Live Issues
by: Ryan • February 2, 2015 • no comments
You wouldn't think there would be any open questions left about what it takes for the state to prove assault. The crime has been around a long time. But there are many live issues, many things you can do to push back the goal line another few feet. One of them was just settled in our favor last year, in State v. Fletcher. It held that a person had to know the "dangerous weapon" he used was in fact a dangerous weapon. The trial attorney who preserved that issue -- who I will call "Brad" because that's his name -- reports that when the case was remanded, a deal was worked out that dramatically reduced Mr. Fletcher's sentence.
So one issue down, a few more to go. What are they?
(1) "Knowingly" doesn't apply to serious physical injury, but "intentionally" does
There's actually case law on this one. State v. Barnes says knowingly doesn't apply to serious physical injury but State v Peacock says intentionally does. Assault II based on serious physical injury has a knowing mental state. But the most common theory of Assault I is:
- (a) Intentionally causes serious physical injury to another by means of a deadly or dangerous weapon;
So you would want to ask for an instruction that says the defendant must have intended a serious physical injury. Sure, in some cases, the instruction won't help much but in the odd case, especially those involving odd weapons, it can make a huge difference.
Note that the state may claim that Peacock is no longer good law. The problem with that argument is that the analysis in favor of applying intentionally to serious physical injury has only gotten stronger: serious physical injury is a result and "intentionally" -- unlike knowingly -- applies to results, per statute.
(2) In an assault II, a defendant must know he is engaged in "assaultive behavior"
State v. Barnes. And it's why you should ask for a special instruction that states your client must know he was engaged in assaultive behavior. Again, this won't apply to a number of assault IIs, but it will apply to some. Is a shove "assaultive behavior" or a "shake"? Such things can inadvertently result in serious physical injury but weren't remotely intended to. This instruction might give you an argument you didn't otherwise have.
(3) The failure to define "assaultive behavior" violates due process
So the defendant must know he is engaged in assaultive behavior but if you, the prosecutor and the judge can come up with a definition that works, I'd be surprised. Most of the time your client's behavior is obviously assaultive but sometimes, it's a close call. A definition would really help. The failure to define it creates a vagueness problem that is a real problem. Make it the state's problem.
(4) The defendant must negligently cause serious physical injury in an assault II Barnes says "knowingly" doesn't apply to serious physical injury. it doesn't say another mental state wouldn't. Where hte injury truly is a fluke, make the state prove a criminal negligence mental state. Contact me if you want to the full argument. If you don't get the instruction in a case where you could really use it, you'll likely get a reversal.
