In Michigan, assault or assault and battery is a criminal offense that penalizes both the unwanted touching of another person or the attempt or threat of unwanted touching of another person. Contrary to popular belief, you do not actually have to make contact with another person to be charged with a crime. A conviction for assault and battery can result in fines, probation or even possible jail time. This blog will explore the nuances of the charge of assault and the charge of assault and battery.
ASSAULT WITHOUT BATTERY
Michigan law describes simple assault in a number of ways. “An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” People v Joeseype Johnson, 407 Mich 196, 229; 284 NW2d 718 (1979). Also, “[a]n assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.” Id. In addition, an assault is also considered “an attempted battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.” People v Etchison, 123 Mich App 448, 452-453; 333 NW2d 309 (1983). “An ‘assault’ requires that the victim be put in reasonable fear of immediate harm”. People v Sanford, 402 Mich 460, 475; 265 NW2d 1 (1978). Circumstances that may constitute an assault include raising a fist or brandishing a weapon in a way that someone else believes they are about to be hit right away. Throwing a punch or swinging a weapon that misses the intended target can also constitute assault.
“[I]f a defendant intends to commit a battery and perpetrates acts sufficiently proximate to that end to constitute an attempt, he is guilty of a criminal assault notwithstanding the absence of his actual present ability to commit the battery.” People v Smith, 89 Mich App 478, 486-487; 280 NW2d 862 (1979). “Present ability” means it must be necessary for the criminal act to proceed far enough to constitute an assault, bur does not mean that the defendant had the actual means to execute the battery. People v Lilley, 43 Mich 521, 524-525; 5 NW 982 (1880). For example, pointing a gun at someone that is actually unloaded does not get someone off the hook for criminal assault just because fortuitous circumstances unknown prevent him from carrying out a shooting. Factual impossibility has never been a defense to a criminal attempt. People v Jones, 46 Mich 441; 9 NW 486 (1881).
A person is guilty of assault, contrary to MCL 750.81(1), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 17.1):
- First, that the individual either attempted to commit a battery on another person 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.
- Second, that the individual intended either to commit a battery upon another person or to make another person reasonably fear an immediate battery. An assault cannot happen by accident.
- Third, that at the time, the individual had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.
“[A] person who assaults… an individual, if no other punishment is prescribed by law, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 750.81(1).
ASSAULT AND BATTERY
Assault and battery differs from assault in that there must be actual offensive touching. “A battery, or assault and battery, is the wilful touching of the person of another by the aggressor or by some substance put in motion by him; or, as it is sometimes expressed, a battery is the consummation of the assault.” Tinkler v Richter, 295 Mich 396, 401; 295 NW 201 (1940). “Michigan requires that an individual commit a wilful act of touching another person before that individual can be convicted of a battery.” People v Lakeman, 135 Mich App 235, 239; 353 NW2d 493 (1984). Accidental or negligent touching does not constitute battery due to lack of intent. Id.
“Force and violence” means “any wrongful application of physical force against another person so as to harm or embarrass him.” People v Boyd, 102 Mich App 112, 116-117; 300 NW2d 760 (1980). Battery does not require any physical injuries, for any unwanted touching would do. The act of spitting on another person, even when no physical harm is caused, falls within the prohibitions of the statute. People v Terry, 217 Mich App 660, 662-663; 553 NW2d 23 (1996).
A person is guilty of assault and battery, contrary to MCL 750.81(1), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 17.2):
- First, that the individual committed a battery on another person. A battery is a forceful, violent, or offensive touching of the person or something closely connected with the person of another. The touching must have been intended by the defendant, that is, not accidental, and it must have been against another person’s will. It does not matter whether the touching caused an injury.
- Second, that the individual intended either to commit a battery upon another person or to make another person reasonably fear an immediate battery.
“[A] person who… assaults and batters an individual, if no other punishment is prescribed by law, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 750.81(1).
OTHER ASSAULT CRIMES IN MICHIGAN
Assault and battery is considered a low-level misdemeanor in Michigan, but it can be charged as a more serious offense if aggravating circumstances are in play.
