Lamb v. State

MOYLAN, Judge. The appellant, Todd William Lamb, was convicted by a Somerset County jury, presided over by Judge Daniel M. Long, of 1) breaking and entering, 2) assault, 3) battery, 4) false imprisonment, and 5) reckless endangerment. He received a sentence of two years for breaking and entering and that judgment is of no further concern to us. The conviction for reckless endangerment was merged into that for assault and is also of no further concern to us.

The appellant received a consecutive sentence of ten years for assault, a consecutive sentence of six years for battery, and a consecutive sentence of six years for false imprisonment for a total of twenty-four years. He now argues: 1. That his conviction for assault should, as a lesser included offense, have merged into his conviction for battery; and ⁴²⁷ 2. That his conviction for battery, in turn, should also, as a lesser included offense, have merged into his conviction for false imprisonment.

With the three convictions thus merged in the fashion the appellant would have them merged, his total sentence of twenty-four years would be reduced to a sentence of but eight years. Although the appellant made no timely objection to the nonmerger of convictions at the time of sentencing, it is clear that the issue of nonmerger is reviewable by an appellate court even absent preservation of the issue by the appellant. Campbell v. State, 65 Md.App. 498, 510-511 , 501 A.2d 111 (1985). The Relationships Among Assaults and Batteries We turn our attention initially to the arguable merger of assault into battery.

It requires us to look at the crime (or crimes) of assault and the crime (or crimes) of battery generally and then to look at the particular assault in this case and the particular battery in this case specifically. Our general investigation will be doomed at the outset if we conceive of it as an exploration of the relationship between assault and battery. We must conceptualize it, rather, as an exploration of the multiple relationships among various assaults and various batteries. The key to avoiding the almost hopeless confusion clogging much of the case law is to think plural.

Ironically, it is sometimes these seemingly simplest of crimes that are the most difficult to master. The intricate overlapping of multi-layered continuing criminal enterprises and the nice distinctions between “spoke and wheel” conspiracies and “chain” conspiracies, for example, are as child’s play to the familiar standby of assault and battery. This is not as remarkable as it at first may seem. The elements of latter-day statutory crimes, no matter how intricate, have been hammered out on the legislative anvil with meticulous precision.

The common law standbys, by contrast, have grown by gradual and random accretion. As with a coral reef, there is no perceptible change from year ⁴²⁸ to year. Over centuries, however, there develop forms and shapes that bear but slight resemblance to the aboriginal prototype. Once reliable descriptions lose currency.

Thus has it been with , assault and battery. The Various Forms of Assault Today, the term of art “assault” may connote any of three distinct ideas: 1. A consummated battery or the combination of a consummated battery and its antecedent assault; 2. An attempted battery; and 3.

A placing of a victim in reasonable apprehension of an imminent battery. A. A Battery Itself or a Combined “Assault and Battery”: By way of informal (or sometimes even formal) shorthand, both the case law and the statutory law frequently use the simple noun “assault” to connote a consummated battery alone and at other times to connote the combination of the inchoate attempt to beat or to batter followed immediately by the consummation of that attempt. Thus used, “assault” is a synonym for “battery” and is also a synonym for the combined form “assault and battery.” It was of this we spoke in Anderson v. State, 61 Md.App. 436, 440 , 487 A.2d 294, 295-296 (1985): “One of the varieties of criminal conduct embraced by the word ‘assault’ or phrase ‘assault and battery’ 1 is a consummated battery. The cognate noun “assailant,” moreover, designating the assaulting criminal agent, embraces with equal certainty 1) one who attempts to beat, 2) one who only threatens to beat, 3) one who actually beats, and 4) one who both ⁴²⁹ attempts to beat and then beats.

Conversely, we do not describe the criminal agent of a battery as a “batterer” or “beater” (except in such exotic forms as “wife-beater” or “child-beater”). The single term “assailant” does nicely for all of the assaultive modalities. Legislatively, we have elevated to the felony level a series of aggravated assaults and/or batteries. Md.Ann.Code art. 27, § 12. 1 We call them, however, aggravated assaults, clearly using the word “assault” in its more embracing sense.

Section 12 punishes at the felony level the crimes of “an assault with intent to rob,” “an assault with intent to murder,” and “an assault with intent to commit a rape in any degree or a sexual offense in the first or second degree.” 2 What Maryland has done legislatively is a common, if not universal, phenomenon among American states, just as is the subsumed use of the noun “assault” to connote a battery a common, if not universal, usage. W. LaFave and A. Scott, Criminal Law (2d ed.), § 7.15(d) at 688, explains: “(d) Aggravated Battery. All jurisdictions have statutes, variously worded, which define aggravated batteries and punish them as felonies. Traditionally, the most ⁴³⁰ common statute of this type was one covering ‘assault 33 with intent to murder’ (or to kill, or to do great bodily injury, or to rape, rob, or commit mayhem).

Assaults with intent to rob, to be sure, will frequently involve “mere assaults” and not actual batteries, for the mere threatening of the battery is frequently the instrumentality of the intended robbery. Rose v. State, 37 Md. App. 388, 389-390 , 377 A.2d 588 (1977). On the other hand, many intended robbery victims are actually wounded in the process or at least “yoked” to the ground by “assaults with intent to rob” consisting of actual batteries. Bryant v. State, 4 Md.App. 572, 575-579 , 244 A.2d 446 (1968).

