Deadly Weapon Aggravation

Deadly Weapon Aggravation

Paragraph (a) raises an assault to a felony because of the harm involved: the actor tries to cause serious bodily injury, or actually causes it, with a mental state the paragraph lists. Paragraph (b) reaches aggravation by a different route, which is the means the actor used to attack. It makes an actor guilty of aggravated assault who "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon."¹ Set beside paragraph (a), the text differs in three ways. The injury sought or caused need only be ordinary bodily injury. The attack must be made with a deadly weapon. And the mental-state list is shorter, because the paragraph names an attempt, purpose, and knowledge, and it contains no recklessness branch and no extreme-indifference qualifier.²

The reason a weapon can carry the aggravation alone comes from what a weapon does to the attacker's control over the result. A person who strikes with a bare hand aiming at a bruise will usually produce something near the harm intended, because the force of a hand is limited and easy to gauge. A deadly weapon removes that limit, since a small change in aim or force can turn a blow meant to hurt into one that kills or cripples. An actor who picks such an instrument has therefore chosen a means that puts the victim's life at serious risk, even if the actor sought only ordinary injury, and the Code responds by lifting the offense out of simple assault. The grade reflects the same structure. Paragraph (b) is a felony of the third degree, one grade below the second-degree felony of paragraph (a).³ In paragraph (a) the actor aimed at grave harm, expected it, or consciously ran a grave risk of it, whereas in paragraph (b) the weapon raises the stakes without the actor having aimed at, or shown extreme indifference toward, grave harm. The weapon justifies a felony, and the actor's more limited aim holds the grade below that of paragraph (a).

The pair shows that the weapon, and nothing about the severity of the wound, accounts for the difference in grade. Two questions therefore decide whether paragraph (b) applies, and the next two subsections take them in order. The first is what makes an object a deadly weapon, and the second is what mental state the actor must have had when using it. Where facts could be charged under either paragraph, the grading section at the end of this chapter sorts out how the two relate.

Deadly Weapon Element

Paragraph (b) aggravates an assault by the means the actor used, which is among the most common ways criminal codes raise an assault above the simple grade.⁵ The text requires that the actor attempt to cause, or purposely or knowingly cause, bodily injury "with a deadly weapon," and it supplies no list of qualifying objects.⁶ Whether something is a deadly weapon is therefore answered by a general definition, and the definition in common use is functional: a deadly weapon is one likely to cause death or serious bodily injury.⁷ Because the definition measures likely harm, an everyday object can be a deadly weapon in one use and an ordinary object in another.

The definition has two working parts, and each has its own reason. The first part, likelihood of death or serious bodily injury, ties the aggravator to the danger that justified it. As the opening of this part explained, paragraph (b) lifts an assault to a felony because a weapon removes the actor's control over how much harm a blow produces, so the test for a weapon asks about exactly that risk. The second part, the manner of use, answers a drafting problem. A fixed list of banned objects would omit the tire iron, the broken bottle, and every other instrument the drafters failed to foresee, so an actor could pick an unlisted object, create the same danger, and escape the felony grade. The same list would also catch a listed item held in a way that threatens no serious harm, which would let the label decide the grade. Asking how the object was used avoids both failures, because it reaches an everyday object put to dangerous use and spares an instrument used harmlessly.

The pair moves two variables at once, the instrument and the force behind it, and the definition explains why both matter: each bears on how likely grave harm was. The bat itself never changed. An ordinary sporting good became a deadly weapon in the way it was swung. Students lose this element when they name the object instead of describing how it was used, because a label such as "bat" or "hand" cannot answer a question about the likelihood of grave harm, and the answer can differ for the same object from one use to the next.

A footnote in State v. Smith shows how far the functional definition reaches. It reports that the court in Scroggins defined a deadly weapon as "any object, device or instrument which is likely to cause serious bodily injury," and added that an object meets that description if it is used in a manner in which it is likely to do so.⁸ Applying that definition, Scroggins concluded that the evidence supported the jury's finding that a bite was a deadly weapon.⁹ A bite involves no manufactured object at all, only a part of the human body, and it can qualify because the definition looks to danger in use rather than to the kind of thing used. The conclusion is tied to how the bite was used, however, so nothing in the definition makes every bite, or any other object, deadly in all circumstances. The footnote supports the definition and shows its reach, and it announces no category of always-deadly objects.

