The Court of Appeals in Powell v. U.S., decided on October 1, 2020, deconstructed the intent-to-frighten assault statute in reversing the appellant’s conviction.

Factually, the appellant has kicked a moving police car and had approached the police officer generally in a menacing manner.

The trial court held: the appellant displayed kind of intimidating approach, had a hostile look to her as she approached the Officers and while the defendant was not an exaggerated threat — under the totality of the circumstances she was reasonably threatening and the Officers were reasonably afraid under all those circumstances.

In order to prove intent-to-frighten assault, the government must establish:

1. That the defendant committed a threatening act that reasonably would create in another person a fear of immediate injury;
2. That, when he/she committed the act, the defendant had the apparent present ability to injure that person; and
3. That the defendant committed the act voluntarily, on purpose, and not by accident or mistake.

Moreover, a conviction of intent-to-frighten assault requires proof that the defendant intended:

• Either to cause injury or
• To create apprehension in the victim by engaging in some threatening conduct.

The determinative inquiry is whether the assailant acted in such a manner as would under the circumstances portend an immediate threat of danger to a person of reasonable sensibility.

The Court of Appeals taking a second look at the evidence concluded that the conduct did not reach to the level of proof to establish each and every element of the statute.

The video evidence suggested that the Officer actually deployed her weapon in response to what appellant had already done: kick the officer’s vehicle while appellant was walking in a different direction, seemingly paying no attention to the Officers.

It also appeared that the Officers’ actions with baton drawn had in fact caused the appellant to pivot toward the Officers.

Moreover, the evidence did not support mens rea (intent) for the crime.   Even if the mens rea for intent-to-frighten assault can be satisfied by evidence of recklessness – such is a state of mind in which a person does not care about the consequences of his or her actions evidence of which was not present here.

Thus, the conviction was reversed due to insufficient evidence.

Refer to our Washington DC Criminal Lawyer page for more detailed information on this subject.