This section contains the nature of the case and procedural background.

Nancy Lizardo, the victim's mother, testified that during the encounter between D and her son, Luis, she jumped between the two young men and told D that if they were to fight at all, they should not fight with weapons. D refused to drop the baseball bat in his hand and yelled, 'I'm going to fuck him up.' D lifted his hand to try to hit Luis with the bat, but Nancy pushed D away from Luis, who stood only a foot behind her. P charged D with assault under an attempted battery theory. The trial court instructed that to convict D, the jury had to find that D intended to physically harm Luis, committed an act toward that end, and had the actual or apparent ability to inflict bodily harm. It did not instruct. The jury had to find that the D came reasonably close to committing the battery. D was found guilty. D appealed based on the lack of reasonably close language.

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