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Assault

Everything you need to know when charged with assault, and how we attack the issue head on to either vindicate you or mitigate your charges

What is the Definition of assault?

At Common Law, an assault is an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm.  With that said, it’s important to keep in mind that an assault can occur even if no physical contact was made. 

What Are the Different Assault Charges In Michigan?

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. That the accused either attempted to commit a battery or did an act that would cause a reasonable person to fear or apprehend an immediate battery. A battery is a forceful, violent, or offensive touching of the person or something closely connected with the person of another; and 
  2. The accused intended either to commit a battery or to make the complainant reasonably fear an immediate battery; and
  3. At the time, the accused had the ability to commit a battery, appeared to have the ability, or thought he/she had the ability.

Special Considerations

  • Threats are not sufficient; there must be proof of violence actually offered.
  • This type of assault “may be committed without actually touching the person of the one assaulted.”
  • The inquiry turns on what the victim perceived, and whether the apprehension of imminent injury was reasonable.
  • A jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery.
  • If the victim is particularly bold, brave, or brash, the defendant is still guilty of assault if a more “reasonable” victim would have feared a battery.

Penalty

Misdemeanor punishable by imprisonment for not more than 93 days, a fine of not more than $500, or both.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused engaged in a forceful, violent, or offensive touching of the complainant or something closely connected with the complainant regardless of whether injury occurred;
  2. The accused intended the nonaccidental touching of the complainant against the complainant’s will; and 
  3. The accused intended either to commit a battery upon the complainant or to make the complainant reasonably fear an immediate battery.

Special Considerations

  • A person must commit a willful touching of another in order to be convicted of a battery. Criminal negligence (recklessness) is not enough.

Penalty

Misdemeanor punishable by imprisonment for not more than 93 days, a fine of not more than $500, or both.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused tried to physically injure another person;
  2. When the accused committed the assault, he or she had the ability to cause an injury or at least believed that he or she had the ability;
  3. The accused intended to kill the person he or she assaulted, and the circumstances did not legally excuse or reduce the crime.

Special Considerations

  • Assault with intent to murder requires an actual intent to kill. An intent to inflict great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of an action is to cause death or great bodily harm, while sufficient to support a conviction of second-degree murder, is insufficient to support a conviction of assault with intent to murder.
  • Provocation that would reduce a murder to the lesser offense of voluntary manslaughter is a defense to assault with intent to murder.
  • The necessary intent to kill may be inferred from circumstantial evidence.  This may include the nature of the defendant’s acts constituting the assault; the temper or disposition of mind with which those acts were apparently performed; whether the instrument and means used were naturally adapted to produce death; the defendant’s conduct and declarations before, during, and after the assault; and all other circumstances that may throw light on the intent with which the assault was made.
  • The assault must occur under circumstances where the crime would have been murder if death had resulted. If the crime would have been manslaughter, because of the absence of malice, there can be no conviction of assault with intent to murder.

Penalty

Felony punishable by imprisonment for life or any number of years.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused either attempted to commit a battery on the complainant or did an act that would cause a reasonable person to fear or apprehend an immediate battery.
  2. The defendant intended either to injure the complainant or to make the complainant reasonably fear an immediate battery.
  3. At the time, the defendant had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability; and 
  4. When he or she assaulted the complainant, the defendant intended to commit a felony  (it does not matter whether this felony was actually committed).

Special Considerations

  • Although the scope of the statute is broad, it does not include all felonies because the statute requires a specific intent.
  • The specific intent to commit some other felony is an essential element of this crime and may be difficult for the prosecution to prove beyond a reasonable doubt under the particular facts and circumstances of the case.

Penalty

Felony punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused tried to physically injure another person;
  2. The accused intended to injure the complainant or intended to make the complainant reasonably fear an immediate battery; and 
  3. The assault caused a serious or aggravated injury (one that requires immediate medical treatment or that causes disfigurement, impairment of health, or impairment of a part of the body).

