Assault can be categorized as one of two types when attempting to explain legal issues to a client and their family: (1) an attempted battery or (2) placing another in fear or apprehension of an imminent battery. Assault does not involve touching and is not synonymous with the crime of battery.
Assault as a Form of Attempted Battery
Assault is frequently referred to by criminal defense attorneys as an attempted battery. While a failed attempt at striking someone would technically be considered simple assault, there may also be a prosecution where a suspect creates a well founded fear in his or her victim. See Florida Statutes on Assault.
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
784.021 Aggravated assault.–
(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.
(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
There is no charge of attempted battery: Assault can occur where the defendant is unsuccessful in his attempt to commit a battery. Remember that: (1) the act must be done with intent to commit a harmful or offensive touching (recklessness or negligence aren’t enough); and (2) the would-be-victim need not be aware of the danger.
To establish an assault, it is not necessary that there have been actual physical contact with or injury to the person assaulted. In other words, there is no requirement that a battery accompany an assault as an element of the offense.Thus, the pointing of a gun at another may constitute an assault, even though the defendant does not actually fire the gun or injure the victim when he or she has an opportunity to do so.
The attempted battery form of assault requires that the defendant specifically intend to cause the harm (the unlawful touching), and that the defendant commit an overt act that comes close to achieving the harm. For example, in a recent criminal case, someone intended to strike a victim and allegedly threw a punch that missed the back of his head. An assault (attempted battery) was filed by the appropriate prosecutor even though the victim was unaware of the punch. This form of assault focuses on the defendant’s mental state and physical act, while ignoring the victim’s state of mind.
Unlawful Demonstration of Violence
The other form of assault is referred to as an “offer” type of assault or unlawful demonstration of violence. Offer assault requires that the defendant commit an act which places the victim in reasonable apprehension of being struck. Apprehension in this case is simply an expectation of an unwanted touching; the victim need not be “fearful” of some serious injury. The apprehension, however, must be reasonable and it must be apprehension of an imminent touching. Someone who merely gives you the “evil eye” should not create reasonable apprehension of a battery; just as someone threatening to shoot you next week does not threaten imminent harm. Threats of future harm are not included within the crime of assault although they are often covered by statutes that criminalize the act of communicating a threat.