Assault and Robbery

Reporter’s Note

The instructions on Assault and Robbery, 13 V.S.A. § 608, should be tailored to the specific evidence in the case.  The “assault” which is part of “assault and robbery” incorporates the elements of simple assault under §§ 1021 and 1023.  State v. Reynolds, No. 2008-452 (Vt. Nov. 2009) (unpub. mem.); State v. Francis, 151 Vt. 296 (1989).  Any instructions on identity or causation may be expanded or contracted, depending on the significance of those issues in the case.  The definition of “bodily injury” is found in 13 V.S.A. § 1021(1).  The definition of “dangerous weapon” derives from State v. Deso, 110 Vt. 1, 8 (1938).  A gun may be considered a “dangerous weapon” whether or not it is loaded.  State v. Parker, 139 Vt. 179 (1980).  Other relevant cases include State v. Powell, 158 Vt. 280 (1992); State v. Dennis, 151 Vt. 223, 224 (1989);State v. Murphy, 128 Vt. 288, 291-92 (1970); and State v. McClellan, 82 Vt. 361 (1909).

As to the “robbery” part of “assault and robbery,” the statute applies where one, when assaulting another, “robs, steals, or takes from his or her person or in his or her presence money or other property which may be the subject of larceny.” 13 V.S.A. § 608(a).

For a discussion of the “property which may be the subject of larceny” element, see State v. Trowell, 2015 VT 96, ¶¶ 20–22 (rejecting defendant’s contention that trial court erred in not expressly instructing that the money taken must have been the “property of another”; defendant’s theory was that the money he took from victim was actually owed to him, and thus was not the “property of another”).

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