Aggravated Assault

Reporter’s Note

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.

“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, and the explanation of the required element of intent derives from State v. Bourn, 2012 VT 71.  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)).

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]”).

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