Assaults with intent to murder may easily involve “mere assaults” (as where the bullet misses), Woodard and Demby v. State, 13 Md.App. 114, 123 , 282 A.2d 9 (1971); cf. Hall v. State, 69 Md.App. 37, 46-47 , 516 A.2d 204 (1986), or just as easily actual batteries (wherein the victim survives the attack). Bremer v. State, 18 Md.App. 291 , 307 A.2d 503 (1973). In either event, they constitute assaults with intent to murder. Assaults with intent to rape (or to commit a sexual offense) will almost always consist of actual batteries, in the form of either violent force or offensive touching or both.

Duffin v. State, 229 Md. 434 , 184 A.2d 624 (1962). It is clear that the word “assault” in § 12 of art. 27 embraces not only attempted batteries but also actual batteries, as well as the combination of the two. By way of interesting linguistic contrast, Md.Ann.Code art. 27, § 386 designates for punishment at the felony level anyone who “shall assault or beat any person, with intent to maim, disfigure or disable ...” (emphasis supplied). Two specific verbs are used instead of a single generic verb.

It is clear, however, that the physical behavior explicitly embraced by § 386 is implicitly embraced by § 12, with the difference between the two statutory sets of aggravated attacks to be found only in their respective mentes reae. ⁴³¹ Other instances abound of the legislative use of the word “assault” in its more comprehensive sense to embrace, inter alia, the notion of a battery. Former §§ 11B and 11C, repealed by ch. 655 of the Acts of 1969, provided special penalties for the crime of “Assault on Police.” The primary legislative intent was clearly to cope with the problem of batteries upon police officers, although mere inchoate or attempted batteries were incidentally included as well. Indeed, former § llB(a) expressly recognized both beating and striking as forms of assault, as it made it unlawful “for any person to beat, strike or otherwise to assault a policeman ...” (emphasis supplied). Section 11E, mandating consecutive sentencing and prohibiting the suspension of a sentence in the case of an inmate being convicted of an “assault on another inmate or on an employee of the Division of Correction,” (emphasis supplied) clearly embraces a battery upon an inmate as surely as it does an attempted battery.

The subtitle as well as the statutory text uses the all-embracing term: “Assault by Inmates.” A nationwide reform movement in the late 1950’s occurred in response to a growing recognition of the so-called “Battered Child Syndrome.” Maryland’s response to the problem was ch. 743 of the Laws of 1963, initially codified as art. 27, § 11 A, 3 which created an aggravated assault at the felony level entitled “Assault on Child.” Anderson v. State, 61 Md.App. 436, 442 , 487 A.2d 294 (1985). Notwithstanding the use of the noun “assault,” Maryland clearly was responding to the problem of battered children by prescribing heavy penalties for the battery of children. The critical prohibition was upon “causpng] abuse to the child,” with “abuse” being defined as the “sustaining of physical injury by a child.” The statutory offense of “Assault on ⁴³² Child” punished more severely, by its very terms, the battery of a child. Maryland’s response to the growing national recognition of a problem more recently identified by the phrase “Battered Spouse Syndrome” was the passage of ch. 307 of the Laws of 1979, codified as § 11F and dealing with the problem of “Spousal assault.” It would be disingenuous to suggest that the statute does not deal with the subject of spousal battery.

Chapter 263 of the Acts of 1965 is what Judge Orth in Pope v. State, 284 Md. 309, 325 , 396 A.2d 1054 (1979), referred to as one of “two ‘Good Samaritan’ statutes which afford protection to one who assists another in certain circumstances.” It created § 12A, subtitled “Assault— Third Person Aiding One Being Assaulted.” It clearly contemplates, inter alia, a battery in progress as it provides that any “person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person’s defense.” (emphasis supplied). See Alexander v. State, 52 Md.App. 171 , 447 A.2d 880 , aff'd, 294 Md. 600 , 451 A.2d 664 (1982). Although mildly deprecating such more comprehensive usage, W. LaFave and A. Scott, Criminal Law (2d ed. 1986), § 7.14(a) at 684, nonetheless recognizes the broader usage: “[T]he word ‘assault’ is sometimes used loosely to include a battery, and the whole expression ‘assault and battery’ to mean battery, ...” The Model Penal Code (1985) points out, at 125, in its Explanatory Note for § 211 dealing with “Assault,” that § 211.1 “effects a consolidation of the common law crimes of mayhem, battery, and assault.” In defining “Simple Assault,” § 211.1 provides: “A person is guilty of assault if he: (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or ⁴³³ (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury.” (emphasis supplied). And see R. Perkins, Criminal Law (3d ed. 1982), ch. 2, § 2 “Assault and Battery,” at 172 (“Some of the new penal codes include the whole field of assault and battery under the name of ‘assault’ ”).

