Chapter 77

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77.7 Conditional Assault

77.7.3 Conditional Assault: Defenses And Defense Theories

    77.7.3.1 Conditional Assault: Lack Of Intent To Immediately Enforce Performance Of The Condition As Defense Theory
    77.7.3.2 Conditional Assault: Self Defense
    77.7.3.3 Conditional Assault: Battered Person Syndrome
    77.7.3.4 Conditional Assault: Additional Defenses And Defense Theories

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77.7.3.1 Conditional Assault: Lack Of Intent To Immediately Enforce Performance Of The Condition As Defense Theory

RATIONALE: Without an explanatory instruction the jury may improperly assume that an assault may be based on a conditional threat ever if the defendant did not intent to immediately enforce performance of the condition.

POINTS AND AUTHORITIES: Normally an assault requires the actual commission of a violent act. (People v. Colantuono (CA 1994) 7 C4th 206, 218-19 [26 CR2d 908].) However, a "conditional offer of violence" may constitute an assault if compliance with the condition is demanded immediately and the defendant intends immediately to enforce performance of the condition by the threatened act of violence. (See People v. McMakin (CA 1857) 8 C 547, 548-49; see also People v. Fain (CA 1983) 34 C3d 350, 356-57 [193 CR 890]; People v. Vorbach (CA 1984) 151 CA3d 425, 429 [198 CR 712].) The condition and the defendant's intent to force its performance with the violent act must be actually communicated to the victim. (See e.g., People v. Fain (CA 1983) 34 C3d 350, 356 [193 CR 890].)

The same rule should apply to the intent-to-frighten assault. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 716, p. 318.) Hence, a conditional threat with an unloaded gun made with an intent to frighten is an intent-to-scare assault. (See Sample Instruction # 2, below.)

When appropriate, distinction should be made between "informational words [which] might take the place of a threatening movement or gesture and complete the assault" and words that are "merely threatening" but not informational. Informational words are those which "place[d] another in reasonable apprehension that force may be used." (Commonwealth v. Delgado (MA 1975) 326 NE2d 716, 718 fn. 3.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

BRIEFING AVAILABLE: For briefing and an unpublished opinion discussing the question of whether the intent must be verbalized, click here. [Brief Bank # B-652; Opinion Bank # O-189].

SAMPLE INSTRUCTION # 1 [Conditional Assault: Attempted-Battery]:

    Defendant is charged with assault based on the act of __________ (insert conditional act upon which assault is predicated; e.g., pointing a loaded gun at another person). In order to convict the defendant of assault based upon this act, the prosecution must prove beyond a reasonable doubt that the defendant committed the alleged act and at the time the act was committed:

    1.    The defendant had the present ability to apply physical force [unlawfully touch] the other person;

    2.    The defendant intended to commit the threatened violent act unless the other person immediately performed a condition imposed by the defendant;

    3.    The defendant communicated to the other person [his] [her] intention to commit the violent act unless the condition was immediately performed.

SAMPLE INSTRUCTION # 2 [Conditional Assault: Intent-To-Frighten]:

Words which, under the circumstances, cause a reasonable apprehension of immediate bodily harm may constitute an assault.

If, after consideration of all the evidence, you have a reasonable doubt that under the circumstances the defendant's words caused _____________ (alleged victim) to have a reasonable apprehension of immediate bodily harm, you must give the defendant the benefit of that doubt and find [him] her] not guilty.

[See Commonwealth v. Delgado (MA 1975) 326 NE2d 716; cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 6-3 [Assault] (Lexis, 2nd ed. 1999).]

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77.7.3.2 Conditional Assault: Self Defense

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

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77.7.3.3 Conditional Assault: Battered Person Syndrome

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

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77.7.3.4 Conditional Assault: Additional Defenses And Defense Theories

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™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) 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™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)