Assault & Aggravated Assault

An assault is simply a threat to do physical harm to someone.  The crime of assault is a misdemeanor, but it can be upgraded to a felony charge depending upon how the threat is made.  For example, if you point a firearm at someone’s head, that crime is a felony known as ‘aggravated assault with a firearm’.  If you hold a knife to someone’s throat, it’s a felony ‘aggravated assault with a deadly weapon’.  In addition to the various upgrades that come about via the weapon of choice, a misdemeanor assault may also be enhanced if the threat is made against a protected person.  Thus, a threat to do harm to a police officer will be charged as an ‘aggravated assault against a law enforcement officer’. Also, certain school employees and sports officials (referees, umpire, linesman) are part of this protected class that will upgrade your misdemeanor to a felony.  You see the pattern here?  Our legislature typically has nothing better to do than to find new ways to upgrade charges, so that come re-election, they can tell the people back home how important it is to protect umpires and linesman....

But there’s more to an assault than just how the threat was made, or who the threat was made against.  A typical assault is made up of three elements.  First, assault requires an intentional, unlawful threat.  Second, there must be an apparent ability to carry out the threat, and third, the threat must create a well-founded fear that violence is imminent. 

Defending an assault case requires careful attention to the three elements.  Let’s take a look at a real world example of how this works.  In the case of H.W. v. State, 79 So.3d 143 (Fla. 3^rd DCA 2012), the juvenile defendant “H.W.” (we never get the real name of a juvenile defendant, fyi) was convicted of assault on a school administrator.  H.W. was called to the administrative offices of his middle school for disciplinary action due to a previous school infraction, and was given a three day suspension.  H.W. loves school so much and didn't want to miss one day of it (much less three) that he became verbally abusive toward the school administrator who handed down the penalty, calling her a “bit@#”, shouting “f--- you”, and “lifted his shirt and ... paced back and forth” in front of the administrator’s desk (school employees don’t get paid enough to take this type of abuse, do they?).  id at 144. H.W. left the office, but returned to tell her that “something bad was going to happen to her…that day”, and “you’re going to die today”, claiming that he would make sure she got “put to sleep”. Id.

Remember that a key element in an assault case is proving that violence is imminent.  The court overturned H.W.’s conviction, reasoning that “H.W.’s words did not create a well-founded fear that he would do something to [the school administrator] at that time”. Id. [emphasis in original] Basically, the court found that H.W.’s threat that “something bad was going to happen to her…that day” was “insufficient to show violence was imminent.”  Id at 146. 

In an assault case, words may not be enough to prove imminent violence, so courts  require the State to prove some sort of “physical act directed toward the victim” to show that violence is imminent.  For example, in cases where a person points a gun, the pointing of the gun qualifies as ‘a physical act’ that can create a well-founded fear that violence is imminent.  One court upheld an assault conviction in which the defendant put his fist in his mother’s face and said ‘Leave me alone you f-ing bitch.  I’m going to punch you in the f-ing face’ (nice kid, huh?).  K.E.H. v. State, 802 So.2d 395, 396 (Fla. 4^th DCA 2001).   The physical presence of the fists in the face qualified as “imminent violence”.  But, a lack of imminent violence was found in the case of Gagnard v. Sticht, where the defendant threatened to kill the victim and to “F’ him up”, but there was no evidence that Gagnard made any overt acts justifying the victim’s contention that violence was imminent.  886 So.2d 321, 322 (Fla. 4^th. DCA 2004).

Another common threat that does not qualify as an assault is known as the ‘conditional threat’.  The conditional threat sets out what will happen “if” someone does something.  For example, in one common scenario, a defendant told his girlfriend that he would physically harm her if she was around another man.  Typical jealous dude--but is that criminal?  The boyfriend’s threat listed above is conditional, and when a Florida court confronted just such facts, it found that the boyfriend simply set “out a conditional threat to do injury at some unspecified future time based upon a possible eventuality, and this does not constitute an assault”.  Butler v. State, 632 So.2d 684, 685 (Fla. 5^th DCA 1994).

As you can see from the above, a "simple assault" is not so simple.  But don't worry, I know a great defense attorney that can help out with assault cases, just pick up the phone and ask away.  Thanks.