Why are you trying to justify his behavior? And technically, no it can't be. It really depends on the circumstances, situation and state you are in.
How can you say something "can't be" charged, and then say "it depends on the circumstances, situation, and state you're in"? If it can't be, it can't be...but it can.
No one's justifying the behavior, I'm merely pointing out the way the law works. According to Wex Legal Dictionary at Cornell University: (
https://www.law.cornell.edu/wex/assault)
1. Intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact.
No intent to cause physical injury needs to exist, and no physical injury needs to result. So defined in tort law and the criminal statutes of some states.
2. With the intent to cause physical injury, making another person reasonably apprehend an imminent harmful or offensive contact. Essentially, an attempted battery. So defined in the criminal statutes of some states.
3. With the intent to cause physical injury, actually causing such injury to another person. Essentially, the same as a battery. So defined in the criminal statutes of some states, and so understood in popular usage.
Technically, it can. Not that it will, or that it's even likely that it will, but it is possible to do it within the law.