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Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.

 

Assault with Intent to Do Great Bodily Harm, or By Strangulation

Statute: MCL 750.84
Crime Group: Person
Sentence Class: D
Minimum Sentence: 0 Months
Maximum Sentence1: 120 Months (10 Years)
Maximum Fine: $5,000.00
Jury Instructions: MCJI2d 17.7
Sex Offender Registration Required: No

Statutory Language:

(1) A person who does either of the following is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $5,000.00, or both:
     (a) Assaults another person with intent to do great bodily harm, less than the crime of murder.
     (b) Assaults another person by strangulation or suffocation.

2) As used in this section, “strangulation or suffocation” means intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.

(3) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same conduct as the violation of this section.

Discussion:

The crime of “Assault with Intent to Do Great Bodily Harm Less Than Murder or by Strangulation” (often referred to as “GBH”) is a crime against a person. A person charged with this crime is accused of assaulting another with the intent to injury them substantially (such as with intent to cause lifelong injuries or to inflict any physical injury that could seriously harm the health or function of the body) without actually intending to murder them, or assaulting them by cutting off their ability to breath or the supply of blood to their brain (even if there was no intent to do “great bodily harm”). 

To convict a defendant on this matter, the prosecution must prove beyond a reasonable doubt that the crime was committed and the defendant was the one who committed the crime. To do this, the prosecution must prove every element of the charge beyond a reasonable doubt. This does not mean they have to eliminate all doubt that the defendant committed the crime; it simply means that the prosecution’s case must eliminate any lingering questions regarding the innocence of the defendant. This elimination of innocence is the prosecutor’s burden, and if he/she cannot reach this burden then the defendant must be acquitted of the charges.

As the name of the charge implies, there are two ways for the prosecutor to obtain a conviction under this statute: either by proving there was an assault with an intent to cause a serious injury, or that there was an assault by strangulation.

To obtain a conviction under the “great bodily harm” theory, the prosecution must prove all three of the following elements:

  • First, that the defendant tried to physically injure another person;
  • Second, at the time of the assault, the defendant had the ability to cause an injury, or at the very least believed that (s)he had the ability; and
  • Third, the defendant intended to cause great bodily harm.

It is this final element that is most difficult for the prosecutor to prove. The intent of the defendant is always subjective and therefore hard to prove. It can be implied by the circumstances: the type of weapon used, the area of the body that was targeted, words expressed by the defendant during the incident, and so on.

It is important to understand that is it not necessary for the prosecutor to prove that a victim actually sustained an injury; the attempt to inflict the injury is all that is required. For example, a defendant may fire a gun at a victim’s head but miss. Even though no injury was sustained, this was still an assault, and it was still intended to cause a serious injury, so the jury could convict the defendant. Of course, when a person has been injured, this fact may be considered as evidence on whether the defendant intended to cause great bodily harm, but it is not necessarily an “open and shut case” at that point, either. For example, a person may have swung a baseball bat intending to hit someone in the arm, and instead hit them in the head, causing massive head trauma. If the jury is not convinced the defendant intended to hit the victim in the head—if they are convinced he merely meant to bruise the victim’s arm, but accidentally caused a more serious injury—the jury could still acquit the defendant of the “GBH” charge.

To obtain a conviction under the “strangulation” theory, the prosecution must prove all of the following:

  • That the defendant committed a battery on the victim. (A “battery” is a forceful, violent, or offensive touching of another person or something closely connected with that other person.);
  • That the touching must have been intended by the defendant (that is, not accidental);
  • That the touching occurred against the victim’s will; and
  • That the battery was committed by strangulation or suffocation. (“Strangulation or suffocation” means intentionally impeding normal circulation of the blood or breathing by applying pressure on the throat or neck or by blocking the nose or mouth.)

As with the “GBH” theory, it does not matter whether the victim was actually injured; all that matters is that the defendant tried to injure the victim by choking them. Unlike the “GBH” theory, however, the defendant must have actually touched the victim; if the defendant reached out to grab the victim’s throat but never made contact, the defendant can not be convicted of assaulting the victim by strangulation (although another type of crime, such as a simple misdemeanor “Assault”, may apply).

The willingness of prosecutors to engage in plea bargaining in these types of cases varies greatly, depending upon the exact circumstances of the case. The more egregious the allegations, the less likely the prosecutor is to agree to allow a defendant to enter a plea to a lesser charge. Many of these cases are resolved with a plea to a “Felonious Assault” (a “Class F” felony with a maximum sentence of four years in prison) or “Aggravated Assault” (a misdemeanor). In rare cases, the prosecution will allow a defendant to plea to the crime of simple misdemeanor “Assault” under MCL 750.81(1) (a misdemeanor punishable by no more than 93 days in jail and/or a fine of not more than $500.00). This outcome is extremely rare, however, and is likely only to be offered to a first-time offender where the prosecution has a very weak case or the case was overcharged (in other words, the case should have been charged as a misdemeanor to begin with, but an overzealous prosecutor charged it as a “GBH” case).

For those defendants charged with this crime who fall between the ages of 17 and 24 years old, a deferred sentence program may be available. The Holmes Youthful Trainee Act (“HYTA”; MCL 762.11) allows a judge to defer sentencing until the completion of a probationary period. This probationary period may still require some jail time, community service, classes, drug testing, or other programs assigned by the judge. Upon completion of a successful HYTA probation, the charges will be dismissed. It should be noted that for a court to impose a sentence under HYTA when the defendant is 21 years of age or older, the prosecutor must agree to this disposition.

A defendant convicted under this statute will be sentenced under the Michigan sentencing guidelines, and it is impossible to say for sure what the sentence will be in any particular case because sentences are imposed on a fact-specific basis. While fines and probation are often imposed, many defendants are sentenced to serve time in the county jail or prison.

1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence raises to 180 months (15 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 240 months (20 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of life in prison.
 

 

 

 

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