Elmer McDuffy: Criminal Defense Lawyer Park City Utah

If you have been charged with assault, contact an experienced Park City Utah criminal defense lawyer. It is a serious charge and you can be sent to jail. Your liberty is at stake.

The crime of assault can range from simple assault, which is usually a misdemeanor offense, to first-degree assault, in which the defendant causes serious physical injury to the victim. A simple assault is generally defined as an unlawful attempt to injure the victim, coupled with the present ability to commit the violent act. This means that the defendant acts in a threatening manner toward the victim and takes steps toward accomplishing the goal of injuring the victim. Under these circumstances, although the defendant does not actually physically harm the victim, the defendant’s threatening conduct nevertheless causes the victim to be in reasonable fear of receiving a physical attack (a battery). When examining whether the defendant’s conduct rises to the level of a simple assault, several factors must be considered. First, words alone, no matter how abusive or threatening, are not sufficient to constitute an assault. The criminal law does not punish people for having bad thoughts or expressing them to others. If criminal liability were premised on words alone, it would simply be too difficult to prove that the defendant uttered the statements with the intent to carry out a crime as opposed to bluffing or joking with the victim. There must be some other conduct accompanying the words to assist in determining and proving the defendant’s actual intent. Other conduct evidence might include threatening gestures that accompanied the defendant’s words, the presence of a weapon and/or the physical proximity of the defendant to the victim.

Other circumstantial factors that may be considered when determining whether a victim’s fear of a battery is reasonable include the relative sizes of the victim and defendant and any previous relationship between the defendant and victim that might have contributed to the atmosphere of fear.

Assault with intent to Inflict Serious Bodily Injury

In some cases, the defendant’s threatening behavior may actually result in bodily harm to the victim. In most jurisdictions, the seriousness of the victim’s injury will determine the degree of the assault charge. For example, if a defendant acts with intent to cause serious physical injury to the victim and does, in fact, cause such injury, he may be charged with assault in the first degree. The serious injury, in most cases, is caused by the defendant’s intentional use of a deadly weapon or dangerous instrument against the victim. However, a serious injury may also result when the defendant engages in reckless conduct that creates a grave risk of death to the victim (e.g., operating a motor vehicle in a reckless manner).
A deadly weapon or dangerous instrument may include “traditional” weapons such as guns and knives, but may also include “nontraditional” items that can be used in a dangerous manner such as bricks, tire irons, boiling water, heavy boots, and vehicles. The selection and use of such deadly weapons or dangerous instruments to attack victims usually provides strong circumstantial evidence of defendants’ intent to cause serious physical injury to their victims.

One question that frequently arises in assault cases is whether the victim has suffered a physical injury that is serious enough to warrant a charge of first-degree assault. Generally speaking, to constitute a serious physical injury, the injuries must create a substantial risk of death to the victim. When determining whether the victim has suffered a serious physical injury, the trier of fact will be required to consider the nature of the injury, any required hospitalization or surgery, the likelihood of future complications and any permanent injury, disfigurement or disablement to the victim.

In many first-degree assault situations, because the defendant’s conduct is so life-threatening and creates such a substantial risk of death to the victim, the government may also charge the defendant with attempted murder. For attempted murder, the government must prove that the defendant intended to kill the victim and took a substantial step toward accomplishing that objective. For example, if the defendant angrily and viciously wrestles the victim to the ground and begins pounding the victim’s head into the concrete pavement (a dangerous instrument), this conduct would likely be considered first-degree assault. However, the same conduct might also warrant a charge of attempted murder if the nature of defendant’s conduct demonstrates an intent to kill (e.g., using a dangerous instrument such as concrete) and a substantial step toward accomplishing that objective (e.g., pounding the victim’s head into the concrete). The defendant’s intent to kill can be demonstrated circumstantially by examining the type of weapon used as well as the nature and extent of the victim’s injuries.

Assault with Intent to Commit Other Criminal Offenses

A defendant may cause injury to a victim during the course of and in furtherance of the commission of another offense. For example, a defendant may initially intend to commit a robbery and during the robbery attempt, he may cause physical injury to the victim. In that case, the defendant may be charged with assault with intent to commit robbery. This charge covers conduct that occurs when the defendant causes some level of injury to the victim in the process of furthering another crime.

Arson

The elements of the crime of arson include using an incendiary device or explosive with the intent to cause damage to property or vehicles. An incendiary device is one that is designed to explode or produce combustion upon impact. Property can include buildings, whether occupied or not, as well as items attached to the ground such trees and shrubbery.

Additionally, since a significant number of arsons are committed for the purpose of collecting insurance proceeds, many arson statutes specifically criminalize “burning for profit” conduct.

When proving the elements of arson, the government must first demonstrate that the fire or explosion was caused by a human act rather than, for example, an electrical malfunction. Once it is determined that the fire was caused by a human act, the government must then prove that the fire was started with the specific intent to damage property as opposed to an act of carelessness (e.g. carelessly discarding a match or cigarette). Of course, each of these elements may be demonstrated by circumstantial evidence. Using careful arson investigation techniques, fire officials can usually determine the origin of a fire or explosion. For example, if the investigation reveals that the fire began with the aid of an accelerant (such as gasoline) not typically located on the premises, then that provides some circumstantial evidence that the fire may have been started unlawfully.