See also Hall, “Assault and Battery by the Reckless Motorist,” 31 Jrnl.Amer.Inst. of Crim.L. 133, 136-137 (1941): “If there has been actual physical injury or an offensive touching, courts often use the terms ‘assault’ and ‘battery’ interchangeably to apply to the crime.” See, however, Woods v. State, 14 Md.App. 627, 632 , 288 A.2d 215 (1972). Although a more meticulous maintaining of a distinction between an assault and a battery is probably to be preferred, the word does bear, inter alia, this all-inclusive meaning and there will be no fatal variance between an allegation of assault and a proof of battery. As was stated by Perkins, “Non-Homicide Offenses Against The Person,” 26 Boston Univ.L.Rev. 119, 132 (1946): “[I]f the attempt to commit a battery is successful the actual conviction may be either (1) battery, (2) assault and battery, or merely (3) assault.” When the word “assault” is used in this comprehensive way exclusively to connote or inclusively to embrace a battery, one cannot, of course, speak of a relationship between assault and battery. The present problem before us, however, deals with a relationship.

This broad meaning of the word “assault,” therefore, will be used no further in this opinion and all subsequent discussion will deal only with those narrower and more precise connotations of “assault” that are distinct from any suggestion of a consummated battery. B. An Attempted Battery: One of the two more precise meanings of the term “assault” is that of an attempted battery. This was the ⁴³⁴ only meaning of “assault” at the early criminal law. R. Perkins, Criminal Law (3d ed. 1982) at 159, points out the limited contours of the crime in its earliest manifestation: “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____ Some commentators have been so imbued with the tort theory of assault that they have had difficulty in realizing that in the early law a criminal assault was an attempt to commit a battery and that only.” (emphasis supplied). Although the concept of criminal assault has now taken on an additional (and quite distinct) meaning, it still embraces all that conduct that would fit within the definition of an attempted battery. Even though it enjoys a special name or label of its own, it still shares the characteristics of all other attempts. As an attempt, it is, of course, a specific intent crime.

The specific object or purpose intended is the commission of a battery, the inflicting of physical injury upon the victim or some other offensive touching of the victim. As with all attempts, the assault of the attempted-battery variety is established regardless of whether the effort succeeds or fails to achieve its purpose. As W. LaFave and A. Scott, Criminal Law (2d ed. 1986), at 692, points out: “(a) Assault as Attempted Battery. An attempt to commit any crime requires a specific intent to commit that crime; and so assault of the attempted-battery sort requires an intent to commit a battery, i.e., an intent to cause physical injury to the victim.

Thus in those jurisdictions where an assault is limited to an attempted battery, an intent merely to frighten, though accompanied by some fear-producing act like pointing an unloaded gun at the victim, will not suffice. And since an intent to injure is required for an attempted battery, recklessness or negligence which comes close to causing injury — as ⁴³⁵ where A, driving his car recklessly, just misses striking B — will not do for an assault.” (footnotes omitted). Some of the Maryland case law has defined the crime of assault exclusively as an attempted battery, apparently oblivious to any other possible meaning of the term or, at least, guilty of an under-inclusive and unduly narrow statement of the offense. In Weddle v. State, 4 Md.App. 85, 90 , 241 A.2d 414 (1968), we employed the partial definition: “The crime of assault is an attempt by force to injure the person of another.” In Ott v. State, 11 Md.App. 259, 265 , 273 A.2d 630 (1971), we pointed out that “[ajssault has been defined as any attempt to apply the least force to the person of another.” In Yantz v. Warden, 210 Md. 343, 351 , 123 A.2d 601 (1956), the Court of Appeals used the limited definition, without any suggestion of any additional content to the term: “The crime of assault is an attempt by force to injure the person of another.” An attempt to apply force indirectly (as by burning a house) may also constitute an assault.

Taylor v. State, 52 Md.App. 500 , 450 A.2d 1312 (1982). That original, criminal-law meaning of “assault” as an attempted battery has, to be sure, retained its full vitality. What it has lost is its exclusivity. For those who have not kept pace with the loss of exclusivity, the resultant narrow conceptualization of assault simply as an attempted battery, and nothing more, has given rise to such slippery and treacherous half-truths (to be more fully discussed hereinafter) as: 1) Assault is an inchoate crime; 2) Assault requires a specific intent to commit a battery; 3) Every battery includes an assault; 4) There can be no such crime as an attempted assault.

None of these familiar and oft-quoted “principles” is totally true. None of them, however, is totally false. They are all half-truths; and therein lurks their insidious capacity to lead the unwary astray. ⁴³⁶ C. A Threatening of an Imminent Battery: The more recent accretion to the coral reef of criminal assault is the replication in that new environment of the familiar tort of assault. W. LaFave and A. Scott Criminal Law (2d ed. 1986), noted this engrafting process, at 693, under the subhead of “Assault as Intentional Scaring”: “[M]any jurisdictions have extended the scope of the crime of assault to include, in addition to (not as an alternative to) the attempted-battery type of assault, the tort concept of the civil assault, which is committed when one, with intent to cause a reasonable apprehension of immediate bodily harm (though not to inflict such harm), does some act which causes such apprehension.” (footnote omitted) (emphasis in original).

Under the subheads of “2. The Changing Concept,” and “A. Criminal Assault Based Upon a Tort Theory,” R. Perkins, Criminal Law (3d ed. 1982), explained, at 161-162: “While few jurisdictions have abandoned the original basis for establishing a criminal assault in the absence of statute, there has been a tendency in many to add the tort theory as an additional ground. Where the tort theory has been added, a simple criminal assault ‘is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery. ’ This position, it may be added, has now been taken by a majority of the jurisdictions.” (footnotes omitted) (emphasis supplied). Professor Perkins went on to note, at 162, that this metamorphosis of an old tort into a new aspect of an old crime was a purely semantic accident: “[T]he change did not come about as a result of a conscious effort to enlarge the scope of a criminal offense, but as a consequence of the confusion caused by the use of the same word to represent two different concepts.” (footnote omitted). ⁴³⁷ The merger of the two concepts of assault has been in process for at least two hundred years.

