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How Detailed Does Notice of Assault Charges Have to be Under the Sixth Amendment?

In a recent, unpublished Arizona appellate case, a woman was convicted of disorderly conduct and misdemeanor criminal damage. She was sentenced to concurrent terms of imprisonment, and the longer term was 2.25 years.

According to the prosecution, the case arose when the defendant met the father of her child in a parking lot to give him their child. When the father drove up with a woman, the defendant smashed in a window of the car and hit the woman in the face. When the woman got out of the car, the defendant hit her again. The prosecution claimed that she’d committed a dangerous offense in that she’d threatened to discharge or shown a deadly weapon or dangerous instrument. A detective testified to the grand jury that the defendant had swung a baseball bat to break the window and then swung the bat at the victim’s arm. The defendant told detectives that the victim had gotten out of the car and threatened her, and this was the reason she got the bat.

At trial, the defendant objected to a jury instruction that stated aggravated assault was based on a reasonable apprehension of assault. Ultimately, the court allowed the prosecution to move forward under theories of assault and reasonable apprehension of assault, but it didn’t give the preliminary jury instruction. It reasoned that if someone were in the car, and somebody broke the window of the car, the person inside the car would be in reasonable apprehension of being hurt.

When the state closed its case, the defendant asked for a judgment of acquittal under Rule 20. The prosecution withdrew the assault argument, and the motion was granted with regard only to that argument. The prosecution then told the court it wanted an instruction on disorderly conduct, which is a lesser-included offense of aggravated assault. The defendant objected to this.

The trial court gave an instruction on aggravated assault that was based only on reasonable apprehension and disorderly conduct as a lesser-included offense. The jury convicted her of disorderly conduct. She appealed.

The defendant argued she’d gotten insufficient pretrial notice under the Sixth Amendment and the Arizona Constitution that the prosecution planned to pursue the reasonable apprehension charge. The Sixth Amendment provides that criminal defendants have the right to be told the nature and cause of the accusation against them.

Under A.R.S. Section 13-1204(A)(2), you can be convicted of aggravated assault if you commit simple assault and use a deadly weapon or dangerous instrument to do so. Section 13-1203(A), A.R.S. provides that assault can be charged when someone intentionally puts someone else in reasonable apprehension of an imminent physical injury. The elements required to prove these charges are different.

The defendant contended that the failure to give her notice she could be convicted of aggravated assault by reasonable apprehension required the reversal of the disorderly conduct conviction, which was a lesser-included offense.

The appellate court explained that for the purposes of complying with the Sixth Amendment, the prosecution had to give more notice than simply stating that assault was the charge. The state is supposed to state facts and circumstances that notify the defendant exactly which type of assault she needs to be prepared to defend.

The court reasoned that the information about her running up with the baseball bat in the indictment and hitting the victim in the indictment provided notice of the reasonable apprehension type of aggravated assault, so the defendant could also be convicted of disorderly conduct as a lesser-included offense.

If you face assault charges in Tempe, Chandler, Gilbert, or Scottsdale, consult attorney James E. Novak. He is an aggressive former Maricopa County Prosecutor who can use insights obtained as a prosecutor to determine a strong strategy. He offers a free initial consultation for people facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

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