Linking the defendant to the incendiary device and proving the necessary mental state may be accomplished by showing that the defendant had the means and opportunity to commit the crime. For instance, the government may present evidence that the defendant purchased large quantities of gasoline or other materials to make an explosive or incendiary device shortly before the fire. Or, they may present witnesses who observed the defendant near the location of the fire shortly before it occurred.

Proof of a motive can also significantly bolster the government’s circumstantial evidence in an arson case, although it is not an element of the crime. Proving the basis for a motive to unlawfully burn property might require examining the defendant’s financial condition and potential to collect insurance proceeds. Additionally, in some cases, an unlawful motive might be revealed by exploring prior disputes or threats by the defendant against the owner of the property or the property itself. Each of these facts alone may not be sufficient to establish defendant’s guilt. But, when taken together, they may paint a strong circumstantial evidence picture from which the judge or jury may draw inferences as to the defendant’s intent to unlawfully burn property.

An experienced Park City Utah criminal defense lawyer can help you fight an arson charge.

Drug Offenses

Most drug statutes make it a crime to knowingly manufacture or deliver or possess with intent to manufacture or deliver controlled or counterfeit controlled substances. Controlled substances include, among other things, heroine, cocaine, morphine, methamphetamine, LSD and marijuana. Possession of controlled or counterfeit controlled substances may be actual physical possession or “constructive” possession. Constructive possession means that possession will be implied if the defendant has the intent to possess the illicit substance and maintains control and dominion over the premises where the controlled substances are located. The mere presence of controlled substances on defendants’ premises is not enough, however, particularly if it is a location that is well traveled or occupied by others. There must be sufficient proof that the defendants had knowledge of the presence of the controlled substances and intended to possess the substances even though they may not have been in their physical possession. Thus, if the controlled substances are located in an area of the defendants’ home or car, where they have exclusive dominion or control, this may constitute possession by the defendants, by virtue of the location of the drugs on the defendants’ private property.

In drug-dealing cases, if defendants are apprehended before the actual delivery of the controlled substance, proof of intent to deliver controlled substances is generally demonstrated by circumstantial evidence. The most compelling circumstantial evidence on this issue is the amount of controlled substance defendants have in their possession at the time of arrest. The larger the amount, the more likely it is that the defendants intended to deliver some portion of it to others, rather than keeping it for personal use. Even if the defendants possess a small amount of the controlled substance, they can still be convicted of possession with intent to deliver, but much more circumstantial evidence will be necessary. Thus, in addition to possession, the government might be required to produce evidence of contacts or appointments made for purposes of delivering the controlled substances. Other circumstantial evidence of possession with intent to deliver might include the type of packaging used for the controlled substance, large sums of money or weapons in the defendants’ possession or the presence of other drugs or drug paraphernalia in the area.

If there is insufficient evidence of intent to deliver, then defendants can still be charged with the lesser offense of possession of a controlled substance. Simply proving that the defendants had knowledge of the controlled substance and that it was in their immediate and exclusive control is sufficient for a charge of drug possession. Note here again that knowledge of the controlled substance alone is not enough. The defendants must also have immediate and exclusive control over the controlled substance. Just as in the case of possession with intent to deliver, simple possession of a controlled substance may either be actual or “constructive.”

Interestingly, most drug offense statutes also make it crime to possess with intent to deliver or merely possess counterfeit controlled substances. At first glance, this seems an unusual criminal offense because counterfeit substances don’t cause any real social harm. Nonetheless, one rationale for these provisions is that they allow the government to bring cases against defendants in instances when undercover officers pose as drug purchasers and buy counterfeit controlled substances instead of the “real thing.” Without statutes outlawing delivery or possession of counterfeit controlled substances, the drug seller could not be prosecuted because what he sells the undercover officer is not actually a controlled substance as defined by the statute. A similar result would occur if the officer arrests an individual for simple possession of drugs only to later discover after testing that the drugs are in fact counterfeit.

One of the major difficulties associated with prosecuting defendants for delivery or possession of counterfeit controlled substances involves distinguishing between possession of innocent substances and possession of counterfeit controlled substances. In other words, how can we tell whether the defendant intended to possess counterfeit cocaine or was merely possessing an “innocent” substance such as flour? Generally, the counterfeit substance must be packaged and presented in such a manner that a reasonable person would believe that using the product would produce an effect similar to that of the actual controlled substance. Some factors that will be considered when charging the defendant with delivery or possession of counterfeit controlled substances include the type of storing and packaging used for the counterfeit substance, any representations made by the defendant as to the nature of the substance, and whether the defendant was attempting to exchange the counterfeit substance for something of value.

Drug crimes

are serious offenses. If you have been charged with a drug crime, you should immediately get in touch with an experienced Park City Utah criminal defense lawyer.