Concept
Grading and Overlap
Aggravated assault
Grading and Overlap
Section 211.1(2) defines two aggravated assaults and grades them at different levels, so a single event can satisfy both paragraphs and the scheme has to say which one controls. This part fixes the grades first, because everything else depends on where each paragraph sits relative to the other and to simple assault. It then shows how overlap arises and why the more serious paragraph generally controls, connects aggravated assault to attempted murder, and closes with an order of analysis for running a fact pattern from start to finish.
The Grading Ladder
Paragraph (a) is a felony of the second degree, and paragraph (b) is a felony of the third degree.1 Simple assault under subsection (1) sits below both as a misdemeanor, which drops to a petty misdemeanor when the assault is committed in a fight or scuffle that the participants entered by mutual consent.2 The ladder therefore has three rungs, and the step from the bottom rung to the middle one is also the step from misdemeanor to felony, which fits the general understanding that aggravated assault is usually a felony punishable by a term in state prison.3 The rungs are ordered by the worst feature of what the actor sought or risked, and the reasons paragraph (a) outranks paragraph (b) come from the different axes on which the two paragraphs operate.
Paragraph (a) looks to the harm: the actor attempts to cause serious bodily injury, or causes it purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.4 Paragraph (b) looks to the means: the actor attempts to cause, or purposely or knowingly causes, bodily injury with a deadly weapon.5 Paragraph (a) ranks higher because the injury aimed at or inflicted is grave, and because its extreme-indifference qualifier lets recklessness count only when the actor's blame comes close to that of deliberate harm. Paragraph (b) ranks lower because the actor's aim reaches only ordinary bodily injury, and the felony rests on the danger a weapon adds beyond what the actor aimed for. One consequence is that a mental state that looks lower on paper can still reach the top rung when the harm at stake is grave enough, since recklessness can satisfy paragraph (a) but never paragraph (b).
Other codes label their grades differently, so on an exam that supplies a statute the statute's labels control, but the relative order stays recognizable. South Dakota's classes, surveyed in Solem v. Helm, ranked attempted murder as a Class 2 felony and aggravated assault as a Class 4 felony, below it.6 The dissent in Ewing v. California lists assault with a deadly weapon among California offenses that may be treated as either a felony or a misdemeanor, depending on the punishment actually imposed.7 Because the grade turns on the aggravating element, the prosecution has to prove that element. In a footnote in Mullaney v. Wilbur, the Court used assault graded by degrees to show why a state's choice of labels cannot shift to the defendant the burden of disproving an aggravating fact such as intent to kill or rob.8
When Both Paragraphs Fit
Overlap arises because the two paragraphs describe different aspects of one common event, an attack with a dangerous means aimed at a grave result. Serious bodily injury is a kind of bodily injury, so an actor who attempts the serious injury has also attempted bodily injury, and when the attempt is made with a deadly weapon the elements of paragraph (b) sit inside the elements of paragraph (a). People who want to hurt others badly tend to reach for dangerous means, which makes the overlap the ordinary case and not an oddity.
The pair varies one fact, the actor's aim, and the grade follows it even though the shot injured no one and the knife left only a shallow cut. The attempt branches of both paragraphs reach conduct that produced no serious harm, so the actual outcome cannot set the grade.10 When both paragraphs fit, the more serious one generally controls, because grading exists to charge the actor with the offense that matches the worst aspect of the conduct, and here the worst aspect is the aim at a grievous wound. Paragraph (b) stays available on the same facts, which matters when proof of that aim is doubtful: a factfinder who finds only an aim at ordinary injury with the rifle still finds paragraph (b), a third-degree felony.
Each paragraph also has ground the other lacks. Paragraph (b) alone governs weapon assaults aimed at ordinary injury, as the knife example shows. Paragraph (a) alone governs serious injury that the actor recklessly causes under circumstances manifesting extreme indifference to the value of human life, because paragraph (b) has no recklessness branch and requires a weapon, while paragraph (a) requires neither a weapon nor a purposeful aim.11 Students lose points on this material when they grade by the wound that resulted instead of by the aim and the means, because a missed shot can be a second-degree felony while a cut that bled can be a third-degree one.
Aggravated Assault and Attempted Murder
When an actor aims at a grave wound with a rifle, the next question is why the charge is not attempted murder. An attempt requires a specific intent to bring about the crime attempted, and of the states of mind that can make a killing murder, only an intent to kill supports attempted murder. An actor who intends serious injury but not death therefore cannot be guilty of attempted murder.13 The same reasoning governs assault with intent to commit murder, which ordinarily requires that the defendant actually intend the more serious crime and not merely be reckless, even outrageously so.14 The reason is built into what an attempt is. It punishes a failed pursuit of a specified result, and the result named in attempted murder is death, so a defendant whose goal was something short of death has pursued a different result.
Paragraph (a) exists in part to fill the gap this rule leaves. Without it, an actor who set out to maim but not to kill, and failed, would escape attempted murder for want of an intent to kill and would be left with simple assault, a misdemeanor, despite a plan to inflict grave harm. The attempt branch of paragraph (a) closes the gap by making a purpose to cause serious bodily injury, plus a substantial step toward it, an aggravated assault in its own right.15 The line between the two offenses is not crossed merely by calling the aim serious injury when the actor in fact expects death. The Code's drafters opted for attempt liability where an actor expects a death while hoping to avoid it, reasoning that the dangerousness is as great, or nearly as great, as in purposive conduct.16
In State v. Smith, a prosecution for attempted murder by biting, the court observed that even if murder was unlikely to result, the attempt was likely to result in some other serious crime, such as an aggravated assault.17 The passage arose in a sentencing dispute, but it shows how often a failed or doubtful attempt to kill ends up as aggravated assault. A death changes the analysis in another way. The extreme-indifference language in paragraph (a) is the same line that marks a reckless killing as murder, so conduct that would be an aggravated assault when serious injury results can become murder when death results.18 Where a jurisdiction keeps the common-law category of intent-to-do-serious-injury murder, an actor who intended serious injury and killed is guilty of murder, and most modern codes instead fold that case into extreme-indifference murder.19 Once a murder is complete, an assault with intent to commit it merges into the completed crime, so the assault stops being a separate offense.20 Students lose this issue when they call an intent to maim attempted murder, because the choice of charge turns on whether the actor sought death.
Order of Analysis
No single order is required, but the following sequence is a reliable one because each step builds on the one before and the grade falls out of the last step. It follows the chapter's own layering, starting with the assault that every aggravated assault contains and then testing each aggravator in turn.
Step 3 is worth running even after step 2 succeeds, because the aim at serious injury is usually proved by inference from the actor's conduct, and a factfinder who doubts that inference can still find a weapon assault aimed at ordinary injury. Any order that tests both paragraphs and then grades by the higher one reaches the same result, so the sequence above is a convenience for exam answers and does not limit how a court may reason.