It has been a process, moreover, more inadvertent than advertent. One commentator has observed in “Is A Criminal Assault A Separate Substantive Crime Or Is It An Attempted Battery?,” 33 Ky.L.J. 189 (1944-1945): “An examination of the criminal assault cases which have been decided during the last two hundred years discloses the fact that the courts have used two fundamentally different theories in defining the offense. Different results have been reached in describing and punishing the same offense, depending largely upon whether the courts have looked upon the offense as a separate substantive crime or whether they have looked upon it as an attempted battery. There is little indication that the courts have carefully thought it out one way or the other” (footnotes omitted) (emphasis supplied).

This latter-day addition to the crime of assault not only came out of the tort of assault but it mirrors the tort precisely in terms of its character and its necessary elements. W. Prosser and P. Keeton, The Law of Torts (5th ed. 1984), at 43, describes the tort (and, thereby, one form of the crime): “The interest in freedom from apprehension of a harmful or offensive contact with the person, as distinguished from the contact itself, is protected by an action for the tort known as assault. No actual contact is necessary to it, and the plaintiff is protected against a purely mental disturbance of this distinctive kind. This action, which developed very early as a form of trespass, is the first recognition of a mental, as distinct from a physical, injury.

There is ‘a touching of the mind, if not of the body.’ ” (footnotes omitted). For this variety of assault, it is not necessary that the victim be actually frightened or placed in fear of an imminent battery at the hands of one with the apparent present ability to commit such a battery. The critical state of mind on the part of the victim is to be placed “in reasonable ⁴³⁸ apprehension” of an impending battery. This distinction preserves the rights of the intrepid crime victim or intrepid plaintiff.

As W. LaFave and A. Scott, Criminal Law (2d ed. 1986) explained, at 693 n. 18: “The word ‘scare’ or ‘frighten’ is sometimes used loosely herein as a short term for the more cumbersome but more accurate expression ‘causing reasonable apprehension of immediate bodily harm.’ See W. Prosser & W. Keeton, Torts § 10 (5th ed. 1984), speaking of the requirement of apprehension of immediate bodily harm required for a civil assault: ‘Apprehension is not the same thing as fear, and the plaintiff is not deprived of his action merely because he is too courageous to be frightened or intimidated.’ ” See also Dixon v. State, 302 Md. 447, 461-462 , 488 A.2d 962 (1985); and Hayes v. State, 211 Md. 111, 116 , 126 A.2d 576 (1956) (“Nor need it be shown that the person assailed was actually put in fear, if the means employed are calculated to instill fear in the heart or mind of a reasonable man”). And see Second Restatement of Torts, § 24, Comment b. Maryland, early on, included this tort concept of assault as part of its common law crime of assault. Handy v. Johnson, 5 Md. 450, 465 (1854) held: “Where an assault is charged the authorities show that the jury are to decide whether there was any intention to do any violence or injury; but the authorities also establish, that if in a threatening and rude or angry manner a man points a sword, or fork, at another, or shakes his fist in the face of the other, within striking distance, attended with a present ability to strike, although no stroke is given, such act is an assault, notwithstanding the failure to strike.” (emphasis supplied).

Notwithstanding Handy v. Johnson, the subsequent case of Yantz v. Warden, 210 Md. 343, 351 , 123 A.2d 601 (1956), lapsed into an earlier narrowness of vision with its under-inclusive but ostensibly definitive statement that the “crime of assault is an attempt by force to injure the person of another.” In Kellum v. State, 223 Md. 80, 84-85 , 162 A.2d ⁴³⁹ 473 (1960), Chief Judge Bruñe gently took Yantz v. Warden off the hook for its apparently unwitting incompleteness: “The statement in Yantz v. Warden, 210 Md. 343, 351 , 123 A.2d 601 , that ‘[t]he crime of assault is an attempt by force to injure the person of another’ is not inconsistent with the general statement made in Clark & Marshall just quoted. It was a sufficient definition for the purposes of that case, though not perhaps a full and comprehensive definition of the term, which has substantially (if not exactly) the same meaning in our law of torts as in our criminal law. We are not aware of any possible difference which might affect the result here. See also IV Blackstone, Commentaries (Oxford, 1769), pp. 216-217, as to the likeness of assault and battery as private and public wrongs.” (citations omitted) (emphasis supplied).

See also Veney v. State, 251 Md. 159, 176 , 246 A.2d 608 (1968). Judge Brune’s efforts, however, could not prevent subsequent backsliding, clearly attributable to the stubborn reluctance, if not incapacity, of the case law to conceptualize in the plural. The inclusion, under the umbrella term “assault,” of the original crime of attempted battery and the tort of intentional threatening frequently produced not a recognition of two separate forms of prohibited behavior, as it should have, but rather a piling of additional elements onto a single definition that soon grew into an unmanageable monstrosity. Williams v. State, 4 Md.App. 643, 647 , 244 A.2d 619 (1968), defined assault as an attempted battery and then bizarrely treated the alternative form of assault simply as an instance of attempted battery: “The crime of common law assault is ‘an attempt by force to injure the person of another ...

