- CR22-071. Attempted to Cause Serious Bodily Injury, 13 V.S.A. § 1024(a)(1) (06/15/15)
- CR22-081. Caused Serious Bodily Injury, 13 V.S.A. § 1024(a)(1) (06/15/15)
- CR22-091. Attempted to Cause Serious Bodily Injury With Deadly Weapon, 13 V.S.A. § 1024(a)(2) (09/16/11)
- CR22-086. Caused Bodily Injury With Deadly Weapon, 13 V.S.A. § 1024(a)(2) (09/16/11)
- CR22-096. Prevented Officer From Performing Duty, 13 V.S.A. § 1024(a)(4) (03/23/07).
- CR22-098. Threatened Another With Deadly Weapon, 13 V.S.A. § 1024(a)(5) (12/31/20).
CR22-071, -081: Serious Bodily Injury. The revised definition of “serious bodily injury,” derived from 13 V.S.A. § 1021(2), reflects the legislative determination that strangulation constitutes serious bodily injury. Because the statute’s structure sets out Subsections 1021(2)(A) and (2)(B) as separate, alternative definitions, the updated instruction includes brackets to indicate that the entire definition may not be appropriate in all cases. For instance, where no evidence of strangulation is presented, there is no reason to instruct the jury on the definition of strangulation as provided in Subsection (2)(B). Conversely, in cases where the only evidence is of strangulation, there is no reason to instruct the jury on the definition in Subsection (2)(A) or, for that matter, the definition of “bodily injury.”
The Committee recognizes that some cases might present evidence of both types of serious bodily injury (strangulation and non-strangulation). In those cases, it may be appropriate to instruct the jury on the entire statutory definition, and the jury would likely have to reach a unanimous decision as to either Subsection (2)(A) or (2)(B). Unlike the three “ascending mental states” for second degree murder, which are applied as a hierarchy, see State v. Boglioli, 2011 VT 60, ¶¶ 11–12, 190 Vt. 542; State v. Bolio, 159 Vt. 250, 253-54 (1992), the two definitions of serious bodily injury are presented as alternatives where one does not necessarily subsume the other.
In cases involving evidence of strangulation, the state may proceed either upon a theory that the defendant recklessly caused serious bodily injury to the victim or that the defendant intentionally strangled the victim by intentionally impeding normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person. As suggested in State v. Carter, 2017 VT 32, ¶ 16, 204 Vt. 383, the state should elect between those two options, and the instructions should not blend or commingle the two separate definitions.
“Circumstances manifesting an extreme indifference to the value of human life” are those events surrounding the imposition of serious bodily injury which demonstrate a blatant disregard for the victim’s life. State v. Joseph, 157 Vt. 651 (1991); State v. Saucier, 512 A.2d 1120, 1125 (N.H. 1986).
Simple assault is not always a lesser-included offense of aggravated assault. See State v. Russell, 2011 VT 36 (mem.) (simple assault is a lesser included offense of aggravated assault charged under § 1024(a)(2)); State v. Myers, 2011 VT 43 (simple assault is not a lesser-included offense of aggravated assault charged under § 1024(a)(4)).
CR22-098: Threatened Another With a Deadly Weapon. The definition of “deadly weapon” is found in 13 V.S.A. § 1021(a)(3), and the explanation of the required element of intent derives from State v. Bourn, 2012 VT 71, 192 Vt. 270; see also State v. Kriskov, No. 2011-150 (Vt. Dec. 2011) (unpub. mem.). Unlike a charge for reckless endangerment, an unloaded and inoperable gun may be considered a deadly weapon for purposes of an aggravated assault charged under § 1024(a)(5). Bourn, 2012 VT 71, ¶ 3 n.2; see also State v. Longley, 2007 VT 101, 182 Vt. 452 (holding that an unloaded gun is a “deadly weapon” for purposes of a first-degree aggravated domestic assault charged under 13 V.S.A. § 1043(a)(2)). For further discussion of the definition of “deadly weapon,” see State v. Kuzawski, 2017 VT 118, ¶¶ 8–18, 206 Vt. 351 (box cutter is a deadly weapon).
Whether conduct amounts to a threat is “generally discerned from the perspective of a reasonable person under similar circumstances.” State v. Gagne, 2016 VT 68, ¶ 23; see also State v. Cahill, 2013 VT 69, ¶ 18, 194 Vt. 335 (trial court’s instruction “correctly directed the jury to measure the effect of defendant’s communication according to the perception of a reasonable person, rather than the subjective fearlessness of the [victim]”).
In State v. Dow, 2016 VT 91, ¶ 16, 202 Vt. 616, the Supreme Court affirmed the trial court’s refusal to instruct the jury that “threaten” means “to express one’s intent to harm or kill someone,” as the defendant requested. The Court explained that there was a danger that including the proffered definition would confuse the jury as to the element of intent. The trial court had rejected the defendant’s suggestion as confusing because “the charge was that defendant intended to threaten the officer, not that he intended to harm anyone.”