Assault & Aggravated Assault

Assault: Assault is either of two types. 1. Where the defendant intended to create reasonable apprehension (fear) of imminent bodily harm or offensive touching to another through threats or acts of violence, with the apparent ability to do so and does in fact create a well-founded fear in the victim that such violence is imminent. Or 2. Assault is sometimes viewed as an attempted battery. The attempted battery scenario requires that the defendant specifically intend to cause harm and that the defendant committed an overt act that comes close to achieving the harm. For example someone takes a swing at the back of your head, while you are facing the opposite direction. The swing misses the head. An Assault (attempted battery) has occurred even though the victim may not have been aware of this attempted strike to the head. This form of assault focuses more on the state of mind of the defendant and not on the fear of the victim. Further one can be charged with both Assault and Battery, i.e. make threatening words of violence and then strike the victim. Violation of this crime is a 2nd degree Misdemeanor Florida Statute: 784.011.

Case Law Update

Sending written threats to kill or do bodily harm — “Sending” of threat — Electronic communications — Defendant who posted threats on his personal Facebook page was properly convicted of violation of section 836.10, Florida Statutes — State made out prima facie case against defendant by submitting facts showing that defendant composed a threat to kill or do serious bodily injury, sent that communication to another, and the communication threatened a member of the recipient’s family — Defendant’s motion to dismiss was properly denied

Aggravated Assault: An Aggravated Assault is an assault with a deadly weapon (e.g. gun, knife, baseball bat) without intent to kill, or it is an assault with intent to commit a felony such as rape, mayhem. Violation of this crime is a 3rd degree Felony. Florida Statute 784.021.

Apparent Ability

In both Assault and Aggravated Assaulted cases, the State must prove not only did the Defendant intend to create reasonable apprehension of fear in another, but also which in fact does create such reasonable apprehension fear in the victim. The State must also prove that the Defendant had the apparent ability to commit violence. A defendant who pulls out a knife and turns and faces a shopkeeper and does not make any menacing motions towards the victim, nor make any statements to the victim was still viewed by an Appellate Court as having the “apparent present ability” to commit violence on the shopkeeper, because the knife may be thrown or used at any time while in the defendant’s possession.

Well-Founded Fear or Reasonable Fear

The State must also prove that the fear suffered by the victim was well-founded or reasonable. Reasonable is an “objective test” as to what a normal rational person would fear. A defendant who jokes about throwing a soft pillow at someone and the victim is placed in fear would probably be viewed as not a reasonable fear. This would be a defense to the charge of assault since the victim’s reasonable fear is an important element for the crime of assault. However, if the Defendant was aware of the victim’s fragile state of mind and never-the-less played on the victim’s sensibilities with the intent of placing fear in him or her, then an Assault charge would probably stand.

Defenses: Justification, Self-Defense, Intoxication, Diminished Capacity. A Defense attorney, besides attacking the State’s case as to whether or not the State has met their burden of proof beyond a reasonable doubt in proving the elements of assault or aggravated assault as discussed above, may also raise defenses to the charges. Issues include as to whether or not the State’s alleged victim was in fact the “original aggressor” and the Defendant was justified in defending himself.

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