One night, Jacob is walking home from his shift at a bar. Steven walks up behind him and holds up his index finger to Jacob’s back; Jacob believes it is a gun. Steven instructs him to walk to the adjacent alley, kneel on the ground facing the wall, and orders Jacob to give him all his money, valuables, and cell phone. Steven threatens Jacob and tells him not to make any sound or Steven will shoot him. After Steven leaves, Jacob quickly reports the crime and a patrol car was sent to canvas the location. Steven is found with Jacob’s items and is subsequently arrested. Is Steven liable for attempted battery assault? Why or why not? Is Steven liable for assault of placing another in fear of a battery? Why or why not?

Question

What will be an ideal response?

Answer 1

Steven is not guilty of attempted battery assault because the situation does not fulfill the requirements. Steven lacks intent to commit a battery because he used his fingers as a “weapon” rather than a gun, which also fails to fulfill the requirement for taking significant steps toward the commission of the battery. Likewise, because Steven used his hand to simulate a gun, rather than possessing an actual gun, Steven lacked the present ability to commit the battery. Steven, however, is guilty of assault of placing another in fear of a battery because all requirements are fulfilled. By using his hand to simulate a gun, Steven intended to cause fear of immediate bodily harm, especially because Jacob believed the finger pointed at his back was a gun. Steven also threatened Jacob and under the same circumstances, a reasonable person would fear bodily harm. Finally, Jacob possessed a reasonable fear of imminent bodily harm because of the threat and the simulated gun.