MEMORANDUM with increasing competitiveness. The two girls

MEMORANDUM

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To: Supervising Attorney

Date: October 7, 2018

Re: Clara Adams

INTRODUCTION

Our client Clara Adams has been charged with assaulting Ana Brown, another student at Arcadia High School, where the two girls were involved in a back-and-forth trading of insults that eventually led to Clara throwing a prop at Ana causing some injuries. The issue is whether the court will find the prop to be a dangerous instrument.

FACTS

Clara Adams discusses her recollection of the incident in a prior interview from which we learned that the two girls had been friends since middle school where they were both involved in the drama club. However, their relationship has deteriorated in high school with increasing competitiveness. The two girls continued to be active in theater, and they have contributed to an upcoming musical, Into the Woods by creating props for the set. Approximately one year prior to the incident that led to the arrest of Clara, the two were involved in another episode in which Ana had shoved Clara during a drama rehearsal. Ashley Ward, a school custodian who occasionally participates in drama activities, stepped in to inform the girls that if they do not behave themselves, they would be separated from the musical.

The following account is a summary of the events as described by Ashley Ward. On August 27, during the senior lunch, inside the school cafeteria that is also used for the set of the musical, Clara and Ana were each within their respective groups. Ana was facing away from the stage, located at the back of the cafeteria, and Clara entered the cafeteria walking towards the vending machines. Clara overheard Ana talking behind Clara’s back which triggered a verbal response by Clara who criticized Ana’s prop for not properly portraying the scene of the musical. The back-and-forth insults escalated into a face to face standoff that was ultimately broken up by their friends. Clara was taken in the direction of the microwaves and Ana toward the exit door. Clara then picked up the prop that was sitting on the stage and threw it in the direction of Ana.

The prop was made by Ana to represent a shrub in the musical. It was made of bright-green tissue paper, pipe cleaners and some rocks inside an ordinary plastic pot. The rocks were added by the drama teacher to add some weight in an effort to prevent the students from throwing the prop around during rehearsals. The prop was approximately 6.5 inches across the top and 4 inches across the bottom weighing about 1.5 pounds.

Initially, Ana was not facing Clara when the prop was thrown at her. However, one of Ana’s friends screamed which prompted Ana to turn around. The prop then hit her in the left side of her face causing excessive bleeding from her nose, a scratch below her eye as well as rapid swelling. As Ana fell to the floor (not caused by the force of the prop) Ashley immediately rushed over toward Ana. The bleeding stopped after five minutes and, in that time, Ashley assigned students to alarm the school principal, the school security, and called 9-1-1 herself to request police and EMS services. Ana was taken to the hospital where she was kept overnight for precautionary measures and did not attend school for approximately one week. Upon returning to school while she was taking pain medication, it was clear that there were no long-term injuries. Clara was taken away by the police and charged with Assault.

DISCUSSION

The prop that Clara Adams threw at Ana Brown is likely not a dangerous instrument. Any instrument, article or substance, including a “vehicle” as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury. N.Y. Penal Law § 10.00(13). The instrument, article or substance becomes a dangerous instrument when it is used in a manner which makes it readily capable of causing serious physical injury regardless of how innocuous it appears when used for legitimate reasons. See People v. Carter, 423 N.E. 2d 31-32 (N.Y. 1981). However, when an innocuous object is involved, its capability to readily cause the injury must be reasonably inferred and objectively foreseeable. People v. Travis, 711 N.Y.S. 2d 514 (App. Div. 3d Dep’t 2000). The object’s temporary use instead of its inherent vice that elevates it to a dangerous instrument. See People v. Mitcham, 74 N.Y.S 2d 257-58 (App. Div. 1st Dep’t 2018). The instrument, article substance may also be a makeshift weapon. People v. Griffin, 805 N.Y.S 2d 484 (App. Div. 3d Dep’t 2005). Furthermore, the object need not be in possession of the person using it for it to be a dangerous instrument. People v. Warren, 949 N.Y. S. 2d 499 (App. Div. 2d Dep’t 2012). A serious physical injury occurs when a physical injury creates a substantial risk of death or serious and protracted disfigurement or protracted impairment of health or protracted loss or impairment of a bodily organ’s function. N.Y. Penal Law § 10.00(10).

