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Maryland Code, Criminal Law, Section 3-203 – Assault in the Second Degree

1. Definition and Elements of the Crime

Assault in Maryland is divided into degrees. Second Degree Assault is the actual or attempted offensive touching of another person, without that person’s consent. (Maryland Code, Criminal Law, Section 3-203). Assault in the First Degree includes all the elements of Assault in the Second Degree with the added requirements that the defendant used a firearm or caused (or attempted to cause) serious physical injury (Maryland Code, Criminal Law, Section 3-202). The major distinction between the two type of assault is the defendant’s intent. 

Assault in the Second Degree can be committed in a variety of ways including an Intent to Frighten, an Attempted Battery, or a Battery. 

In order to convict a defendant of Second Degree Assault under the Intent to Frighten theory, the State must prove:

  1. That the defendant committed an act with the intent to place the victim in fear of immediate offensive physical contact/physical harm;
  2. That the defendant had the apparent ability, at that time, to bring about the offensive physical contact/physical harm; and
  3. That the victim reasonably feared immediate offensive physical contact/physical harm; [and]
  4. That the defendant’s actions were not legally justified.

In order to convict a defendant of Second Degree Assault under the Attempted Battery theory, the State must prove:

  1. That the defendant actually tried to cause immediate offensive physical contact with or physical harm to the victim;
  2. That the defendant intended to bring about offensive physical contact or physical harm; and
  3. That the defendant’s actions were not consented to by the victim or not legally justified.

In order to convict a defendant of Second Degree Assault under the Battery theory, the State must prove:

  1. That the defendant caused offensive physical contact with or physical harm to the victim;
  2. That the contact was the result of an intentional or reckless act of the defendant and was not accidental; and
  3. That the contact was not consented to by the victim or legally justified].
2. Examples

Two people each drive their car into a small parking lot. There is only one Parking spot left. Each driver attempts to get his car into the spot. The cars end up in positions where neither car can enter the spot without hitting the other car. Each driver gets out of his vehicle and argument starts. The drivers insult each other, and their voices are getting louder and louder… 

  1. Intent to Frighten – Suddenly, one of the drivers pops the trunk of his car and takes out a tire iron. He holds the tire iron in a position above his head and approaches the other driver. The other driver screams, “What the hell are you doing!!,” jumps back in his car and locks the doors.
  2. Attempted Battery – One of the drivers becomes enraged and steps toward the other driver screaming, “I’m going to kick your ass!!” As that driver steps forward, he swings his fist at the other driver. The other driver, in an attempt to avoid being punched, ducks. The first driver misses, and a bystander intervenes.
  3. Battery - One of the drivers becomes enraged and steps toward the other driver screaming, “I’m going to kick your ass!!” As that driver moves forward he pushes the other driver in the chest. The other driver staggers but does not fall. A bystander intervenes. 

 Under any of the three examples, the defendant can be prosecuted for Second Degree Assault under Maryland Code, Criminal Law, Section 3-203.

3. Related Offenses

Assault in the First Degree - Maryland Code, Criminal Law, Section 3-202

Reckless Endangerment - Maryland Code, Criminal Law, Section 3-204

4. Defenses

As with any alleged criminal act, there are always defenses as to whether the defendant is the person who committed the act. These defenses related to the identification of the defendant as the perpetrator, or whether the defendant may have an alibi. These defenses always apply.

Additional defenses arise depending on the theory of liability put for the by the State. By way of example, if the State alleged that the defendant committed Second Degree Assault by Intending to frighten the victim, and the only evidence demonstrated that the defendant was across the street yelling at the victim, the defendant would be acquitted. There would be no evidence that the defendant intended to place the victim in fear of immediate harm.

As with any assault charge, it is a defense if the defendant committed the assault (1) in defense of others; (2) in defense of his/her habitation; (3) in defense of property; or (3) in self-defense. Each of these defenses have specific elements and constitute a legal justification for the defendant’s assaultive act.

5. Penalties

A conviction under Maryland Code, Criminal Law, Section 3-203 – Assault in the Second Degree is a misdemeanor carries maximum penalty of 10 years in prison and/or a fine of $5000.00. 

6. Criminal Defense for the charge of Assault in the First or Second Degree

If you have been accused of Assault in the First or Second Degree, it is important that you speak with an experienced Maryland attorney at once. Many cases involve unique factual circumstances that an attorney can research and evaluate for you. Additionally, even after charges are filed, an attorney may be able to intervene on your behalf to defuse and explain facts and possible effect a resolution outside the court room. Attorney David Felsen has over 32 years of experience in Maryland courts and has established key relationships with prosecutors and law enforcement. Mr. Felsen is recognized as Maryland Super Lawyer, has an AV (Highest) rating, and listed as one of Bethesda Magazine’s Top Lawyer.

For more information about Malicious Destruction of Property, and to schedule your free consultation, contact Maryland Criminal Defense Attorney David Felsen, at Felsen & Sargent, 600 Jefferson Plaza, Suite 201, Rockville, Maryland 20852, or call 301-251-4010.

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