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Assault and Battery

Assault
In order to convict someone of an assault, the prosecuting attorney must prove:

1. An accused person willfully and unlawfully committed an act, which would probably and directly result in a physical force/contact with a victim,
2. The accused was aware or should have been aware that as a result of his/her actions, physical force/contact would occur to the victim,
3. The accused had the means to apply the physical force/contact and utilized those means.

An assault does not require a physical contact with the victim or that an actual injury be committed. It requires only that the accused committed an act resulting in the possibility. This is the difference between the crime of assault and the separate offense of battery. It is an error when the two are referred to synonymously, although they generally tend to be charged at the same time.

In many cases, an assault is charged as a misdemeanor, which can carry a term of up to 1 year in county jail. However, this can quickly change to a felony when a weapon is involved and when there is the potential of a life threatening injury to the victim. A felony assault carries a term of up to 4 years and a problem arises when the prosecuting attorney attempts to use virtually any object (i.e. a pen, pencil, your car, or even a small tree branch) and claim that such an instrument is a "deadly weapon" for the purpose of filing a felony charge.

Battery
In order to convict someone of a battery, the prosecuting attorney must prove:

1. An accused used force or violence upon the victim, and
2. The use of the force was willful and unlawful.

Like the crime of assault, a battery can be charged as a misdemeanor, which can carry a term of up to 1 year in county jail and can quickly change to a felony when a weapon is involved and when there has been a significant injury to the victim. A felony assault carries a term of up to 3 years in prison. Here again, a problem can arise when the prosecuting attorney attempts to use the incident as a premise to charge the accused with attempted murder, which can result in a higher sentence (i.e. a life term) if the accused is convicted.