Victim Must Know of Danger to Have Conviction for Assault

On June 18, 2009, Enrique Acosta-Sierra threw a baseball-size piece of concrete at U.S. Custom and Border Protection Officer Abram Lopez.  Acosta-Sierra missed, although he was only seven or eight feet away.  Officer Lopez only became aware of the attempted battery (assault) when the concrete hit the metal gate behind him and made a loud noise.
Summary:  Federal conviction reversed for assault because Federal Officer not aware defendant threw rock at him.
This event took place at the U.S.-Mexico border as Acosta-Sierra was entering the U.S.  When Lopez heard the noise, he looked around to see who might have thrown the concrete and saw Acosta-Sierra walking toward him.  Other officers, who saw the throw, were moving to arrest Acosta-Sierra.

Based on this conduct, the U.S. Attorney’s Office charged Acosta-Sierra with violating 18 U.S.C. §§ 111(a)(1) and (b), assault on a federal officer.  The U.S. District Court found Acosta-Sierra guilty, sentencing him to sixty months in federal prison.

Acosta-Sierra had argued that the government did not prove that Lopez had feared immediate bodily harm.  Acosta-Sierra argued this could not have happened because Lopez only heard the rock hit the metal gate after the concrete was already thrown, missed him and did not realize what had happened until the concrete was safely by.  Moreover, when he looked to the direction from where the concrete was thrown, federal officers were already arresting Acosta-Sierra, so Lopez could not even have been in any fear of Acosta-Sierra.

Acosta-Sierra appealed his conviction to the United States Court of Appeals for the Ninth Circuit. The court of appeals considered the appeal a question of fact and law, so they considered the evidence “de novo,” which means the evidence “all-over” and from the start or fresh, in this context.

This meant that the court of appeals had to determine if, “after viewing the evidence, in the light most favorable to the prosecution, could any rational trier of fact find the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979) 443 U.S. 307, 319.

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The court of appeals then clarified that it defined assault as any willful attempt to inflict injury upon another, or a threat to do so, which when coupled with the apparent ability to do so, causes a reasonable apprehension of immediate bodily harm. United States v. Dupree (9th Cir; 1976) 544 F. 2d 1050, 1051.  The significant aspect of this definition is that logically, the apprehension must be experienced before the harm has passed or else it certainly would not be reasonable.

The court of appeals then reconsidered the evidence under such a standard.  It found that Lopez’s testimony that he was not worried about being hurt was determinative.  Lopez said he did not fear any immediate bodily harm.  In addition, Lopez said he did not see Acosta-Sierra throwing the rock.  He had his back turned to Acosta-Sierra.  Based on this, the court of appeals found that Lopez did not realize what had happened until after the threat of immediate bodily harm had passed.

Therefore, the court of appeals found that the trial court had erred in convicting Acosta-Sierra of assault.  The conviction for assault was therefore reversed.    

For more information about assault, click on the following articles:
  1. Shooting Someone with a BB Gun Can Be Assault with a Deadly Weapon (Penal Code § 245(a)(1))
  2. Street Racing and Assault with Deadly Weapon (the Car) Conviction Upheld When Defendant Ran Red Light and Crashed
  3. What Is Assault (Penal Code § 240)?
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