MPJI-Cr 4:01.1 FIRST DEGREE ASSAULT The defendant is [also] charged with the crime of first degree assault. In order to convict the defendant of first degree assault, the State must prove all of the elements of second degree assault and also must prove that: (1) the defendant used a firearm to commit assault; or (2) the defendant intended to cause serious physical injury in the commission of the assault. A firearm is a weapon that propels [a bullet] [shotgun pellets] [a missile] [a projectile] by gunpowder or a similar explosive. Serious physical injury means injury that (1) creates a substantial risk of death; or (2) causes serious and permanent or serious and protracted [disfigurement] [loss or impairment of the function of any bodily member or organ]. Notes on Use Use this instruction if the defendant is charged with first degree assault under MD. CODE ANN., CRIMINAL LAW I § 3-202 (2012 & Supp. 2018) (hereinafter CRIM. LAW I or II § ___ ). Give MPJI-Cr 4:01 (Second Degree Assault) immediately prior to this instruction. Use only the aggravating factor(s) for which a prima facie case has been established. The definition of a firearm in this instruction is not all inclusive. If there is evidence of a firearm that is not provided in this definition, e.g., a starter pistol, or antique pistol, or if there is an issue as to whether a weapon qualifies as a firearm, see MD. CODE ANN., PUBLIC SAFETY § 5-101(h) (2011 & Supp. 2018) (hereinafter PUB. SAFETY § ___ ), as applied in Neal v. State, 191 Md. App. 297, 991 A.2d 159, cert. denied, 415 Md. 42, 997 A.2d 792 (2010). If the defendant is charged with both first degree assault and the use of a handgun in the commission of a felony or crime of violence, and there is a prima facie case of both first degree aggravators, i.e., use of a firearm and actual or intended serious physical injury, the court should require a special verdict from the jury on first degree assault. The court should instruct the jury that if it finds the defendant guilty of first degree assault, then the jury should provide its finding based on (1) use of a firearm, (2) actual or intended serious physical injury, or (3) both.