An assault is simply a threat to do physical harm to someone.Assault is a misdemeanor, but it can be upgraded to a felony charge depending upon how the threat is made.For example, if you threaten to kill someone verbally, its a misdemeanor. But, if you point a firearm at someone’s head and repeat that same verbal threat--this becomes an ‘aggravated assault with a firearm’.If you threaten someone's life while holding a knife, that's an ‘aggravated assault with a deadly weapon’.
In addition to the various upgrades that arise out of weapon choice, a misdemeanor assault may also be enhanced if the threat is made against a protected person.So, a threat to do harm to a police officer will be charged as an ‘aggravated assault against a law enforcement officer’ even though no weapons or guns were part of the threat. 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 misdemeanor charges into felonies, so that come re-election, they can tell the people back home how important it is to protect umpires and linesman.
There’s more to an assault than just how the threat was made (weapon, firearm), or who the threat was made against (cop, umpire).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.
- Third, the threat must create a well-founded fear that violence is imminent.
The Elements of a Verbal Assault
Defending an assault case requires careful attention to the three elements above.Here's a real world analysis of these elements. In the case of H.W. v. State, 79 So.3d 143 (Fla. 3rd DCA 2012), the juvenile defendant named “H.W.” was convicted of assault on a school administrator (we never get the real name of a juvenile, FYI).
H.W. was in middle school, and called to the administrative offices for disciplinary action due to a previous school infraction. He was given a three day suspension. H.W. dreaded missing school, he loved school, and upon hearing of the three day suspension he became verbally abusive toward the school administrator who handed down the penalty, calling her a “bit@#”, shouting “f--- you”. Also, H.W. “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, eventually, 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. Have you ever heard of such a menacing middle school kid? Again, I'm pretty sure these folks don't get paid enough to take this type of abuse. Anyway.
Remember that a key element of an assault 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.Assault Requires "Imminent Violence"
When defending an assault case, the physical layout of where the assault happened can play an important role. As such, it may be important to go back to the scene and get pictures of the area. Here's why. When the state attempts to prove that violence is "imminent", the scene of the crime may tell a different story.
For example, if the charge is an aggravated assault with a deadly weapon, a knife, what if you can show that it would be physically impossible for the knife to get to the victim given the circumstances? If you can show this, there is no crime of assault. This exact scenario played out in the case of Sullivan v. State, 898 So.2d 105 (Fla. 2d DCA 2005), in which the aggravated assault conviction was overturned because the distance between the knife and the alleged victim was too great for the court to find any sort of imminent violence (cop, hiding behind squad car, could not have been hit by knife).
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. 4th 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. 4th. DCA 2004).
On an assault case, its also important to know your audience. Who was it that, supposedly, heard the threat? Were they in a condition to understand the threat? Was the person in a condition to form a "well-founded fear that violence is imminent?" I had a case years ago in which it was alleged that the boyfriend hovered over his girlfriend, while sleeping, with a knife. A third party saw this incident and called the police. Case dismissed, because the girlfriend had no well-founded fear while she was sleeping.
In the recent case of Davis v. State, Davis was convicted of aggravated assault with a firearm, by making threats with a gun towards a one-and-a-half year old child. 2017 Fla. App. LEXIS 9415 (Fla. 4th DCA 2017). After this incident, the child was screaming and crying, but was this the child's "well-founded fear that violence was imminent", or "was the child crying because that is what one-and-a-half year old children do from time to time? Or, was the child crying because the child's innate sense of fear was alerted by the defendant's violent actions and the adult victims' reactions of hysteria, screaming, and crying? . . . While I recognize that a one-and-a-half year old child's cognitive and communicative abilities are limited, we do not know at what point in a child's development that a child experiences fear." Id. Basically, the prosecutors never presented any evidence that the child felt violence was imminent.
Another aggravated assault was thrown out on similar grounds in the case of Prey v. State, where it was held that the prosecutor presented "no evidence of the five month old infant victim's perceptions or feelings and thus there was inadequate proof of an assault." 571 So. 2d 554, 555 (Fla. 4th DCA 1990).Conditional Threats may not Constitute an Assault
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, we've all heard this one before--but is it 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. 5th DCA 1994). Thus, no assault.Aggravated Assault With a Deadly Weapon
On rare occasion, a police officer may actually "undercharge" a citizen. Meaning, that citizen may deserve a more serious crime, but for whatever reason, the officer simply arrests on a lower crime. But these situations are short lived, as some eager prosecutor will gleefully point out to his boss how he caught the officer's mistake and, as any 'tough on crime' prosecutor would do, he filed more serious charges. A misdemeanor assault may be upgraded to a felony charge when a deadly weapon is used as part of the threat. A common example of this would be an Aggravated Assault with a Firearm, in which the firearm is pointed at someone in a threatening manner. So, firearms make for an easy charging decision, but there are many other items out there that prosecutors believe are just as deadly as firearms, and thus just about any misdemeanor assault may be upgraded to felony aggravated assault with a deadly weapon. A real life example of how this works can be found in the case of J.P. v. State, 2013 LEXIS 10095 (Fla. 3d DCA 2013).
J.P. was convicted of aggravated assault with a deadly weapon because he was throwing rocks at someone. No, that "someone" was not moving in a vehicle on the highway, and the "rocks" were not the size of softballs. According to the appeal's court, these rocks were "quarter-sized" and thrown "softly". So, how did J.P. end up with a felony conviction, and what did the appeals court have to say about this?
First, we must define a deadly weapon -- "an item which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm...or...because of the way it is used during a crime." Id. And this begs the question; are quarter-sized rocks deadly? It depends. If these rocks were launched on the tip of an arrow from a compound bow, I'd say yes. If these rocks were launched from some sort of professional hunting sling shot (is there such a thing?), I'd say probably. But that's not the facts before us. J.P. was convicted, yes convicted, of felony aggravated assault with a deadly weapon for "softly" throwing "quarter-sized" rocks. I have to repeat this several times not to bore you, but to convince myself that this is real. Fortunately, the appeals court stopped the insanity and overturned the felony conviction, finding that these rocks did not meet the definition of a deadly weapon. That being said, the appeals court did find that J.P. committed misdemeanor assault, just not the more serious felony. Should you want a more complete analysis of this case, click on my creatively titled article "When Is a Weapon Considered a "Deadly Weapon?" The article also reviews various household items, and whether or not courts have found them to be deadly -- bicycles, skateboards, broom handles, flower pots, darts, glass bottles, forks. Sure, its not the most interesting topic in the history of mankind, but if you're facing prison time on an aggravated assault charge--nothing changes your focus in life like a potential prison sentence. Now, all of the sudden, this stuff is interesting.
As a side note, aggravated assault with a firearm no longer carries a 3 year minimum mandatory prison sentence (as of 2016).
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.