The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another, that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such inten ⁴⁴⁰ tion---- It is not necessary that there should be a specific purpose to do a particular injury.’ ” Ott v. State, 11 Md.App. 259, 265 , 273 A.2d 630 (1971), reiterated this solemnly impressive but misleading and poorly articulated notion: “Assault has been defined as any attempt to apply the least force to the person of another. The attempt is made when there is any action or conduct reasonably tending to create apprehension in another and that the person engaged therein is about to apply such force to him.” See also Lyles v. State, 10 Md.App. 265, 267 , 269 A.2d 178 (1970). And see R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure (1983), at 47-49.

Once an authoritative opinion utters an unintelligible definition, of course, others, like lemmings marching toward the sea, repeat it slavishly. The slap-dash and garbled rendition becomes, with familiarity, a revered ceremonial chant. The ultimate cacophony was Woods v. State, 14 Md.App. 627, 629-633 , 288 A.2d 215 (1972), an eclectic collection of partial statements and single-sentence cliches culled exhaustively from the Maryland case law and from legal digests and encyclopedias. Mutually contradictory and divergent statements were all taken alike as equal gospel and there was no effort to reconcile them or to integrate them into a coherent body of legal doctrine.

In fairness, the earlier definitional failures of this Court largely trace back to unquestioning but questionable reliance upon the erstwhile Olympian authority of L. Hochheimer, Crimes and Criminal Procedure 287-288 § 254 “Assault” (2d ed. 1904). In Dixon v. State, 302 Md. 447 , 488 A.2d 962 (1985), the Court of Appeals clearly recognized the plural nature of the crime of assault. Judge Menchine observed, “Assault is a common law offense that has been the subject of many definitions.” Dixon, 302 Md. at 456 , 488 A.2d 962 . He quoted with approval R. Perkins, Perkins on Criminal Law 114 (2d ed. 1969), which defined assault in the plural: ⁴⁴¹ “[A]ssault is (1) an attempt to commit a battery or (2) an intentional placing of another in apprehension of receiving an immediate battery.” (emphasis supplied).

The most articulate exposition we have had on common law assault and its rich variety was that provided by Judge Alpert in Harrod v. State, 65 Md.App. 128 , 499 A.2d 959 (1985). At the outset of the opinion, he pointed out that assault is not one crime but two: “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. The facts in the instant case present this court with an excellent opportunity to explain the distinctions between these two different types of assault.” (citations omitted). Harrod, 65 Md.App. at 131 , 499 A.2d 959 .

He observed again: “[A]n 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.’ These two types of assaults— attempted battery and putting another in fear — are indeed two distinct crimes that have been inadvertently overlapped and confused." (citation omitted) (emphasis supplied). Harrod, 65 Md.App. at 133 , 499 A.2d 959 . See also Hall v. State, 69 Md.App. 37, 44-45 , 516 A.2d 204 (1986); Snowden v. State, 321 Md. 612, 617 , 583 A.2d 1056 (1991). Common law assault, then, is a chameleon concept that no one should attempt to describe too precisely.

It takes on different colorations in different factual settings. The Maryland State Bar Association’s Maryland Criminal Pattern Jury Instructions has handled the plural nature of common law assault by providing not one recommended instruction, but three. MPJI-CR 4:01.1 defines for the jury the necessary elements of assault of the “intent to frighten” variety. MPJI-CR 4:01.2 provides a different instruc ⁴⁴² tion, listing different elements, for assault of the “attempted battery” variety.

MPJI-CR 4:01 provides an omnibus instruction for the situation where the evidence of assault supports either variety of the crime. It begins by informing the jury of the plural nature of the crime: “The defendant is charged with the crime of assault. There are two types of assault. The first type is committed by intentionally making another person fear immediate [offensive physical contact] [physical harm].

The second type is committed by actually attempting to cause [offensive physical contact] [physical harm].” It then takes up each of the two varieties in turn, providing a separate list of required elements for each. It does not attempt to lump the two together under any sort of composite definition. D. A Comparison of Attempted Battery and Intentional Frightening: Leaving aside for the moment any connotation of “assault” as either 1) a consummated battery or 2) a combination of assault and battery, the remaining two connotations alone illustrate how dangerous it is to make any generalized statement about the “crime of assault.” A perfectly correct, albeit incomplete, statement will frequently be made about one species of assault. The unwary auditor or reader, however, will unwittingly assume that the given description of one species of assault applies with equal validity to the entire genus “assault.” That description may then, in turn, be erroneously misapplied to a different species of assault as to which is totally inappropriate.

Assault of the attempted battery variety, for instance, is an inchoate crime. It shares with all other attempts the general characteristics of that variety of inchoate crime. Assault of the intentional threatening variety, on the other hand, is not in any sense inchoate. It is a fully consummated crime once the victim is placed in reasonable apprehension of an imminent battery. ⁴⁴³ It is generally agreed that an assault of either variety requires only an apparent present ability rather than an actual present ability to consummate the battery.

