Facts
The following is based on police reports and the statements taken from those involved by the police.
Ralph and Alice are married and live together. One night, after Ralph has been drinking, he and Alice get into an argument. The argument becomes heated, and Alice throws a rolling pin at Ralph. It misses, and Alice backs away from Ralph in fear. She trips and falls, striking her left shoulder and neck against the kitchen counter. She gets up and runs to the living room, where Ralph grabs her by the neck with his right hand and begins to squeeze.
Alice became extremely scared, and Ralph let go after about ten seconds. Alice was eventually able to get away from Ralph and call the police. While the police interviewed Alice, they caught up with Ralph and arrested him for domestic assault. Officer Norton observed reddish marks that looked like fresh bruises on Alice’s neck, where Alice said Ralph grabbed her. Alice did not indicate to the officer that Ralph grabbing her neck hurt her or caused her to be unable to breathe.
The charging document indicates that Ralph is charged with Domestic Assault in the Second Degree. Specifically, he is charged with “knowingly causing physical pain” to Alice.
Question
Are there any flaws in the charges against Ralph? If so, can they be corrected? Furthermore, what must the State prove in order to obtain a conviction?
Solution
Research here should begin with the statute. §565.073 defines Domestic Assault in the Second Degree. It first requires that the defendant and the victim be members of the same family or household (which is met by the fact Ralph and Alice are married). It states that a defendant commits the crime is he “attempts to cause or knowingly causes physical injury . . . by choking.”
Physical injury is undefined by this statute, so it will be necessary to look it up. § 556.061(36) defines it merely as “physical pain, illness, or any impairment of physical condition.”
Based on these statutes, it is possible that the charge is defective as it stands because it only charges Ralph with actually causing physical injury to Alice, and it does not also charge him, in the alternative, with attempting to cause physical injury to her. The State will be required to prove that Ralph grabbing Alice’s neck actually caused her physical pain, or that it impaired her physical condition. This will be difficult because Alice never said Ralph hurt her, and the bruises on her neck may have an alternative source (falling and striking the kitchen counter).
Can this defect be fixed? Answering this will require consulting the Missouri Supreme Court Rules for Criminal Procedure. Rule 23.08 states that the charging document may be amended or substituted at any time before a verdict, so long as no “additional or different offense is charged, and the defendant’s substantial rights are not thereby prejudiced.” Thus, the State may amend its charging document and include a charge of “attempting to cause physical injury to Alice” so long as it does so before a verdict is rendered in the case.
It may be wise to consult the Criminal Law – Missouri Practice Series here, in order to learn more about cases involving domestic assault. § 17.8 indicates that second degree domestic assault is a very common charge when the victim meets the statutory requirement, and there is an allegation of choking. However, very little is discussed regarding the actual proving of the harm.
In the event that the charging document is not amended, the State will have an uphill battle to fight. Causation is at issue. However, briefly consulting the various secondary sources discussed by this guide, and some cursory case law research makes it clear that causation is almost never litigated in criminal law because prosecutors rarely pursue cases where it is at issue. This will likely require being willing to go beyond criminal law and into torts in order to better understand causation, but one should be careful in such ventures, because the courts may not appreciate tort analysis being applied to criminal cases.
If the State does amend the charging document to include attempt, the State will merely have to prove that Ralph and Alice are married, and that Ralph intended to cause physical injury to Alice by grabbing her neck, and that he took a substantial step towards doing so when he grabbed her neck.
A conviction on either charge will result in the same penalty, because each is a class C felony.
This fact pattern was intended to illustrate how the failure to obtain a simple fact during the course of an investigation can be potentially catastrophic for a State’s prosecution. Further, it was also intended to show that the State has a great deal of leeway in fixing its charges against the defendant when those charges are defective.