A rubber boot that was used several times to stomp on the defendant’s head while she was helpless on the ground was a dangerous instrument because the way in which it was used, repeatedly causing contact with the head and the asphalt, was readily capable of causing serious physical injury. In that case the court established a use-oriented approach to determine what a dangerous instrument can be. It held that the rubber boot can become dangerous regardless of its use under regular circumstances. Carter, 423 N.E. 2d at 32.

Similarly, when a heavy ceramic statue was used to strike a victim during a burglary, the object was deemed a dangerous instrument because although the statue was not inherently dangerous in nature, when it was temporarily used to inflict the harm, it was readily capable of causing serious physical injury. Mitcham, 74 N.Y.S 2d at 258. A makeshift weapon made of a 19 ½ inch metal rod, see Griffin, 805 N.Y.S 2d at 484 n.1, that was repeatedly swung at the victim between one and four times was considered a dangerous instrument. Id. at 483. The court held that the weapon was readily capable of causing serious physical injury to the victim. Id. at 484. By contrast, small, wet toilet paper balls that were thrown at a correctional officer through a 2 ½ inch opening in the protective gate from a distance of 12 to 15 feet could not have been foreseen to cause serious physical injury therefore they were not considered a dangerous instrument. Travis, 711 N.Y.S. 2d at 514. A concrete landing was determined to be a dangerous instrument when the victim was thrown down a set of stairs with a concrete landing causing serious physical injury. Warren, 949 N.Y. S. 2d at 497. The court held that the instrument does not necessarily have to be in possession of the defendant for it to be a dangerous instrument. Id. at 499.

The prop is likely not a dangerous instrument. Unlike the Carter case, the prop was not used repeatedly to cause contact with Ana. Nor was the throw preceded by other violent acts such as repeated beating with the fist. There the rubber boot contacted the victim’s head that further resulted in the head contacting the asphalt. The prop was thrown overhand at Ana but it was not a strong enough force to cause the victim to fall to the ground let alone make any contact with it. Unlike the heavy ceramic statue used in Mitcham that was capable of breaking into many pieces each capable of independently causing serious physical injury, the prop was made from a plastic container with an overall weight of only 1.5 pounds without any possible debris. All of the components of the prop, from the rocks to the pipe cleaners were firmly in place and therefore incapable of independently causing serious physical injury. In Travis, the wet toilet papers were small enough to pass through a small, 2 ½ inch opening between the gate bars. Thrown from a distance of 12 to 15 feet, their capability to causer serious physical injury would not have been foreseeable. When considered objectively, they could not be inferred to be capable of such injury. Similarly, an objective fact-finder is unlikely to reasonably infer from throwing the prop that it was readily capable of creating a substantial risk of death or any protracted impairment of health or impairment of the function of any bodily organ. Unlike the 19 ½ inch metal rod used in the Griffin case, the prop was only 6.5 inches across the top and 4 inches across the bottom and though we do not know the exact weight of the metal rod, the material makeup of the object suggests that it must weigh more than the prop which was only 1.5 pounds. The pipe cleaners were round, covered with fuzzy material which made them significantly less dangerous. Unlike the Warren case, the ground did not play any role in the injuries as Ana only fell to the ground out of shock and to control her bleeding.

CONCLUSION

The State may be inclined to argue that since the props were designed by the students to be stationary on a set, they did not go through the proper safety procedures to ensure the objects inside would not fall out of the container, therefore it is not possible to objectively determine if there could be debris or not which are capable of causing serious physical harm. This point is irrelevant since prior to the addition of the rocks, the students repeatedly threw the prop around without any reported injuries. From an objective point of view, this is sufficient proof that an ordinary person would not expect the prop to be capable of causing such injuries. On the other hand, the State may be concerned that pipe cleaners typically have pointed tips however in this case, they were well rounded and covered with soft, fluffy material to significantly lessen the threat of the harsh edges.

The prop’s impact was not strong enough to force Ana to the ground. Based on the above-mentioned differences, the court is unlikely to find the prop a dangerous instrument as it was incapable of causing serious physical injuries.

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