Domestic Assault

Misdemeanor Domestic Assault

First Degree Aggravated Domestic Assault

Second Degree Aggravated Domestic Assault

Reporter’s Notes

The definition of “household member,” and an explanation of “dating,” derive from the statute at 15 V.S.A. § 1101(2).

CR22-321, -331, -336. Misdemeanor Domestic Assault and Lesser Included Offense of Simple Assault.  Depending on the formulation of the charge, simple assault may be a lesser included offense of misdemeanor domestic assault. See, e.g., State v. Bean, 2016 VT 73, ¶¶ 6–10, 202 Vt. 361. “The State may request a lesser-included instruction, even over the defendant’s objections,” and “this request must be granted if supported by the evidence. Id. ¶ 14; see also 13 V.S.A. § 14(a).

CR22-336.  Fear of Imminent Serious Bodily Injury.  (Caution: This statement has not been reviewed since the decision in State v. Hinchliffe, 2009 VT 111, 186 Vt. 487.)  It is not clear under Vermont law whether the court should instruct the jury with regard to the reasonableness of the victim’s apprehension.  As a penal statute, 13 V.S.A. § 1042 is to be accorded a strict construction, and the “rule of lenity” applies.  However, the statute appears to have been enacted to address the unique dynamic of domestic assault cases, where one party knows about traits of the other party which may be subject to exploitation in a manner that would not be operative in a case involving assaults among strangers.  This dynamic is known as “pushing buttons.”

The case State v. Riley, 141 Vt. 29 (1982), discussed the matter of apprehension, indicating that Vermont adheres to the civil notion of assault by menace, but the decision does not address the question of whether the standard is one of reasonableness or a purely subjective test (“a threat of immediate battery resulting in apprehension, even when intended only as a bluff, is so likely to result in a breach of the peace that it should be a punishable offense”).  One may argue that, in codifying the offense of domestic assault, the legislature did not intend the application of an objective standard.  A subjective standard might be appropriate, given the unique circumstances of violence within the family and other close relationships, and the operative effects of such phenomena as patterned abuse and battered women’s syndrome.

Under the common law of civil assault, apprehension of imminent battery is subject to an objective test of reasonableness:  The apprehension must be one which would normally be aroused in the mind of a reasonable person.  However, there is authority to the contrary, the theory being that “if the defendant has knowledge of the plaintiff’s peculiar and abnormal timidity, and intends to act upon it, there should be a right to recover.”  Prosser and Keeton, Law of Torts, § 10.  Prosser also notes that the Restatement of Torts (Second) § 27 provides that reasonableness of the victim’s apprehension is irrelevant, as long as the defendant acts with intent to place the other in apprehension of immediate bodily harm.

In at least one case, the trial court declined to instruct the jury as to either standard, over objection of both the State and Defendant, who had each requested instructions favorable to their respective theories.  The court indicated that no instruction would be given as to the standard for assessment of apprehension unless, upon deliberation, the jury requested clarification.  The court also pointed out that the jury would be instructed that each of the elements, including fear of imminent serious bodily injury, would have to be established beyond a reasonable doubt, and that the jurors were obliged to consider all pertinent evidence and surrounding circumstances in their assessment of proof of the element of placing another in fear of imminent harm as well as all other elements.

CR22-346, -351. First Degree Aggravated Domestic Assault: 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.

CR22-355, -356.  First Degree Aggravated Domestic Assault and Transition to Lesser Included Offense of Domestic Assault. Defendants have a right to choose a “hard” or a “soft” transition between offenses. State v. Powell, 158 Vt. 280, 284 (1992). The hard transition requires a verdict on the highest offense before the jury considers the lesser included offenses. The soft transition allows jurors to consider the lesser offenses if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.” State v. Duff, 150 Vt. 329, 336-37 (1988). Where a defendant “does not choose either transition instruction, it is within the discretion of the trial court to decide which instruction to provide.” State v. Rolls, 2020 VT 18, ¶ 9 (trial court did not err in providing both hard and soft transition instructions, rather than one or the other, in the absence of defendant’s request). The committee’s instructions generally contain soft transitions, because most defendants prefer them. However, for defendants who prefer a hard transition, the committee offers the following example:

You must first consider the charge of first degree aggravated domestic assault.  If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations.  If you decide that the State has not proven each and every one of the essential elements of first degree aggravated domestic assault, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of domestic assault.

CR22-361, -362. First Degree Aggravated Domestic Assault (Threatened with Deadly Weapon) (Used Deadly Weapon).The instructions on first degree aggravated domestic assault, under 13 V.S.A. § 1043, illustrate the difficulty of deciding whether to charge an explicit element of intent.  On one hand, CR22-362 includes an explicit element of intent because the charge would be vague without it.  The terms “using” and “deadly weapon” are both vague unless they are put into context, and thus it is helpful to examine the defendant’s intent.  See State v. Stanislaw, 153 Vt. 517, 523-24 (1990) (describing factors to consider in determining implied elements of mens rea).  On the other hand, instruction CR22-361, charging that the defendant threatened to use a deadly weapon, does not include an explicit element of intent, because to “threaten” means to communicate an intent to inflict harm upon the other person.  It is not necessary to charge a separate explicit element of intent.

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. 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).

CR22-371, -372.  Second Degree Aggravated Domestic Assault: Violation of Court Order.  The statute at 13 V.S.A. § 1044(a)(1) does not specifically require notice of the court order, and the model instruction does not include an element that the defendant received a copy of the order.  (Also see CR22-506, aggravated stalking under 13 V.S.A. § 1063(a)(1)).  In contrast, the statute for violation of an abuse prevention order (13 V.S.A. § 1030) specifically requires notice.  Notwithstanding this difference, the committee notes that, in the rare case when the defendant has not received notice of the order, it would be unfair to consider violation of the order as an aggravating factor.  In such cases, the element of notice must be proven.

There are two versions of this instruction, CR22-371 and CR22-372.  The first version includes violation of a criminal court order as the fifth essential element, whereas the second version treats that element as an enhancement element that must be proven in the second phase of a bifurcated proceeding.  Bifurcation is appropriate when the prejudice arising from the introduction of an existing criminal court order outweighs any relevance that the order might have to the charged offense.  State v. Brillon, 2010 VT 25, ¶ 12, 187 Vt. 444.  A judge may select from the two instructions, based on the circumstances of the case and arguments of counsel.