Opinion
SUPERIOR COURT Pocket No.: 12-CR-766
11-19-2013
STATE OF MAINE, v. JEDIDIAH D. WATSON, Defendant
STATE OF MAINE
KENNEBEC, ss.
DECISION AND ORDER
This matter is before the Court on Defendant's Motion to Dismiss Count I (assault) of the Indictment. For purposes of this motion, the parties stipulate to the following facts:
1. Defendant did not make physical contact with the alleged victim of the assault.
2. The alleged victim, Defendant's minor child, was born on September 8, 2011, and was discharged from the hospital on September 10, 2011. When the alleged victim was discharged from the hospital, the alleged victim weighed 5 pounds.
3. On November 7, 2011, the alleged victim weighed 5 pounds and 1 ounce.
Consistent with the stipulations set forth above, at the hearing on the motion, the State conceded that the assault charge is not based on any physical contact between the Defendant and the alleged victim. Instead, the State alleges that the assault charge results from Defendant's failure to provide the alleged victim with basic sustenance, which failure caused the alleged victim to suffer physical harm (i.e., lack of appreciable weight gain). The issue is thus whether as a matter of law, a person can be guilty of assault in the absence of physical contact of any kind between the person and the alleged victim.
Pursuant to 17-A M.R.S. § 207 (2012), a person is guilty of assault if "[t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person." Given the disjunctive nature of the statute, a person can commit an assault (1) by causing bodily injury, or (2) by offensive physical contact to another person. While it is apparent from the plain language of the statute that some type of physical contact is a necessary prerequisite to a successful prosecution of an assault charge based on "offensive physical contact to another person," the question is whether physical contact is necessary to prove an assault based on bodily injury.
In support of his motion, Defendant relies upon the First Circuit's interpretation of § 207 in U.S. v. Nason, 269 F.3d 10 (1st Cir. 2001). In Nason, the First Circuit wrote,
The breadth of conduct covered by the bodily injury branch of the Maine general-purpose assault statute unambiguously involves the use of physical force. In pertinent part, the statute criminalizes the "use of unlawful force against another causing bodily injury." [citation omitted] In turn, all three types of bodily injury specified by Maine's' criminal code (pain, illness, and impairment) contain the same adjectival modifier: "physical" Me.Rev.Stat.Ann. tit. 17-A § 2(5). Common sense supplies the missing piece of the puzzle: to cause physical injury, force necessarily must be physical in nature. Accordingly, physical force is a formal element of assault under the bodily injury branch of the Maine statute.269 F.3d at 20. The First Circuit's conclusion is consistent with the Law Court's opinion in State v. Griffin, 459 A.2d 1086, 1091 (Me. 1983), where the Court defined "intentionally, knowingly, or recklessly caus[ing] bodily injury ... to another," as "the knowingly intended use of unlawful force against another causing bodily injury as statutorily defined."
The First Circuit reiterated its conclusion in U.S. v. Duval, 496 F.3d 64, 84 (1
The reasoning of the First Circuit is sound. As the First Circuit observed, the statute criminalizes the use of physical force in certain instances (i.e., that which is offensive and that which causes bodily injury). The Court, therefore, concludes that where, as in this case, liability under the assault statute is based on a person causing bodily injury, physical force is a necessary prerequisite for the imposition of liability. Because the parties agree that the assault charge in this matter is not based on physical contact between Defendant and the alleged victim, the Court grants Defendant's Motion to Dismiss and dismisses Count I of the Indictment.
The Clerk shall incorporate this Decision and Order into the docket by reference. Dated: 11/19/13
/s/_________
Justice, Maine Superior Court
st Cir. 2007), where the Court stated, "[b]oth variants of assault regulated under Maine's general-purpose assault statute necessarily involve the use of physical force."