Aggravated Sexual Assault

Reporter’s Note

CR27-411, -461, -471: 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.

 On CR27-421 (“Joined by Others”), see State v. Wilder & Campbell, 2010 VT 17, 187 Vt. 383.

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