Serious Injury Aggravation

Serious Injury Aggravation

Paragraph (a) is the harm-based aggravator in the Model Penal Code's aggravated assault provision. Subsection (2) opens with a lead-in declaring that a person is guilty of aggravated assault if he does any of the listed things, and paragraph (a) supplies the first entry on that list.¹ Its text reaches an actor who "attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life."² The sentence is dense, so the sections below take it apart in the order the words appear: the attempt branch, then the result branch with its list of mental states, and then the qualifier that follows that list. Each piece borrows the definition of serious bodily injury from the previous section, which fixes how grave an injury must be before the paragraph applies.

What unites the pieces is a focus on how grave the harm was that the actor sought or inflicted, and on how the actor regarded the victim's life while acting. That focus explains the grade. Subsection (2) makes aggravated assault under paragraph (a) a felony of the second degree, which places it far above the misdemeanor of simple assault in subsection (1).³ A person who meant to maim, or who inflicted grave harm in a way that showed contempt for human life, has committed a wrong of a different order from a person who threw a punch or caused a minor injury through carelessness, and the felony grade tracks that difference.

Each part of the paragraph also has its own reason. The attempt branch exists because the danger of an attack lies in what the actor was trying to do, and whether the target happened to dodge is a matter of luck. An actor who swings a steel bar at someone's knee in order to cripple it is equally dangerous and equally culpable whether the bar connects or strikes a wall, so a rule that waited for a wound would let the victim's reflexes set the grade. The result branch covers the opposite situation, in which the grave harm has actually occurred, and it ties the felony to the actor's state of mind so that a serious injury alone does not make one. The qualifier does the subtlest work. Recklessness is a modest mental state, found in careless driving, rough horseplay, and fights that get out of hand, and serious injuries sometimes follow from such conduct. If recklessness alone sufficed, every careless act that happened to produce a grave wound would become a second-degree felony, and outcome would again set the grade. Requiring circumstances manifesting extreme indifference to the value of human life reserves the felony for the degree of disregard that the criminal law elsewhere treats as marking the worst reckless killings.

The pair differs in the two variables the paragraph measures, the gravity of the injury sought and the gravity of the injury caused, which is why one scene reaches the second-degree felony and the other does not. Students go wrong on the result branch by assuming that any serious injury combined with any recklessness completes the offense. Serious bodily injury is a form of bodily injury, and subsection (1) already punishes recklessly causing bodily injury as a misdemeanor, so recklessness without extreme indifference leaves the actor at the simple-assault floor however grave the wound. With that map in hand, the analysis begins with the attempt branch, because it asks the most basic question the paragraph poses, namely what injury the actor was trying to cause.

Attempting Serious Injury

The first clause of paragraph (a) is the attempt branch, and its text reaches an actor who "attempts to cause serious bodily injury to another."⁵ Two questions follow from those words. The first asks what the actor was trying to bring about, and the answer must be serious bodily injury as defined in the previous section, meaning an injury that risks death or leaves lasting disfigurement or impairment. The second asks how far the actor's conduct had progressed, and under the Model Penal Code the threshold is a substantial step toward the criminal goal, which falls earlier in the sequence of events than the final act before the harm would occur.⁶ Because the clause describes an attempt, nobody has to be hurt, and a swing that misses or a gun that misfires can complete the offense.

The reason for reaching an unsuccessful attempt at this grade lies in what makes an attacker dangerous. An actor who points a loaded pistol at another person's abdomen and pulls the trigger is exactly as dangerous when the weapon misfires as when it discharges, and the victim's reflexes or the weapon's reliability then decide whether the aim is realized. If the paragraph required a wound, the felony would turn on that luck, and an actor who aimed at a grievous injury and missed would fall to a misdemeanor that understates the danger. The substantial-step requirement supplies the check running the other way. It demands conduct that corroborates the purpose, so liability cannot rest on thought alone, and an actor who only wishes to cripple a rival, with no act toward carrying out the wish, has not yet done anything the paragraph reaches.

A second feature of the branch is that the actor needs a specific objective. A criminal attempt requires an intent to bring about the consequence that defines the target crime, and this is so even when the completed crime could be committed with a lesser mental state.⁷ The consequence defining the target crime here is serious bodily injury, so the injury the actor sought sets the grade, and the injury actually inflicted does not. An actor who aims at a grievous wound and misses has attempted it. An actor who aims only at ordinary bodily injury and misses has attempted only that, which is conduct subsection (1) already punishes as simple assault, and paragraph (a) is not engaged. A missed attack often looks dangerous in hindsight, and the temptation is to grade it by how bad it could have been rather than by what the actor was after.

Describing the required state of mind as a purpose directed at serious injury is the usual shorthand, and it leaves one question open that rarely matters. Whether a Model Penal Code attempt must be done purposely, or whether acting knowingly is enough, is hard to say, and in practice the answer seldom changes an outcome.⁸ The situation in which it could is one where the actor hopes the harm will not occur but expects it to, and the Code has been read to favor liability there, on the reasoning that the danger shown is as great, or very nearly as great, as in purposeful conduct.⁹ A problem on this branch will almost always supply facts showing a plain aim at grievous injury or at a minor one, so the working question is what the actor was after.

