In Oklahoma, we have assault and battery with a deadly weapon, shooting with intent to kill, and assault and battery with a dangerous weapon. These charges all come out of the same or similar statutes. The focus on these often misunderstood and mischarged crimes in the first section of this article are about assault and battery with a deadly weapon and shooting with intent to kill (SWIK).

Assault and battery with a deadly weapon and SWIK are found under 21 OS section 652. In Oklahoma, every person who intentionally and wrongfully shoots another or discharges any type of firearm with the intent to kill any person, upon their conviction will be guilty of a felony of course, with a punishment up to life in prison in the Oklahoma Department of Corrections. These charges are also known as 85% crimes.

If you used a vehicle to discharge the firearm, or used a vehicle to shoot a crossbow or other weapon in conscious disregard for the safety of any of the other person or persons, that offense, much like the shooting with intent to kill, but the use of a vehicle adds two years. The sentencing range now becomes two to life instead of zero to life, if you use a vehicle to discharge that firearm.

The assault and battery with a deadly weapon and Shooting with Intent to kill are essentially the attempt to kill statutes in Oklahoma.  

Elements of Assault and Battery With a Deadly Weapon

Assault and battery with a deadly weapon have three essential elements in Oklahoma.

  1. An assault and battery.
  2. Action upon another person.
  3. Involvement of deadly weapon.

Under the uniform jury instructions in Oklahoma, the law actually defines assault and defines battery. An assault is defined as any willful and unlawful attempt or offer to do a bodily hurt to another with force or violence. Battery is defined as any willful and unlawful use of force or violence upon the person of another. So that's your assault and battery definitions, and are the first part of the assault and battery with deadly weapon elements.

What Is a Deadly Weapon in Oklahoma?

Oklahoma defines deadly weapons as any instrument designed or constructed to cause death or great bodily injuries. This includes a pistol, revolver, dagger, Bowie knife,  dirk knife, switchblade or some type of spring type knife, sword cane, knife having a blade which opens automatically, Black Jack or loaded cane, billy club, or metal knuckles.

The entire point or purpose of the use of the deadly weapon is to cause death or great bodily injury. That's one of the big differences that we see in the assault and battery with a deadly weapon, as compared to assault battery with a dangerous weapon.

Assault and Battery With a Dangerous Weapon

Assault and battery with a dangerous weapon is not an 85% crime, like shooting with intent to kill or assault and battery with a deadly weapon. Assault and battery with a dangerous weapon carries a stiff zero to 10 years in prison. 

In Oklahoma, 21 OS section 645 is the assault and battery with danger or weapon statute. The statute states, that every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault, battery, or assault and battery upon the person of another, with any sharp or dangerous weapon or who without such cause, shoots at another with any kind of firearm, air gun, conductive energy weapon, or other means, with the intent to injure any person, although without the intent to kill such person or to commit any felony. If convicted, the charge carries up to 10 years in prison or up to one year in the county jail as a sentencing option.

The different elements in Oklahoma the prosecution must prove both at a preliminary hearing and a jury trial for an assault and battery with a dangerous weapon are as follows:

  1. Assault or battery or an assault and battery
  2. Actions committed upon another person
  3. With a sharp/dangerous weapon
  4. Without justifiable or excusable cause
  5. With the intent to do bodily harm

There are five elements under the assault and battery with the dangerous weapon, as opposed to just three elements with assault and battery.

In assault and battery with a dangerous weapon, there is no intent to kill, even if the charged conduct/act is the discharging of a firearm. That is a big difference when comparing assault and battery with a dangerous to assault and battery with a deadly weapon.

Oklahoma defines a dangerous weapon as any pistol revolver, dagger, Bowie, Dirk, or spring-type knife. Sounds just the same, which it is, blackjack, Billy hand clubs, metal knuckles, or any implement likely to produce death or great bodily harm in the manner it is used or attempted to be used. So what that language is trying to say, is you don't have to have a weapon, a deadly weapon. The “weapon” can be an instrument designed with any purpose under the assault and battery with a dangerous weapon.

Typical fact patterns are where our client took any normal household good or product, from a golf club, a baseball bat, a pool cue, a bottle, a car, any type of normal item or implement and used it in the assault or assault and battery. However, if the normal item can produce death or great bodily harm in the manner it's used or attempted to be used, such as you're going to take a baseball bat, and instead of hitting a baseball or softball, you're going use it on someone’s body; well, in that manner, you possibly could produce death or great bodily injury. The manner of the item’s use changes its classification and makes it available to be a dangerous weapon in this particular type of case.

Difference Between Assault and Battery With a Dangerous vs. Deadly Weapon

A significant difference between the two (assault and battery with a dangerous vs. deadly weapon) is what you see in the sentencing ranges. Assault and battery with a dangerous weapon in Oklahoma carries up to 10 years in prison. Assault and battery with a deadly or shooting with intent to kill carries up to life in prison.

Again, what is the big difference? The attempt to kill element found in the deadly weapon charge. That's assault and battery with a deadly, you're using an implement, which is built and designed to cause death or great bodily injury, as opposed to taking something that is, whether it be a bottle or a pool cue or a stick, for all we know. And you're not trying to kill a person, you might be trying to injure them. You're intending to do bodily harm to them, but you're not trying to kill them.

The implement/weapon that's used, the manner in which it's used, and the purpose of the assault and battery. Are you trying to kill them or are you just trying to do bodily hurt to the person? Right. Up to life with assault and battery with a deadly versus zero to 10 on assault and battery with a dangerous weapon. It makes a big difference when prosecutors get the charging decision wrong.

Protecting Your Rights, Your Freedom, and Your Future

If you're charged with one of these firearms and weapons offenses, get in touch with a top-shelf attorney that actually knows the difference, that's actually made the charging decisions before as a prosecutor, and has dealt with these very issues time and time again. Contact Berlin Law Firm today to schedule an appointment for a consultation.

Lee Berlin
Dedicated to defending clients accused of domestic violence, sex & violent crimes throughout eastern Oklahoma