Harrod v. State

ALPERT, Judge. We are called upon in this appeal to decide, inter alia, whether a person can be convicted of assaulting another who has suffered no harm and was never aware of the alleged assault. Appellant John G. Harrod was charged with two counts of assault and two counts of carrying a deadly weapon openly with intent to injure. He was convicted of these offenses on December 11, 1984, following a trial without a jury in the Circuit Court for Carroll County (Lerner, J., presiding), and sentenced on January 21, 1985, to two terms of two years’ imprisonment for the assault convictions and two terms of one year’s imprisonment for the weapons convictions, all sentences to run concurrently.

On appeal to this court, appellant presents three questions: I. Was the evidence sufficient to sustain the charge of assault upon James Christopher Harrod?

II

Was the evidence sufficient to sustain the charges of carrying a weapon with intent to injure?

III

Was the sentence imposed based upon an improper factor? ¹³¹ It will be of little solace to appellant that we answer the first question in his favor, for our response to the second and third questions leave his ultimate period of incarceration unchanged. I. The common law crime of assault encompasses two definitions: (1) an attempt to commit a battery or (2) an unlawful intentional act which places another in reasonable apprehension of receiving an immediate battery. Taylor v. State, 52 Md.App. 500, 450 A.2d 1312 (1982), cert. denied, 295 Md. 691 (1983); Woods v. State, 14 Md.App. 627 , 288 A.2d 215 , cert. denied, 266 Md. 745 (1972); R. Perkins and R. Boyce, Criminal Law 159 (3d ed. 1982). The facts in the instant case present this court with an excellent opportunity to explain the distinctions between these two different types of assault.

The assault charges arose out of a confrontation among appellant, his wife Cheryl, and her friend Calvin Crigger. The only two witnesses at trial were appellant and Cheryl Harrod. Cheryl testified that on September 15, 1983, Calvin Crigger came over to visit when she thought appellant had gone to work; that “all of a sudden [appellant] came out of the bedroom with a hammer in his hand, swinging it around, coming after me and my friend [Calvin]”; that Calvin ran out of the house and down the steps; that appellant “had thrown the hammer over top of [Christopher’s] port-a-crib in the living room, and it went into the wall”; that appellant then reentered the bedroom and returned with a five-inch blade hunting knife; that appellant told Cheryl that he was going to kill her and that, if she took his daughter away from him, he was going to kill Christopher; that appellant put the knife into the bannister near Cheryl’s arm; that appellant followed Cheryl out to Calvin’s car and “went after Calvin, going around and around the car.” Appellant testified that he missed his ride to work that day; that he came back home around 10:00 a.m. and went to ¹³² sleep in a back room; that he was awakened by Calvin’s deep voice; that appellant picked up his hammer and, walking into the living room, told Calvin to leave; that Cheryl told Calvin he didn’t have to leave; that he then told Calvin, “Buddy, if you want your head busted in, stand here; if you want to be healthy and leave, go.” Appellant said that Calvin just stood there, so he swung the hammer, Calvin moved his head back, and the hammer struck the wall over Christopher’s crib, which was near the door. In rendering its verdict, the court stated: And, the Court finds beyond a reasonable doubt and to a moral certainty that Mr. Harrod ... came after [Cheryl] and ...

Calvin; and that Mr. Harrod came out of his room swinging a ... hammer, and ultimately threw it, not too far from the child, Christopher, and that he went after both Cheryl and Calvin, down the steps with a knife, with a blade of about four to five inches. The Court finds that he is guilty of two counts of Carrying a Deadly Weapon; that is the knife and the hammer; and, also two counts of Assault; one against Cheryl and one against the minor child. Defense counsel inquired of the court: “On the second count of the Information, is the Court finding specific intent on behalf of the Defendant to injure his child?” The court responded, “Yes. Threw that hammer within a very short distance — sticking it — it was still sticking in the wall.” A. Two Types of Assault Appellant contends that there was insufficient evidence to demonstrate that he harbored a specific intent to injure Christopher when he threw the hammer.

Further, he notes that there was no evidence that Christopher was injured by the hammer or that he was even aware that a hammer was thrown. Therefore, appellant claims that the trial court’s finding that he committed a criminal assault upon Christopher was clearly erroneous. We agree for the reasons set forth below. ¹³³ In reviewing a criminal conviction, we must affirm if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830 (1980).

