Massachusetts Court Explains the Difference Between “Attempted” and “Threatened” Battery

In a recent Massachusetts criminal law appellate opinion, a state court discussed the difference between the two types of battery, attempted and threatened, and whether the latter requires a finding that the victims were aware of the defendant’s conduct. Ultimately, the court concluded that a threatened battery does require that the victim be aware of the defendant’s conduct, and reversed two of the defendant’s four convictions on that theory.

The Facts of the Case

The defendant was charged with four counts of assault for allegedly using his vehicle to intentionally crash into another vehicle containing his ex-girlfriend, her new boyfriend, and two other passengers.

The two rear-seat passengers testified that they got in the car, everything seemed fine, and then the next thing they knew they had been hit by another vehicle. They both believed they had been struck by a drunk driver. The two front seat passengers saw the defendant’s car approaching, although only one of them was able to make out the defendant as the driver.

The jury returned a general verdict of guilty on all four counts, not specifying whether the defendant was being found guilty of attempted or threatened battery. The defendant filed post-trial motions, which were denied. Then, the defendant appealed.

The Appellate Decision

On appeal, the defendant’s argument was that while there was sufficient evidence to find him guilty of attempted battery, there was not sufficient evidence to find him guilty of threatened battery because two of the passengers did not perceive his car approaching. Essentially, the defendant was arguing that in order to be found guilty of a threatened battery, the victim must perceive the threatening conduct of the defendant.

The court agreed with the defendant, and elaborated on the two types of assault in Massachusetts. Attempted battery, the court explained, would be equivalent to swinging a bat at someone and missing. In these cases, the court explained, the crime is linked to the defendant’s intent to cause harm. The other type of battery, threatened battery, is based on the defendant’s objectively menacing conduct that causes apprehension or fear of immediate bodily injury. Threatened battery would be equivalent to waving a bat toward someone in a threatening way.

The court engaged in a detailed conversation about the origins of battery, initially as a tort, and how it has evolved in the criminal law context. The court noted that the Model Penal Code has adopted the requirement that a victim must be aware of the threatening conduct before a defendant can be found guilty. Thus, the court also adopted that approach.

As a result, the defendant was entitled to a “not guilty” verdict based on the rear passengers because the jury returned a general verdict not specifying which type of battery the defendant had committed and there was insufficient evidence to find him guilty of threatened battery.

Have You Been Charged with a Crime?

If you have recently been charged with a crime in or around the Boston area, contact dedicated Boston criminal defense attorney Patrick J. Murphy. Attorney Murphy is a skilled Massachusetts criminal defense attorney with decades of experience representing those who have been charged with serious offenses and helping them defend their freedom against the charges they face. To learn more about how Attorney Murphy can help you with your case, call 617-367-0450 to schedule your free consultation today.

More Blog Posts:

Massachusetts Court Reverses Indecent Assault Conviction Based on Insufficient Evidence, Boston Criminal Defense Lawyer Blog, published June 14, 2018

Massachusetts Court Upholds Officer’s Frisk Although It Was Not Justified at Its Inception, Boston Criminal Defense Lawyer Blog, published July 6, 2018


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