Assault - 2nd Degree
2nd degree assault is a misdemeanor subject to a punishment of incarceration of 10 years or less and a financial penalty of $2,500 or less. Distinguished from 2nd degree assault is assault in the 1st degree which is a felony for which the punishment is incarceration not to be more than 25 years.
Simply stated, when 2nd degree occurs and added to it is a dangerous weapon, it then becomes assault in the 1st degree.
A person who commits assault in the 2nd degree must be charged within 12 months from the date of the alleged assault. Assault is a misdemeanor and if the defendant has not been charged within 12 months of the date of the alleged assault, the defendant’s lawyer can raise that as an absolute defense which will lead to the defendant having the State dismiss the charges and the defendant may then have the charges expunged (eradicated).
What is an assault? Assault can take many forms. Some assaults involve one individual creating an incident wherein the alleged victim is placed in imminent (immediate) fear of bodily harm. An example is pointing an arrow or a gun at someone or moving a baseball bat at or near a person but not striking him/her. Another type of assault in the 2nd degree is where a person makes contact with another without the alleged victim’s consent or without legal justification. Patting someone on the back for a job well done would not be considered an assault in the 2nd degree unless the touching occurred to a part of the body that would be considered inappropriate. Legal justification occurs in clear self-defense circumstances. The person defending himself in a self-defense circumstance is not the aggressor. The aggressor is the person who was the first to physically touch the other. You permit your neighbor to use your lawn mower. You need the lawn mower back but the neighbor will not return it. One day, you see your lawn mower on his property and reach for the lawn mower and your neighbor, in seeking to prevent you from taking it back, attempts to push, grab, or physically touch you. You have the right to defend yourself.
When the defendant provides (generates) evidence of self-defense, the State of Maryland’s prosecutor has the burden to introduce evidence that shows (negates) that the defendant was not acting in self-defense. The prosecutor, as part of the State’s burden of proof, must provide evidence beyond a reasonable doubt that the defendant did not act in self defense.
Because defendants have over 90 days of incarceration looming over them, defendants have the right to request a jury trial. Jury trials occur in circuit court. In jury trials, the State of Maryland must prove beyond reasonable doubt to the jury all the elements of assault in the 2nd degree.
A jury in some of these cases must determine if the force used in defending oneself was reasonable. If the force used to defend oneself is greater than the force of the aggressor, then the alleged victim may become guilty of 2nd degree assault.
Fred Antenberg is an attorney who has represented clients in assault cases in Howard County and in surrounding counties in the Baltimore and Central Maryland area. If you have been charged with assault, contact Fred for a free initial consultation -- 410-730-4404.