See Hayes v. State, 211 Md. 111, 115 , 126 A.2d 576 (1956). The apparency, however, is assessed from opposite perspectives. For an assault of the attempted battery variety, there must be an apparent present ability from the viewpoint of the would-be assailant. Unless he thinks he can execute the battery, he will lack the required specific intent to do so.

For an assault of the intentional frightening variety, on the other hand, the assailant may be guilty even though he knows full well that he lacks any ability to follow through on his threat. That he knows the gun he points is unloaded or defective or is no gun at all is of no consequence. Dixon v. State, 302 Md. 447, 463-464 , 488 A.2d 962 (1985). From his perspective, there is no apparent present ability but that will avail him naught.

Hayes v. State, 211 Md. 111, 115 , 126 A.2d 576 (1956). All that is required in terms of perception is an apparent present ability from the viewpoint of the threatened victim. Hall v. State, 69 Md. App. 37, 45 , 516 A.2d 204 (1986). If, on the other hand, the would-be victim of the threat is unaware of the threatening conduct, there can be no assault of this variety.

Harrod v. State, 65 Md.App. 128, 138 , 499 A.2d 959 (1985). If the would-be victim perceives the threatening conduct but knows, for instance, that the gun is defective, there is no apprehension of an imminent battery and, therefore, no assault of the threatening variety. In terms of whose perception matters, that aspect of assault which came originally from the criminal law, concerned as it is with blameworthiness, is primarily defendant-oriented. That aspect of criminal assault which appeared initially in tort law, concerned as it is with harm, is primarily victim-oriented.

Both varieties of assault are specific intent crimes. The specific intents, however, are not identical. An assault ⁴⁴⁴ of the attempted battery variety requires a specific intent to perpetrate a battery. 4 Harrod v. State, 65 Md.App. 128 , ⁴⁴⁵ 135, 499 A.2d 959 (1985). No design or purpose to threaten or to frighten the victim is in any way necessarily implicated, although it certainly is not precluded.

An attempted battery can be perpetrated on a victim who is asleep, is facing in another direction or is otherwise oblivious of any danger. A truly deadly assailant may, indeed, prefer not to tip his hand with any antecedent threat. An assault of the intentional frightening variety, on the other hand, requires a specific intent to place the victim in reasonable apprehension of an imminent battery. That the assailant definitely does not intend to carry through on the threat is of no consequence.

If, however, the threatening assailant does intend to carry through on the threat and attempts to do so, then both varieties of assault have converged in a single criminal attack. The two forms of assault need not necessarily be in the alternative. They may combine and they frequently do. In terms of specific intent, the attempted battery variety of assault requires that the assailant intend to punch, whether he intends to signal the punch or not.

The threatening variety of assault, on the other hand, requires that the assailant intend to signal the punch, whether he intends to punch or not. The Various Forms of Battery Today, the term of art “battery” may connote either of two forms of offensive touching or other application of force: 1. An intended battery; or ⁴⁴⁶ 2. An unintended battery.

A. An Intended Battery: The definition of the physical component of the common law misdemeanor of battery is hornbook law. It is any unlawful application of force, direct or indirect, to the body of the victim. W. LaFave and A. Scott, Criminal Law 685 (2d ed. 1986), defines it in the following terms: “[B]attery is a crime which is defined, like murder and manslaughter, in terms not only of conduct but also of a specified result of conduct. The required result for battery might be termed ‘bodily injury' so as to include such obvious matters as wounds caused by bullets or knives, and broken limbs or bruises inflicted by sticks, stones, feet or fists.

A temporarily painful blow will suffice, though afterward there is no wound or bruise or even pain to show for it. But, in addition to these more obvious bodily injuries, offensive touchings (as where a man puts his hands upon a girl’s body or kisses a woman against her will, or where one person spits into another’s face) will also suffice for battery under the traditional view.” (footnotes omitted). R. Perkins, Criminal Law 152-153 (3d ed. 1982), provides the following description of the force component: “It is sometimes spoken of as ‘the unlawful beating of another,’ or the ‘use of physical violence by one person toward another.’ Such expressions tend to be misleading. As a matter of law the slightest touching of another is a battery if it is unlawful.

As it has been said, ‘violence’ and ‘force’ are synonyms when used in this connection and include any application of force even though it entails no pain or bodily harm and leaves no mark. As explained by one court a battery is ‘the actual infliction of corporal hurt on another (e.g., the least touching of another’s person) willfully or in anger.’ The ‘corporal hurt’ in this case was the putting of a hand lightly on the shoulder. It was the touching of a woman by a man under circumstances causing great resentment as he had every reason ⁴⁴⁷ to expect. Wilfully spitting on another is a battery.” (footnotes omitted).