Because actors rarely announce their objectives, the fact-finder gathers purpose from the actor's conduct, including any words, in light of the surrounding circumstances.¹⁰ The intentional use of a deadly weapon on another person supports an inference of intent to kill or at least to cause serious bodily injury, and in an appropriate case the same inference can be drawn when the only weapon is the actor's hands or feet.¹¹ That inference is the working tool on this branch, since the actor's aim is the element most likely to be disputed when no one was hurt.

The two scenes differ in the injury sought, which is the one variable the branch measures, and a fact-finder separates them through the inference just described. A loaded handgun aimed at the abdomen speaks for itself, while a single swing at a nose points to a minor aim, although a sustained beating directed at the head could support a different inference in an appropriate case.¹²

The attempt branch also fills a gap left by attempted murder. Several mental states can make a completed killing murder, but only an intent to kill will support an attempt, so an actor who intends to inflict serious injury without intending death cannot be convicted of attempted murder.¹³ The rule applies the broader requirement that an attempt carry the specific intent to commit the target crime, which for attempted murder is the intent to kill.¹⁴ Without paragraph (a), an actor who fired at a victim's knee intending to cripple, and missed, would be reachable only as a misdemeanor simple assault, even though the conduct is far more serious than a shove. The attempt branch gives that actor a felony charge fitted to the actual objective. Where the actor's objective was death, attempted murder is also in play, and how the charges relate is taken up in the later section on grading and overlap.

Students lose this issue when a missed attack with a dangerous-looking instrument sends them straight to paragraph (a) without asking what injury the actor was aiming at. The branch asks only about that objective and about the substantial step, so a frightening swing with a modest aim stays at simple assault, while a failed attack aimed at a grievous wound reaches the felony.

Causing Serious Injury

The second clause of paragraph (a) turns from what the actor was trying to do to what the actor actually did. It reaches an actor who "causes such injury purposely, knowingly or recklessly," and the words "such injury" point back to the serious bodily injury defined in the previous section.¹⁷ Two things must therefore be proved. A serious injury must actually have occurred, which the attempt branch did not require, and the actor must have acted with one of the three named mental states toward that injury. The second requirement ties the felony grade to culpability toward the harm: the injury shows how much damage was done, and the mental state shows whether the actor meant it, expected it, or consciously ran the risk of it. That pairing follows the general rule that a defendant is punished only with some mental connection to each element of the offense, whether an act, a fact, or a result, and here the result element is the injury.¹⁸

Each of the three mental states has a short definition in the Model Penal Code, and each is measured against the injury the actor caused rather than against the act in general. They run in descending order of the actor's commitment to the harm:

• Purposely. The actor's conscious object was to cause the serious injury, so the injury was the result the actor was trying to bring about.¹⁹
• Knowingly. The actor was practically certain that the conduct would cause the serious injury, whether or not the actor wanted it.²⁰
• Recklessly. The actor was actually aware of a substantial and unjustified risk that the conduct would cause the serious injury and acted despite that awareness.²¹

The line between the second and third items, certainty versus risk, is the one most easily blurred, and a tort decision shows it clearly even though it concerns a different wrong. In Garratt v. Dailey a boy moved a chair and a woman fell when she tried to sit where it had been, and the court restated the rule that intent requires either a purpose to cause the contact or knowledge that the contact is substantially certain to result.²² The court also quoted the principle that realizing an act carries a very grave risk, without realizing that the result is substantially certain, may make conduct negligent or even reckless but does not amount to intent.²³ The Code draws a comparable line between knowingly and recklessly. An actor who is practically certain that a serious injury will follow has acted knowingly, an actor who perceives only a substantial risk of it has acted recklessly, and the likelihood the actor believed in, rather than the gravity of the outcome, sorts the two.

Because actors seldom announce what they were thinking, the mental state is usually established from what the actor did. In the dissent in Montana v. Egelhoff, which concerned a homicide statute requiring that the defendant purposely or knowingly cause death, the point was made that a mental state written into an offense is an element the State must prove beyond a reasonable doubt, and that a subjective mental state is generally proved only circumstantially.²⁴ The same holds for the three states in paragraph (a). A jury deciding whether an actor purposely or knowingly caused a crippling injury reasons from the weapon, the force, the target, and any words spoken, and a jury deciding recklessness looks for evidence that the actor actually saw the danger.

The list stops at recklessness, so negligence does not satisfy the result branch.²⁵ Negligence means failing to perceive a risk that a reasonable person would have perceived, and the subjective character of recklessness is what separates the two, since proof that the actor should have been aware of the risk is not enough.²⁶ The exclusion follows from what a second-degree felony is for. A felony grade is justified when the actor intended the grave harm, expected it, or consciously ran the risk of it, because only then did the actor's own choice contribute to the harm. An actor who never noticed the danger made no choice about it, and a felony conviction would punish inattention at the same level as deliberate injury. Careless infliction of serious injury is left to lesser offenses and to civil liability, which can respond to carelessness without a second-degree felony conviction.

