8.2 AGGRAVATED ASSAULT
To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.
1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
Give 4a and/or 4b as applicable. If 4b is alleged, give the elements of the felony charged.
4. a. The assault was made with a deadly weapon.
b. The assault was made with a fully-formed, conscious intent to commit (felony charged) upon (victim).
Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).
If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then (victim) may be found to have been in fear, and actual fear on the part of (victim) need not be shown.
Definition. Give if 4a alleged.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.
Give if 4a alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.
Lesser Included Offenses
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AGGRAVATED ASSAULT — 784.021 |
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CATEGORY ONE |
CATEGORY TWO |
FLA. STAT. |
INS. NO. |
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Improper exhibition of a dangerous weapon or firearm, if § 784.021(1)(a), Fla. Stat., is charged* |
— |
790.10* |
10.5* |
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Assault |
— |
784.011 |
8.1 |
| — |
Attempt |
777.04(1) |
5.1 |
| — |
Discharging firearms in public |
790.15 |
10.6 |
Comments
*It is not clear whether a charging document that tracks the statute for Aggravated Assault with a Deadly Weapon necessarily charges Improper Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So. 2d 264 (Fla. 3d DCA 1974).
This instruction was approved in 1981 and amended in 2013 [131 So. 3d 755], and 2016.
If you are charged with aggravated assault, contact attorney Joe Bodiford.