The Court of Appeals defined battery in Snowden v. State, 321 Md. 612, 617 , 583 A.2d 1056 (1991), simply as: “Battery, another common law offense, is the unlawful application of force to the person of another.” The Court of Appeals in State v. Duckett, 306 Md. 503, 510 , 510 A.2d 253 (1986), observed, “Battery ... has been traditionally defined by our court as the unlawful beating of another.” See also Kellum v. State, 223 Md. 80 , 162 A.2d 473 (1960); Lamb v. State, 67 Md. 524, 534 , 10 A. 208 (1887). Simply by way of stressing that battery includes offensive touching as well as more violent force, this Court defined battery in Leatherberry v. State, 4 Md.App. 300, 305, 242 A.2d 599 (1968), quoting Clark and Marshall, Crimes § 10.19 (6th ed. 1958), as: “Any unlawful injury whatsoever, however slight, actually done to the person of another, directly or indirectly, in an angry, revengeful, rude, or insolent manner, is a battery.” See also Price v. State, 5 Md.App. 127, 130 , 245 A.2d 600 (1968). In Kellum v. State, 223 Md. 80, 85 , 162 A.2d 473 (1960), the Court had observed in this regard that “any unlawful force used against the person of another, no matter how slight, will constitute a battery.” The Court of Appeals in State v. Duckett, 306 Md. at 510-511 , 510 A.2d 253 , stressed the incredible variety of the forms that offensive touching may take: “Like indecent exposure, then, the types of offenses which fall within the ambit of the crime of battery vary widely. A person may commit battery by kissing another without consent, touching or tapping another, jostling another out of the way, throwing water upon another, rudely seizing a person’s clothes, cutting off a person’s hair, throwing food at another, or participating in an ⁴⁴⁸ unlawful fight.

On the other hand, a battery may take the form of a severe beating.” (citations omitted). The application of force may be indirect as well as direct. W. LaFave and A. Scott, Criminal Law 685-686 (2d ed. 1986), explained: “The force used need not be applied directly to the body of the victim, as in the usual case where one shoots at another or strikes him with knife, club or fist. It may also be indirectly applied to the victim, as where one whips the horse on which the victim is riding, causing the horse to bolt and throw his rider, or where one compels another to touch him in a way offensive to the other.

So too a battery may be committed by administering a poison or by infecting with a disease.” (footnotes omitted). With slightly different examples, the same thought was expressed by R. Perkins, Criminal Law 153-154 (3d ed. 1982): “Force may be applied to the person of another in many ways, as by striking another with the fist or a stick or a stone, by kicking or tripping, lassoing with a rope, cutting with a knife, or shooting. As has been said, a battery is an application of force to the person of another ‘by the aggressor himself, or by some substance which he puts in motion.’ It may be committed by administering a poison or other deleterious substance, by applying a caustic chemical, or by communicating a disease. It may be perpetrated in even more indirect forms, as by exposing a helpless person to the inclemency of the weather, or by threatening sudden violence and thereby causing another to jump from a window or a moving vehicle or other place.

A battery may be committed by directing a dog to attack a victim.” (footnotes omitted). The excellent analysis by Judge Wilner in Taylor v. State, 52 Md.App. 500 , 450 A.2d 1312 (1982), involved such an indirect application of force. An assault (with intent to murder) was perpetrated on two victims by the intentional setting afire of the dwelling-house they occupied with the intent to injure them thereby. ⁴⁴⁹ W. LaFave and A. Scott, Criminal Law 686 (2d ed. 1986), also points out that a battery may be perpetrated by an act of omission as well as by an act of commission and that transferred intent is as viable a notion in the law of battery as it is in the law of homicide: “As with other cause-and-result crimes, battery may be committed, if the other elements of the crime are present, by creating a situation under which the victim injures himself, as by telling a blind man walking toward a precipice that all is clear ahead, thus intentionally or recklessly causing him to fall and hurt himself, or even by a simple omission to act where there is a duty to act, as where a hospital attendant fails to warn his blind patient that he is headed for an open window, thereby intentionally or recklessly causing him to fall to the ground. And, as is true of all cause-and-result crimes, one may be guilty of battery though his aim at A is bad and he hits B, the wrong person.” (footnotes omitted).

The overwhelming majority of the criminal batteries that are committed are intended and this has led to the mistaken belief that all criminal batteries are intended. An intended battery is, by definition, a specific intent crime. 5 It em ⁴⁵⁰ braces its inchoate antecedent of assault, attempted-battery variety, which involves, of course, precisely the same specific intent to perpetrate the battery. The combination of the attempt and its successful consummation is classic “assault and battery.” Almost all statements made about the relationship between an assault and a battery take for granted that the battery was intended. B. An Unintended Battery: The field of criminal battery, however, is actually more complicated than many realize because of the less well-known inclusion in that field of unintended batteries.

When the physical application of force is inflicted on the body of the victim, the specific intent to harm the victim is not the only mens rea that may give rise to the crime of battery. There are two separate forms of unintended battery. The first is where the physical harm is the result of criminal negligence — not ordinary negligence but criminal negligence. W. LaFave and A. Scott, Criminal Law 687 (2d ed. 1986), discussed this form of battery: “In most jurisdictions today battery may be committed by conduct amounting to criminal negligence which legally causes an injury.

Some of the cases so holding have spoken in fictional language — generally to the effect that ⁴⁵¹ for battery one must intend to injure, but that criminal negligence supplies the intent. Now that the principle of battery based upon criminal negligence is well established, it is more accurate to stop using the fiction and recognize this as a separate type of battery from the intent-to-injure type.” (footnotes omitted). R. Perkins, Criminal Law 157-158 (3d ed. 1982), discusses the same variety of the common law misdemeanor: “For battery, as for manslaughter, more is required than ordinary negligence sufficient to support a civil action. But the rule is now well established that conviction of battery can be supported by harm to the person resulting from criminal negligence.

