Hall v. State

ROBERT M. BELL, Judge,

dissenting.

I respectfully dissent from the majority’s discussion under the heading “The Aggravated Assaults” and its conclusion that under the facts of this case, appellant could properly be convicted of the crime of assault.

As a threshold matter, the entire discussion is nothing more than dicta. More to the point, it is totally unnecessary. Appellant complains about his convictions of assault with intent to murder and assault with intent to prevent lawful apprehension. As to the latter, the majority quite properly points out that appellant failed to preserve that issue for appellate review: he both failed to raise the question at trial and conceded the sufficiency of the evidence to convict. No discussion of the underlying assault charge is necessary, therefore, in connection with that issue. That being so, there is also no necessity to discuss the underlying assault charge with regard to the assault with intent to murder charge. This is true because, as the majority so aptly points out, under no circumstances could the conduct proven have been sufficient to constitute the crime of assault with intent to murder. Therefore, we need only have assumed for the sake of argument, but not decided, that the conduct proven would constitute assault. In so proceeding, we would properly have allowed the issue whether an assault was committed under these circumstances to be resolved on another day and on a set of facts requiring that we do so.

*65 Since however, the majority has discussed the sufficiency of the evidence to prove assault, I will address that issue as well. Contrary to the conclusion reached by the majority, I am not convinced that there was sufficient proof that appellant committed the crimes of assault. The evidence relied upon, and found sufficient by the majority, are two gunshots fired in a wooded area. These shots were fired, as the evidence makes clear, in the following context. The officers were chasing appellant on foot when appellant ran into the wooded area. The officers released the K-9 dog, which was accompanying them, to pursue and catch appellant. After the dog entered the wooded area and just as the officers reached the edge, but prior to their entering it, they heard a gunshot and saw a muzzle flash. They heard a second gunshot seconds later, at which time they ordered the dog to retreat. Neither officer saw, or knew, at that time, who fired the shots; at whom, if anyone, they were directed; or even in which direction they were fired.

I submit that this evidence is insufficient to prove an assault on the officers. To be sure, there was evidence of two gunshots, but that evidence, without more, does not rise to the level of that “reasonably tending to create the apprehension in [the officers] that [appellant was] about to apply force” to them, a necessary element of the crime which must be proven by the State. See Dixon v. State, 302 Md. 447, 464 , 488 A.2d 962 (1985) (Eldridge J., dissenting).

The majority relies upon Dixon v. State and the definition of assault set out therein, 1 as support for their conclusion that the officers were assaulted. They conclude:

*66 The evidence before us in the present case indicates that the three police officers who pursued the appellant were placed in fear of bodily harm when the appellant fired two shots. It seems entirely reasonable that the firing of those shots from a dark wooded area, at close enough range that the officers could see a muzzle flash, would cause the officers to believe that their safety was being threatened by the appellant. It matters not what the appellant’s specific intention was in firing the gun since assault is a general intent crime. We hold that the appellant’s conduct under these circumstances placed the officers in reasonable apprehension of immediate bodily harm and rendered him guilty of assaulting them.

At 45.

In the majority’s view, therefore, it is enough to constitute the crime of assault if shots .are fired in close enough proximity to a person to enable that person to see a muzzle flash. This, they say, causes that person to be in reasonable apprehension of immediate bodily harm. It makes no difference to the majority that there is absolutely no proof of an apparent intention to inflict a battery upon that person, so long as the apparent ability to do so is present.

I think the majority paints with too broad a stroke. The definition of assault adopted in Dixon contemplates the proof of both an apparent intent to commit a battery and the apparent ability to carry out the intention, which together, enable the trier of fact to determine if the person allegedly threatened was in “reasonable apprehension of immediate bodily harm.” Under the majority’s analysis, which requires only proof of the apparent ability to inflict harm, any person in the area, not only the officers who were chasing appellant, would be an assault victim. Such a result is untenable. It should be recalled that after appellant entered the wooded area, the officers released the K-9 dog to apprehend him. It was after the dog pursued appellant into the woods that the shots were heard. It is therefore all too obvious at whom the shots were directed; they were directed at the dog, not at the police officers. *67 Under these circumstances, I submit that more is required to permit the inference that appellant had the apparent intention to inflict a battery upon the officers. I further submit, and for the same reason, that not only must the apparent ability to inflict harm be proven, but that the apparent intention to do so, must be proven as well. Not only was this not done in this case, but the majority does not even require it.

The facts in this case are less favorable to the State than were the facts in Dixon . In Dixon , it was at least possible to conclude from the circumstances that Dixon had the apparent intention to inflict a battery upon the victim if she did not comply with his demand for money: he was face to face with her; he spoke directly to her; and it was to her that the cold, hard stare was directed. Here, there was no evidence of any action taken by appellant prior to entering the wooded area, from which it could be inferred that he intended to inflict a battery on the officers or had the ability to do so. Once in the wooded area, pursued by the dog, all one can determine is that shots were fired. It is pure speculation and an unwarranted extension of the definition of assault set out in Dixon to conclude that this is sufficient to form the predicate for an assault conviction. Accordingly, I dissent.

. "[A]ny attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.” 302 Md. at 458-59 , 488 A.2d 962 .