The criminal act element required for attempted battery assault is an act that attempts to make physical contact with the victim but falls short for some reason. This could be a thrown object that never hits its target, a gunshot that misses, or a punch that doesn’t connect. In some states, the defendant must have the presentability to cause harmful or offensive physical contact, even though the contact never takes place. 1 The present ability requirement is simply an extension of the rule that attempt crimes must progress beyond mere preparation. In the majority of jurisdictions, the criminal act element is measured by the Model Penal Code’s substantial steps test described in detail in "Parties to Crime". 2 To summarize, the substantial steps test requires the defendant to take substantial steps toward completion of the battery, and the defendant’s actions must be strongly corroborative of the defendant’s criminal purpose (Model Penal Code § 5.01).
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