DEADLY WEAPON DESIGNATION DURING AN ASSAULT

I get this question a lot about what items are a deadly weapon and what items are not. When you look at the case law on a case by case basis, you end up with a laundry list of all these different items that are considered a deadly weapon and a smaller group that is not considered a deadly weapon. It’s to the point where I think that a better question might be what is not a deadly weapon. I’ve seen case law in aggravated battery cases where somebody’s steel toed boots were considered a deadly weapon. So some deadly weapon like knives, axes, guns, chainsaws, things like that are pretty obvious but there are many other things that people would not think of as a deadly weapon but can be turned into and used as a deadly weapon and then it becomes a jury question as to whether or not a particular item is a deadly weapon.

Steel Toe Boots as a Deadly Weapon

The example I gave earlier, steel toed boots that was an issue which was debated during a trial, the defendant was found guilty and on an appeal, argued that the steel toed boots could not be considered a deadly weapon. However, the appeals court disagreed and agreed with the trial court ruling and found that steel toed boots were a deadly weapon in that case. Now we know based on that case that steel toed boots can be a deadly weapon, so can a construction worker’s hard hat, wrenches, screw drivers and believe it or not, I’ve even had an aggravated battery case where keys on a key ring were a deadly weapon. In this particular case, two women had a love triangle with a man in common and unlike the modern trend where people are open and honest about such things, particularly millennials in open relationships in that age group are much more prevalent, this was not the scenario.

What isn’t a Deadly Weapon?

It was quite the opposite and when the two women found out about each other and one confronted the other one, a fight ensued and the initiator of the fight who was my client was charged with aggravated battery because of a punch that was delivered with a fist while a finger was through a key ring with several keys on it and the other party was cut pretty badly by the impact of that punch. So when you ask about a deadly weapon, I think that based upon the case law and how judges are ruling on the issue, the better question really is what isn’t a deadly weapon? Because if it caused bodily harm and the bodily harm fit the statutory criteria for aggravated battery, a rolled up newspaper could be considered a deadly weapon.

How Does The Intent Of a Perpetrator Affect The Assault Charge?

It’s critical for assault charges and the intent of the perpetrator is also critical in a battery case. Both crimes are predicated on the issue of intent. Generally, in misdemeanor cases we are talking about what’s known as general intent. When you start moving into specific intent crimes such as aggravated battery that’s a completely different ballgame and once again, the basic question, is intent important? The answer is yes. Intent is critical. The most common example given in law school regarding intent issues on assault and battery charges relate to the charge of battery, two people are in a crowded walkway, they perhaps are arguing with each other or they just don’t like each other and one bumps the other one and the one who is bumped promptly contacts the police and tries to have the other person arrested and says they intentionally hit me with their elbow, therefore it’s a battery.

[CTA]

The other person is sitting there going, no, it was an accident we were walking in a crowded walkway. If the jury finds and this is a factual issue, so this is a jury issue unless the jury is waived, if the jury finds that the bumping was intentional, that the prosecutor has met their proof beyond and to the exclusion of every reasonable doubt then the defendant will be found guilty of battery for this bump. However, if the prosecution is not able to overcome the presumption of innocence and the defense of accident or mistake, accident being I accidentally bumped this person, mistake, I didn’t see them coming and I ran into them kind of thing. If the defense successfully mounts that particular defense then one of the key elements to the charge will be defeated.

Assault Charge and Intent

Going back specifically to the assault charge, if someone claims that they have been assaulted by someone and it turns out there was no intent to assault them, then that assault charge will die and the person will not be found guilty. Finally when it comes to intent we run into some interesting legal issues which are pretty novel on surface. They are now well established in case law but when you first run across them as a layperson or a law student, they are sometimes those “Gosh! I never thought of that” moments. What happens when A takes a swing at B, B ducks and C is hit in the face? A is going to argue, I wasn’t trying to hit C at all, C is a friend of mine, I would never hit C. There is one problem with that defense, it will not work because the intent was transferred.

Transferred Intent

The person A may not have intended to hit C but they intended to hit B and if they intended to hit B and hit C by accident they cannot claim that it is a lawful touching or hitting of someone else because they definitely intended to commit an unlawful act by striking B. That’s what is known as transferred intent. When it comes to all variants of assault, felony and misdemeanor and all variants of battery, the element of intent is absolutely critical. As a practical matter, you run into a problem as a defense lawyer and that is a lot of times you will have a client say, that’s not true and the only way to prove that’s not true and intent is in the category of that’s not true, is that your client may have to testify. A person has an absolute right not to testify at a jury trial. There is an optional instruction about a defendant’s right not to testify because it’s the state that has the burden of proof. As a defense lawyer you can ask for this instruction or pass on it.

Personally, I ask for it every time and unless there was a compelling reason not to, I plan on continuing to ask for that instruction because I think the jury needs to be reminded but nevertheless, either way when you are talking about the intent of the perpetrator, this is one of those defenses where if it goes all the way to a trial, the defendant may need to testify and that brings up a lot of problems in and of itself. Generally speaking, defense lawyers don’t like their clients to testify. Most people have not had multiple courses like law enforcement officers and professional expert witnesses where they are taught how to testify in court and it’s very easy for someone’s nervousness to be construed as guilt. So in cases where intent is an issue and the defendant may need to testify, it is absolutely critical that defense counsel properly prepare the witness for testimony.

Coping With Stress During Prosecution

Since I never know how a case is going to go, they all look bad when they come in the door, I always have each and every prospective client get a copy of our list of emotional mastery, tools and techniques we call Coping With Stress During Criminal Prosecution. If I have a client who needs to testify on the issues of intent and they’ve spent six weeks getting no sleep because they are worried, they are going to sound a lot different on the witness stand than if they were using Coping with Stress During Criminal Prosecution and have mastered their stress and testify in a cool, calm and collected manner. So intent is a big issue when it comes to assault charges and battery charges and it’s one where if the defendant is going to testify, obtaining and maintaining emotional mastery is absolutely critical to the successful defense of that case.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is a slightly edited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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