Simple Assault

Reporter’s Note

There are many options within the simple assault statute, 13 V.S.A. § 1023.  The committee has separated attempting to cause bodily injury (CR22-011) from causing bodily injury (CR22-021).

The definition of “recklessly” derives from State v. Hoadley, 147 Vt. 49, 55 (1986) (quoting the Model Penal Code definition of “recklessly”); and State v. O’Connell, 149Vt. 114, 115-16 (1987) (applying the definition in case involving § 1023(a)(1)).

“Bodily injury” is defined in 13 V.S.A. § 1021(1).  “Serious bodily injury” is defined in 13 V.S.A. § 1021(2).  “Deadly weapon” is defined in 13 V.S.A. § 1021(3).  Also see State v. Dennis, 151 Vt. 223 (1989); State v. Kennison, 149 Vt. 643 (1987); State v. Galvin, 147 Vt. 215, 216-18 (1986); State v. Martel, 142 Vt. 210 (1982); State v. Blakeney, 137 Vt. 495, 501 (1979); and State v. D’Amico, 136 Vt. 153 (1978).

Deadly Weapon.  The term “deadly weapon” is defined in 13 V.S.A. § 1021(3).  Research indicates that the test is an objective one, as explained in the following case fromNew Hampshire:

    The term “known” is commonly understood as meaning “generally recognized.”  Webster’s Third New International Dictionary 1253 (unabridged ed. 1961).  Thus, the legislature clearly intended to limit the definition of deadly weapon to those instruments which are objectively understood to be capable of causing death or serious bodily injury in the manner in which they are used, intended to be used, or threatened to be used. . . .

 State v. Hatt, 740 A.2d 1037, 1038 (N.H. 1999) (original emphasis).

In a recent Vermont case, there was sufficient evidence that the knife used was a deadly weapon, because the stabbing manner in which it was used to inflict injury was known by defendant to be capable of producing serious bodily injury.  State v. Turner, 2003 VT 73, 175 Vt. 595.

Physical Menace.  If the defendant used a gun, the State need not prove that the gun had a present ability to fire.  An apparent ability to inflict serious bodily injury is sufficient.  State v. Riley, 141 Vt. 29, 32 (1982). The State must prove that the defendant intended to place the victim in fear of serious bodily injury.  The jury may determine intent from the defendant’s conduct and all the surrounding circumstances.  State v. Godfrey, 131Vt. 629 (1973). The State need not prove that the victim actually was in fear of serious bodily harm. State v. Gagne, 2016 VT 68, ¶ 32 (“the instruction as a whole properly placed the focus on the objective character of defendant’s words or acts—whether they conveyed an intent to inflict physical injury upon another person—rather than the reaction of the specific targets of those words or acts”).

Mutual Consent.  See 13 V.S.A. § 1023(b); State v. Sturgeon, 140 Vt. 240, 244 (1981).

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