The crime of assault breaks down into two subcategories: an attempted battery (e.g., intentionally swinging at a person with a bat and missing) or a threatened battery (e.g., waving a bat toward a person in an overt and objectively menacing way). See Commonwealth v. Gorassi, 432 Mass. 244, 247-248 (2000); Commonwealth v. Melton, 436 Mass. 291, 294 (2002); Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521 (1995), S. C., 421 Mass. 610 (1996). The defendant Chamber's claim on appeal is that while there was evidence of attempted battery, there was insufficient evidence of threatened battery.

For threatened battery assault, the defendant must have engaged in "objectively menacing" conduct with the intent to cause apprehension of imminent physical harm. See id. (citing Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 649 N.E.2d 784, 787 n.7 (1995)); see also Commonwealth v. Delgado, 367 Mass. 432, 326 N.E.2d 716, 719 n.3 (1975) (quoting Restatement (Second) of Torts § 31 (1965)) ("Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.").

"In the case of a threatened battery type of assault, the [plaintiff] must prove that the defendant engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm." Gorassi, 432 Mass. at 248, 733 N.E.2d at 110 (quoting Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 524 n. 7, 649 N.E.2d 784, 787 n. 7 (1995)). "[W]hat is essential is that the defendant intended to put the victim in fear of imminent bodily harm, not that the defendant's actions created a generalized fear or some other unspecified psychological harm in the victim."

In regard to the second kind of assault, the claimant has the burden of proving that the actor "engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm." Gorassi, 432 Mass. at 248, 733 N.E.2d at 110 (quoting Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n. 7, 649 N.E.2d 784, 787 n. 7 (1995)). Moreover, the Supreme Judicial Court has endorsed the formulation set forth in the Restatement (Second) of Torts at least with respect to the effect of words alone: "'Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.'"

A conviction of assault under a theory of threatened battery requires the prosecution to prove that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat. See Commonwealth v. Chambers, 57 Mass. App. Ct. 47, 49, 51 (2003); Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 523-524 (1995), S.C., 421 Mass. 610 (1996) (adopting opinion of Appeals Court). The victim need not actually be in fear but must apprehend the risk of an imminent battery.

Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000), and cases cited. Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521 (1995), S.C., 421 Mass. 610 (1996). The crime of assault by means of a dangerous weapon adds one additional element, namely, that the assault was perpetrated by means of a dangerous weapon.

Melton, 436 Mass. at 295 n.4, 763 N.E.2d 1092. It is a specific intent crime, which requires the Commonwealth to show that the defendant intended to put the victim in fear. Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 523-525, 649 N.E.2d 784 (1995), S.C., 421 Mass. 610, 659 N.E.2d 284 (1996). The juvenile contends that the judge found that he intended only to put E in fear, and impermissibly relied on the doctrine of transferred intent in finding that he also intended to put B.H. and A.R. in fear.

Because the Commonwealth proceeded on the theory of a threatened battery, it was required to prove “that the defendant engaged in ‘objectively menacing’ conduct with the intent to put the victim in fear of immediate bodily harm.” Id. at 248, quoting from Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 524 n. 7 (1995), S.C., 421 Mass. 610 (1996). “[I]t is well established ... that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault.”

These elements are consistent with those for an attempted battery. See Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521 (1995), S.C., 421 Mass. 610 (1996). We note that the defendant's counsel carefully preserved the issue for appellate review, objecting to the trial judge's failure to apply the elements of criminal attempt.

Id. at 248. See Commonwealth v.Musgrave, 38 Mass. App. Ct. 519, 524 n. 7 (1995), S.C., 421 Mass. 610 (1996). The defendant's conduct in entering the Lacy home while holding a gun, pointed up, was objectively menacing and could reasonably be understood as intended to put Lacy and her children in fear of immediate harm. From this objectively menacing conduct, viewed in the light most favorable to the Commonwealth, a jury could have concluded that the defendant had threatened the imminent use of force.