Special Considerations

  • Aggravated assaults must occur without a weapon.

Penalty

Misdemeanor punishable by imprisonment for not more than one year, a fine of not more than $1,000, or both.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused tried to physically injure another person;
  2. At the time of the assault, the accused had the ability to cause an injury or at least believed that he or she had the ability; and 
  3. The accused intended to cause great bodily harm (which means any physical injury that could seriously harm the health or function of the body).

Special Considerations

  • It is not necessary for any actual injury to occur.
  • Intent to cause serious harm can be inferred from the defendant’s actions, including using a dangerous weapon or making threats.

Penalty

Felony punishable by imprisonment for not more than 10 years, a fine of not more than $5,000, or both.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused either attempted to commit a battery on the complainant or did an act that would cause a reasonable person to fear or apprehend an immediate battery;
  2. The accused intended either to injure the complainant or to make the complainant reasonably fear an immediate battery;
  3. At the time, the accused had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability; and 
  4. The accused  committed the assault with an alleged dangerous weapon.

Special Considerations

  • While the defendant’s intent may be inferred from particular conduct, it is critical that the jury be instructed that it must consider all of the facts and circumstances in determining the defendant’s state of mind. This includes the nature of the defendant’s acts constituting the assault; the temper or disposition of mind with which those acts were apparently performed; whether the instrument and means used were naturally adapted to produce death; the defendant’s conduct and declarations before, during, and after the assault; and all other circumstances that may throw light on the intent with which the assault was made.
  • A dangerous weapon is any object that is used in a way that is likely to cause serious physical injury or death. The following are per se (automatically) dangerous; gun, revolver, pistol, knife, iron bar, club, brass knuckles
  • Objects that are not dangerous weapons per se but may be used as weapons include an automobile, a machete, a shoe,  a booted foot, a beer bottle, and a dog.
  • Bare hands and teeth do not count as dangerous weapons under this statute.

Penalty

Felony punishable by imprisonment for not more than four years, a fine of not more than $2,000, or both.

What will we do as your Defense Attorney?

These are very serious charges that require an aggressive defense in which all of the facts of the case are thoroughly reviewed. We listen carefully to what our clients tell us in order to both put together a strong defense and mitigate sentencing. We do this in several ways.

First, we never take for granted that the police report is an accurate representation of the incident in question. These reports are usually very biased towards convicting the accused, and are therefore often filled with inconsistencies. We use our client’s testimony, research, private investigators, and crime scene visits to poke holes in the prosecution’s case, and ultimately, prove your innocence or argue that the facts are so that a lenient sentence is appropriate. We always visit the scene of the crime. It’s the only way to learn details showing that the police investigation was flawed or that the prosecution’s eyewitness could not have seen what he or she claims.

The strongest defenses for assault are consent, protection of property or person, and, especially for specific intent crimes, lack of intent. We will use all of the facts in your case to lobby for either dropping the charges or reducing the charge to a lesser offense. 

If the accused is between the ages of 17 and 24 they may be eligible to qualify for a sentence under the Holmes Youthful Trainee Act (HYTA). This Act allows the client to plead guilty, but have the offense dismissed by the court if he or she satisfies the terms set by the court. HYTA does not apply to any felony where the maximum penalty is life imprisonment (such as First Degree Arson). With that said, we always try to plea down to a non–life offense such as simple Second Degree Arson, so that HYTA is available. 

Convincing the prosecutor to reduce the charge to assault should always be on the table.  Mitigating factors that we look out for are things like the state of mind of the accused and whether they were acting in a desperate manner due to drugs or alcohol. Also important is the nature of the relationship between the accused and the victim. Was there provocation? In other words the punishment must fit the crime or we will not stand for it. 

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Email: kerrylawpllc@gmail.com

Tel: (734) 263-1193

Address: 214 S. Main St. Ste 200
                 Ann Arbor MI, 48104
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