A second feature of the test is that likelihood is judged from the manner of use and not from how the injury turned out. The law of deadly force draws the same line: firing a gun toward another person is deadly force whether or not the shot hits, while a swing of the fist that unexpectedly ruptures a spleen is not, because the force was neither intended nor likely to cause death or serious bodily harm.¹⁰ Carried over to paragraph (b), a pistol shot that only grazes still involves a deadly weapon, and a bare-handed blow that by freak chance leaves a grave wound does not turn the hand into one. Paragraph (b) reaches an actor who merely attempts to cause injury with the weapon, so the weapon element cannot depend on a grave result.¹¹ Commentary on homicide takes the same functional view when it describes a deadly weapon as one calculated, from the manner used, to cause death or serious bodily injury, and it adds that even hands or feet can, in an appropriate case, support an inference that the actor meant serious injury.¹² A single punch that leaves a bruise is far from that case.

Culpability for Weapon Assaults

A deadly weapon is only half of paragraph (b), because the paragraph also fixes the actor's state of mind, and it does so with a short list. The actor must attempt to cause bodily injury with the weapon, or must purposely or knowingly cause it.¹⁴ What the list omits matters as much as what it contains. Recklessness is absent, and so is negligence.¹⁵ An actor who injures another with a deadly weapon in either of those states of mind therefore falls outside paragraph (b) and into the simple-assault provisions of subsection (1). The injury that the actor attempts or causes also needs to be only bodily injury, since paragraph (b), unlike paragraph (a), contains no requirement of serious bodily injury.¹⁶

The list has this shape because each of paragraph (b)'s two requirements contributes something different. The deadly weapon supplies the danger, since, as the opening of this part explained, a weapon removes the attacker's control over how much harm a blow produces. The mental state supplies the blame, because it separates an actor who chose to injure from one who merely caused an injury. A felony grade rests on both together, a deliberate attack carried out with a dangerous means. If the weapon alone were enough, a person whose gun discharged during careless cleaning would be convicted of the same felony as a person who deliberately shot another, and the grade would stop telling anyone anything about the actor's choice. Confining paragraph (b) to attempt, purpose, and knowledge keeps the felony for actors who aimed at injury or knew it was coming, and it leaves the careless and the consciously risky to the lower treatment of subsection (1).

Two of the listed states of mind need precise definitions, because bodily injury is a result and the definitions that govern results apply. An actor causes a result purposely when causing it is the actor's "conscious object," which is the wording of the Model Penal Code's general definition of acting purposely in § 2.02(2)(a)(i).¹⁷ An actor causes a result knowingly when the actor is practically certain that the conduct will bring it about, whether or not the result is what the actor wants.¹⁸ The attempt branch reaches the actor who aims at injury with the weapon and acts toward that end but does not succeed, such as a shooter whose shot misses, and because the weapon and the aim are both present, the absence of an injury does not take the conduct out of paragraph (b).¹⁹ Because the paragraph names these states of mind, the prosecution must prove one of them beyond a reasonable doubt, a point a dissenting opinion in Montana v. Egelhoff made about a Montana homicide statute phrased in the same terms: unless the defendant is shown to have acted purposely or knowingly, the defendant is not guilty of the offense.²⁰

The boundary that matters most in practice lies just below knowledge. Recklessness is acting despite actual awareness of a substantial and unjustified risk, and it sits beneath knowledge because the reckless actor foresees a risk while the knowing actor is practically certain of the result.²¹ The awareness must be real, so a risk that the actor should have noticed but did not is negligence, which falls lower still. The line is drawn at practical certainty for a reason: an actor who is practically certain of injury and acts anyway has in effect chosen the injury, while an actor who sees only a risk is gambling that no injury will occur. Tort law draws a closely similar line. In Garratt v. Dailey the court quoted a Restatement comment explaining that intent requires purpose or knowledge that the result is substantially certain, and that an actor who realizes the act carries a very grave risk, without that certainty, may be negligent or even reckless but lacks the intent the rule requires.²² Carried over to paragraph (b), an injury caused in the face of a risk that falls short of practical certainty is not purposely or knowingly caused, however grave the risk the actor saw.

Subsection (1) is where the lower mental states land. As the baseline discussion showed, recklessly causing bodily injury is simple assault under subsection (1)(a), whether or not a weapon is involved. Negligently causing bodily injury with a deadly weapon is simple assault under subsection (1)(b), so even the one clause of subsection (1) that mentions a weapon leaves the conduct at the simple-assault level when the mental state is negligence.²³

The variations hold the weapon, the wound, and the victim constant and move only A's mental state, so the mental state alone accounts for the difference between simple assault and aggravated assault. The healed shoulder wound also shows that paragraph (b) asks only for bodily injury: a wound far short of serious still qualifies when purpose or knowledge and a deadly weapon are both present.²⁴ Students lose this issue when they treat the deadly weapon as enough, because a weapon combined with negligence or recklessness leaves the conduct at simple assault, and the felony requires the listed mental state on top of the weapon. The bathroom-door variation shows the other side of the same point. Purpose is not required, since an actor practically certain of the injury has chosen it as surely as one who wants it, whatever the motive for firing.