The pair holds the harm constant and moves only the actor's state of mind, which is the variable the result branch measures. The mental state must be directed at the serious injury itself. An actor who meant only to bruise B and never perceived that a serious injury was likely has not caused serious injury purposely, knowingly, or recklessly, so the grave outcome cannot by itself lift the conduct out of the simple-assault range. Students lose this issue when the gravity of the wound stands in for the actor's mental state, because a wound shows what happened and says nothing about what the actor intended, expected, or consciously risked. One more feature of the text remains. The words "under circumstances manifesting extreme indifference to the value of human life" follow the list and add a further requirement, which the next section takes up.²⁷ That qualifier carries the most weight where the mental state is recklessness, the weakest of the three and the one most often present when careless conduct ends in a grave wound.

Extreme Indifference Requirement

The result branch of paragraph (a) ends with a qualifier that follows the list of mental states: the serious injury must be caused under circumstances manifesting extreme indifference to the value of human life.³⁰ The qualifier asks for a judgment about the circumstances of the conduct, meaning how much danger to life the situation presented and whether running that danger reflected a callous attitude toward the people exposed to it. Its work is easiest to see on recklessness, the weakest of the three listed mental states and the one most likely to be present when a gravely harmful act began as risky but familiar behavior. The text places the qualifier after the entire list, and this chapter does not treat as settled whether it also constrains the purposeful and knowing branches, so the discussion below concentrates on recklessness, where its function is plain.

The reason for the clause shows when the grading ladder is laid out. Recklessness means acting despite actual awareness of a substantial and unjustified risk, and it is a subjective standard, so proof that the actor should have noticed the danger does not satisfy it.³¹ Subsection (1), the baseline discussed earlier, already reaches recklessly causing bodily injury as a misdemeanor simple assault. Paragraph (a), by contrast, is a felony of the second degree.³² Awareness of a substantial risk is a low threshold, because fast driving and rough horseplay both carry one. If that awareness were enough, the felony grade would follow every such choice that happened to end in a grave wound, and the penalty would track luck rather than the actor's culpability. The qualifier prevents that result by adding a second filter, which asks whether the circumstances show a disregard for human life of the kind the second-degree grade is meant to reserve.

The same words appear in the Code's murder provision, so the homicide cases show what the phrase asks. A reckless killing is murder only if done under circumstances manifesting extreme indifference to the value of human life, and that formulation replaces the older language of a depraved heart with wording that tells jurors in ordinary terms what is expected of them.³³ The older vocabulary measured the same thing by degree of risk. Ordinary negligence involves an unreasonable risk, recklessness involves a high degree of risk that the actor realizes, and murder demands a very high degree of risk of death or serious bodily injury, though still something far short of certainty.³⁴ Paragraph (a) borrows the top rung of that ladder, and two variables decide whether a given set of facts reaches it.

The first variable is the size of the danger to life, judged in light of the circumstances the actor knows rather than by the abstract odds. If a bullet strikes a person in the room in each case, a shot fired into an apparently abandoned cabin and the same shot fired into an apparently lived-in city home carried identical odds, yet what the shooter should recognize about the danger to life differs with the circumstances the shooter knows.³⁵ Firing a bullet into a room the actor knows several people occupy, starting a fire at the front door of an occupied dwelling, and playing Russian roulette with another person are among the examples of the very high, unjustifiable danger that supports depraved-heart murder.³⁶ Circumstances shift the answer even for identical conduct: a hunter's shot at a deer with one companion nearby may fall short of that danger, while the same shot in woods filled with hunters may suffice.³⁷

The second variable is justification, because the risk must be unjustifiable under the circumstances and so the social value of the conduct counts. Speeding through crowded streets to rush a passenger to emergency surgery stands differently from the same driving done for the thrill of it.³⁸ The tie between this qualifier and murder-level risk is also built into the injury element. Where serious bodily injury is defined, as in the previous section, by a substantial risk of death, serious permanent disfigurement, or protracted loss of function, an actor who intentionally inflicts it will probably be found to have acted with a depraved heart, which is why that variety of murder is thought to fold into depraved-heart murder in jurisdictions with such a definition.³⁹ Other codes word the idea differently: Kentucky's homicide statute pairs extreme indifference to human life with conduct creating a grave risk of death, and a New York murder provision from the 1940s described an act imminently dangerous to others and evincing a depraved mind, regardless of human life.⁴⁰

The pair holds the actor's awareness constant and changes only the danger to life that the circumstances presented, which is the variable the qualifier measures. The second scene also shows the clause working independently of the injury element, since a grave result does not by itself establish it. Students go wrong when a serious wound is treated as proof of extreme indifference, because the wound records what happened, while the qualifier asks what danger to life the circumstances presented when the actor chose to act. A modest-risk choice that ends badly stays simple assault, and a choice that put many lives at obvious risk reaches the felony even though the actual harm was a single wound.