Assaults may be classified as a misdemeanor, gross misdemeanor,
or felony, depending on the circumstances of the crime and whether
Kelly works aggressively to defend persons accused of assault and/or
•An act intended to cause an apprehension of harmful or offensive
•An act that causes apprehension in the victim that harmful or
offensive contact is imminent.
Words, without an act, cannot constitute an assault. For example,
no assault has occurred where a person waves his arms at another
and shouts, "I'm going to shoot you!" where no gun is visible or
apparent. However, if the threatening words are accompanied by
some action that indicates the perpetrator has the ability to carry out
a threat, an assault has occurred. It is an assault where a person
threatens to shoot another while pointing a gun, even where the victim
later learns that the gun was not loaded. Moreover, pointing a gun
without an accompanying verbal threat is still an assault, assuming the
victim saw the gun.
Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, intent is established if a reasonable person is substantially certain that certain consequences will result;
intent is established whether or not he or she actually intends those consequences to result. In criminal law, intent means acting with a criminal or wrongful purpose. Criminal assault statutes often speak of acting "purposely," "knowingly," "recklessly," or "negligently." Acting negligently means to grossly deviate from the standards of normal conduct. Some criminal assault statutes recognize only "purposely," "knowingly," and "recklessly" as the level of intent required to establish that an offense occurred.
The victim must have a reasonable apprehension of imminent injury or offensive contact. This element is established if the act would produce apprehension in the mind of a reasonable person. Apprehension is not the same as fear. Apprehension means awareness that an injury or offensive contact is imminent. Whether an act would create apprehension in the mind of a reasonable person varies depending upon the circumstances. For example, it may take less to create apprehension in the mind of a child than an adult. Moreover, if a victim is unaware of the threat of harm, no assault has occurred. An assailant who points a gun at a sleeping person has not committed an assault. Finally, the threat must be imminent, meaning impending or about to occur. Threatening to kill someone at a later date would not constitute an assault.