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10/2/2011 18:37 by Anonymous |
Assault and Battery
Depending on the facts, a person can be charged with assault or with assault and battery.
Assault/Assault & Battery
Assault and Assault & Battery are two separate crimes. (1) An assault can be committed in either of two ways: (a) It is an attempted battery or (b) an immediately threatened battery. In the first form of assault, the attempted battery, the state must prove the following elements: (1) That the Defendant intended to commit a battery (a battery is a harmful or unpermitted touching); (2) That the defendant took some overt step toward accomplishing that intent; (3) That the Defendant came reasonably close to doing so. [If I walk up to you and I intend to hit you and I take a swing at your head and you duck out of the way and my fist just misses your head I have committed the crime of assault (the attempted battery type)].
In the second form of assault, the imminently threatened battery, the state must prove the following elements: (1)That the Defendant intended to put the alleged victim in fear of an imminent battery; (2) That the Defendant engaged in some conduct toward the alleged victim which the alleged victim reasonably perceived as imminently threatening a battery. [If I approach you and I do NOT intend to hit you but rather I intend to put you in fear that you are about to get hit and I cock my hand back and say I'm going to knock your head off and you believe that you are about to get hit, then I have committed the crime of assault (the immediately threatened battery type).]
The law recognizes two types of assault and battery: (a) Intentional Assault & Battery and (b) Reckless Assault & Battery In order to prove an intentional assault and battery the state must prove three elements beyond a reasonable doubt: (1) That the Defendant TOUCHED the person of the alleged victim without having any right or excuse for doing so; (2) That the defendant intended to touch the alleged victim; and (3) That the touching was EITHER likely to cause bodily harm to the alleged victim or was done without the consent of the alleged victim.
In order to prove an assault and battery by reckless conduct the state must prove two elements beyond a reasonable doubt: (1)That the defendant intentionally engaged in actions which caused bodily injury to the alleged victim. The injury must be sufficiently serious to interfere with the alleged victim's health or comfort. It need not be permanent, but it must be more than trifling. For example, an act that only shakes up a person or causes only momentary discomfort would not be sufficient. (2) The state must prove that the Defendant's actions amounted to reckless conduct. A person acts recklessly if he knew, or should have known, that his actions were very likely to cause substantial harm to someone, but he ran that risk and went ahead anyway. In very short unprecise terms, a swing and a hit is an assault and battery. A swing and a miss is an assault. The formal technical definitions are set out above.
Attorney Robert D. Lewin.