Thus if a person has been hurt as a result of an accident caused by defendant’s criminally negligent driving of a car, the defendant is guilty of battery.” (footnotes omitted). See also L. Hall, Assault and Battery By The Reckless Motorist, 31 J.Crim.L. & Criminology 133 (1940); Comment, Criminal Assault Through Negligence-Bonding Automobile Drivers, 22 Mich.L.Rev. 717 (1924). As Perkins, Non-Homicide Offenses Against the Person, 26 B.U.L.Rev. 119, 125-126 (1946), points out, the failure to recognize the unintended battery rose out of the failure to recognize the difference between the tort of battery and the crime of the same name: “ ‘Battery’ is the name given to a tort as well as the name given to a crime. As a tort it is a civil injury giving rise to an action for damages by the person harmed.

As a crime it is social harm punished by the state. The same misdeed may be both, — and usually is. But the two are not identical although they have much in common____ If one man harmed another, by an unlawful application of force to his person, the name of the common law action was ‘trespass for battery’ if the harm was intentionally inflicted, and ‘trespass on the case’ if it resulted from negligence. Hence, — in the law of torts — the word ‘battery’ was used only where such harm was intentional, although liability also existed where it was negligent. ⁴⁵² In criminal law there is no counterpart to the tort distinction between ‘trespass for battery’ and ‘trespass on the case’ and hence the word ‘battery’ is applied to every punishable application of force to the person of another » L. Hall, Assault and Battery by the Reckless Motorist, 31 J.Crim.L. & Criminology 133, 134 (1940), discusses the development of this form of battery, particularly in the context of criminal negligence in the operation of an automobile: “The law of battery developed during the latter half of the 19th century along common law principles, from intent to recklessness, in the same manner as the law of manslaughter (and in cases of extreme recklessness, of murder) had unfolded two centuries earlier.

The coming of the automobile, and the desire of prosecutors for heavier penalties than many reckless driving statutes permit, have done no more than provide numerous modern instances of this development.” The first official recognition in Maryland of unintended battery came with the promulgation of the Maryland Criminal Pattern Jury Instructions, No. 4:04 (1986). MPJI-CR 4:04 instructs the jury that the harmful or offensive physical contact may be the result of “an intentional or reckless act.” (emphasis supplied). The Comment to MPJI-CR 4:04 cites to the aforementioned academic authorities and observes, “There is no requirement for the defendant to intend to cause the injury. It is sufficient that the defendant acted in a reckless or grossly negligent manner.” The first judicial recognition of unintended battery came with Duckworth v. State, 323 Md. 532, 540-544 , 594 A.2d 109 (1991).

The thoroughly researched and well-reasoned opinion of Judge Rodowsky analyzed why the evidence was legally sufficient to sustain a conviction for battery in a case where the defendant was handling a firearm in a criminally negligent manner and unintentionally wounded a child thereby. Judge Rodowsky reasoned: ⁴⁵³ “[T]he act of pointing a firearm at a nearby human being, without being certain that the weapon will not discharge, generally is sufficiently reckless to support a conviction for voluntary manslaughter where the unintended discharge of the weapon results in death. Similarly, here, where the discharge of the weapon resulted in a wounding short of death, the same degree of recklessness supports the battery conviction.” Duckworth, 323 Md. at 542 , 594 A.2d 109 . Cf Mills v. State, 13 Md.App. 196 , 282 A.2d 147 (1971); Annotation, Homicide By Wanton Or Reckless Use Of Firearm Without Express Intent To Inflict Injury, 5 A.L.R. 603 , 610-619 (1920); 23 A.L.R. 1554 , 1556-1557 (1923).

Duckworth v. State, 323 Md. at 541 , 594 A.2d 109 , quoted with approval Commonwealth v. Hawkins, 157 Mass. 551, 553 , 32 N.E. 862, 863 (1893): “It is a general rule in criminal proceedings at common law that the defendant cannot be convicted unless a criminal intent is shown, but it is not necessary that he should have intended the particular wrong which resulted from his act____ So, in cases of homicide, the rule is well established, that one who wantonly, or in a reckless or grossly negligent manner, does that which results in the death of a human being, is guilty of manslaughter, although he did not contemplate such a result. His gross negligence in exposing another to a personal injury by intentionally doing the act makes his intention criminal, and supplies all the intent which the law requires to make him responsible for the consequences. This principle is equally applicable to other cases where a personal injury results from a wanton or reckless act which is likely to do bodily harm, or from any gross negligence which causes the danger. In the case at bar, if Mary A. Powers had died from the pistol shot, the defendant, on the facts found by the jury, would have been guilty of manslaughter.

As she survived the injury, the same principle now requires a conviction of assault and battery.” ⁴⁵⁴ Duckworth v. State, 323 Md. at 544 , 594 A.2d 109 , concluded by holding: “Thus, the State’s theory of the case on the battery charge was legally sound, namely, that Duckworth criminally wounded Mandy by recklessly handling a firearm.” Harm to the person of the victim caused by the defendant’s criminal negligence is not the only form of unintended battery. The other is where the harm results unintentionally from the defendant’s doing of an unlawful act which is malum in se. This variety of unintended battery is discussed by R. Perkins,