- Domestic assault (e.g. assaulting a spouse, former spouse, individual who he or she had a dating relationship, a person with whom he or she had a child in common, or a former resident of your household) is a misdemeanor punishable by a fine up to $500.00 or up to 93 days in jail, or both. MCL 750.81(2).
- Assault and infliction of serious injury, or “aggravated assault”, where a serious or aggravated injury is inflicted, is a misdemeanor punishable by a fine up to $1,000.00 or up to 1 year in jail, or both. MCL 750.81a.
- Felonious assault, or assault with a dangerous weapon, is a felony punishable by a fine up to $2,000.00 or up to 4 years in prison, or both. MCL 750.82.
- Assault with intent to commit murder is a felony punishable by life or any number of years in prison. MCL 750.83.
- Assault with intent to do great bodily harm less than murder is a felony punishable by a fine up to $5,000.00 or up to 10 years in prison, or both. MCL 750.84(1)(a).
- Assault by strangulation is a felony punishable by a fine up to $5,000.00 or up to 10 years in prison, or both. MCL 750.84(1)(b).
- Assault with intent to maim is a felony punishable by a fine up to $5,000.00 or up to 10 years in prison, or both. MCL 750.86.
- Assault with intent to commit felony not otherwise punished is a felony punishable by a fine up to $5,000.00 or up to 10 years in prison, or both. MCL 750.87.
- Assault with intent to rob and steal being unarmed is a felony punishable by up to 15 years in prison. MCL 750.88.
- Assault with intent to rob and steal being armed punishable by life or any number of years in prison. MCL 750.89.
DEFENSES TO CHARGES OF ASSAULT AND BATTERY
Assault and battery is a major misdemeanor charge in Michigan, but some defenses that can be asserted against this charge include, but are not limited to:
- Mistaken Defense or Alibi: The defendant may present evidence that he or she was in another location when the assault occurred so he or she was falsely identified. Defense counsel must provide sufficient notice ahead of trial of the witnesses he or she intends to establish the alibi.
- Self-Defense or Defense of Others: Assault and battery may be justified under circumstances where you were trying to defend yourself or others from the assault and battery of another person by force. “An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” MCL 780.972(2). The force used in self-defense or defense of others must not be excessive under the circumstances.
- Intoxication: Generally, voluntary intoxication is not a defense to a general intent crime. However, a specific intent crime “charged cannot be committed unless the actor entertained a specific intent (e.g. intent to harm) at the time the crime was committed, he or she is not guilty if he did not entertain that intent by reason of intoxication. An assault which requires an intent to put the victim in reasonable fear or apprehension of an immediate battery is a specific intent crime and is subject to the defense of voluntary intoxication. People v Polk, 123 Mich App. 737, 740-741; 333 NW2d 499 (1983).
- Duress: Assault and battery may be justified on the basis of duress if the defendant can present some evidence where the jury can conclude the following: “A) the threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; B) the conduct in fact caused such fear of death or seriously bodily harm in the mind of the defendant; C) the fear or duress was operating upon the mind of the defendant at the time of the alleged act; and D) the defendant committed the act to avoid the threatened harm.” People v Lemons, 454 Mich 234, 247; 562 NW2d 447 (1997). Furthermore, the defendant must present some evidence that the threat was present and imminent, that the threat did not arise from the negligence or fault of the defendant, and that the defendant did not fail to use a reasonable opportunity to escape.
- Lack of Intent to Engage in Offensive Touching: Even when the defendant does not deny striking the victim, a conviction cannot occur if the unconsented contact was accidental or unintentional. If the defendant tripped and fell against the victim under accidental circumstances, then no crime was committed.
ASSAULT AND BATTERY CHARGES ARE SERIOUS, SO DON’T SETTLE FOR LESS THAN THE BEST LEGAL REPRESENTATION IN YOUR CORNER
The police and the prosecuting attorney have substantial resources to pursue convictions, so you need to have a skilled criminal defense lawyer on your side to aggressively protect your rights and hold them to their burden of proving guilt beyond a reasonable doubt. If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.