Theory

    See FORECITE National™ 252.6.5.1 [Assault: Consent To Bodily Injury -- Athletic Contest].

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

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

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

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    See 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).)