The weight of the evidence and the credibility of witnesses are, in a non-jury trial, for the judge’s determination and will not be disturbed on appeal unless clearly erroneous. Rettman v. State, 15 Md.App. 666 , 292 A.2d 107 (1972). It is necessary, therefore, that the essential elements of assault be determined. As we noted supra, an assault “is committed when there is either an attempt to commit a battery or when, by an unlawful act, a person is placed in reasonable apprehension of receiving an immediate battery.” Taylor v. State, supra, 52 Md.App. at 504, 450 A.2d 1312 (emphasis added).

These two types of assaults — attempted battery and putting another in fear — are indeed two distinct crimes that have been inadvertently overlapped and confused. One commentator explained this confusion: In the early law the word “assault” represented an entirely different concept in criminal law than it did in the law of torts. As an offense it was an attempt to commit a battery; as a basis for a civil action for damages it was an intentional act wrongfully placing another in apprehension of receiving an immediate battery. The distinction has frequently passed unnoticed because a misdeed involving either usually involves both.

If, with the intention of hitting X, D wrongfully threw a stone that X barely managed to dodge, then D would have been guilty of a criminal assault because he had attempted to commit a battery, and he would also have been liable in a civil action of trespass for assault because he had wrongfully placed X in apprehension of physical harm. Some commentators have been so imbued with the tort theory of assault that they have had difficulty in realizing ¹³⁴ that in the early law a criminal assault was an attempt to commit a battery and that only. Perkins and Boyce, Criminal Law 159 (footnote omitted). This confusion is apparent in the State’s brief.

There, appellee, quoting from Taylor v. State, 52 Md.App. at 505 , 450 A.2d 1312 , noted that “[i]t is not necessary to constitute an assault that any actual violence be done to the person. If the party threatening the assault has the ability, means, and apparent intention to carry his threat into execution, it may in law constitute an assault.” (Emphasis removed.) Appellee then goes on to cite dictum from this court’s decision in Woods v. State, 14 Md.App. 627 , 288 A.2d 215 (1972). There, we stated in a footnote: Whether apprehension of impending harm on the part of the potential victim is a necessary ingredient of assault in tort law, we need not and do not decide. And while such apprehension may be present in most criminal assaults, it is not always present, and therefore it cannot be a required element.

Id. at 630, n. 3 , 288 A.2d 215 . The problem here is that the language in Taylor derived from an examination of tort theories of assault, while the language in Woods is based on the criminal attempted battery theory. B. Attempted Battery The language in Woods supports the proposition that in an attempted battery-type assault, the victim need not be aware of the perpetrator’s intent or threat. If a person be struck from behind, or by stealth or surprise, or while asleep, he is certainly the victim of a battery.

But if we accept the oft-repeated statement that every battery included or is preceded by an assault, and if there could be no assault without premonitory apprehension in the victim, then it could be argued that there was no battery. That is not the law. See Am.Jur.2d, Assault and Battery, § 4, State v. Adamo, 9 N.J.Super. 7 , 74 A.2d 341 , State v. Godfrey, 17 Or. 300 , 20 P. 625 , Nelson v. State, (Fla.App.) 157 So.2d 96 . ¹³⁵ Woods, 14 Md.App. at 630, n. 3, 288 A.2d 215 . In other words, because there may be committed a battery without the victim first being aware of the attack, an attempted battery-type assault cannot include a requirement that the victim be aware.

See also R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure §§ 4.2, 4.5 (1983); Wharton’s Criminal Law §§ 179-80 (14th ed. 1979). 1. Specific Intent The facts in the case sub judice do not support a finding that appellant committed an attempted battery towards the infant, Christopher. An attempt to commit any crime requires a specific intent to commit that crime. Perkins and Boyce, Criminal Law 637; W. LaFave & A. Scott, Criminal Law § 59 (1972).

An attempted battery-type assault thus requires that the accused harbor a specific intent to cause physical injury to the victim, Id. at § 82, and take a substantial step towards causing that injury. See Young v. State, 303 Md. 298 , 493 A.2d 352 (1985). Nowhere does the record indicate that appellant threw the hammer with the specific intent to injure Christopher. The court expressly stated that it found specific intent on behalf of appellant because he “[tjhrew that hammer within a very short distance” of the child.

The court here is merely inferring a criminal intent from reckless or negligent acts of the appellant. This is not sufficient, see LaFave & Scott, supra, at 610, especially where all of the evidence tends to the contrary: that appellant’s intent was to injure Calvin. 2. Transferred Intent An additional question raised by the parties in the briefs is whether the necessary specific