State v. Bean

• Decision Date: 01 July 2016
• Docket Number: No. 15–118.,15–118.
• Citation: 149 A.3d 487,2016 VT 73
• Parties: STATE of Vermont v. Ronald BEAN.
• Court: Vermont Supreme Court

149 A.3d 487

2016 VT 73

STATE of Vermont

v.Ronald BEAN.

No. 15–118.

Supreme Court of Vermont.

July 1, 2016.

David R. Fenster, Addison County State's Attorney, Middlebury, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

REIBER, C.J.

¶ 1. Defendant appeals his conviction for simple assault, arguing that the trial court erred by instructing the jury to consider simple assault as a lesser-included offense of domestic assault, the crime for which he was charged. Specifically, defendant contends (1) that—as instructed to the jury—simple assault is not a lesser-included offense of domestic assault and (2) that the court cannot instruct the jury to consider a lesser-included offense over the defendant's objection. We affirm.

¶ 2. The altercation leading to defendant's conviction occurred on July 29, 2014, at a Middlebury residential facility for persons with major mental illnesses. In a sworn statement admitted without objection, the complainant claimed that defendant initiated the altercation by pointing his finger at the complainant. The complainant responded by kicking defendant's hand twice and telling defendant that he “needed a kick in the ass.” Suddenly, the complainant experienced blurred vision, pressure, and heat on the left side of his face. Although he initially did not know what had happened, after he saw defendant talking to him, he concluded that defendant had hit him.

¶ 3. Defendant was charged with domestic assault. At trial, he testified that he suffered from schizophrenia and lived at the residential facility. He did not have a complete memory of the altercation and could not remember what started the altercation. The State's case relied on the complainant's sworn statement and the testimony of a staff member of the facility. This staff member said that she was behind defendant as “he reached over with his right hand and punched [the complainant] in the side of the head,” and she could “hear the sound of a punch connecting.”

¶ 4. Defendant responded with two legal theories. First, defendant argued that he could not be convicted of domestic assault because the complainant was not a “household member” under the domestic assault statute. On this point, defendant's counsel addressed the jury that defendant and the complainant were not part of the same household because the residential facility is “more like a boarding house kind of a situation, where each of these people has their own room.” Second, defendant argued that his actions were taken in self-defense because the complainant “kicked at [defendant] twice, by his own statement” and said “something akin to you need to have your ass kicked, I'll kick your ass, words to that effect.”

¶ 5. After the State rested, but before defendant rested, the State asked the judge to instruct the jury on simple assault as a lesser-included offense of domestic assault because “all the elements are the same except for the family or household member.” Defendant's counsel agreed with the State that simple assault is a lesser-included offense of domestic assault. But defendant's counsel objected to the possibility of a second charge so far into the trial, saying “We've passed all evidence; the State's rested ... we would oppose the addition of the lesser-included at this point in time.” After closing statements, the court nevertheless instructed the jury on simple assault:

If you decide that the State has not proven each of the essential elements of domestic assault, then you must consider whether [defendant] is guilty of the lesser-included offense of simple assault. Or if you are unable to agree upon a verdict concerning the charge of domestic assault, after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the offense of simple assault.

This instruction was critical to the case; the jury acquitted defendant of domestic assault but convicted him of simple assault. The court sentenced defendant to nine days in jail, and defendant now appeals.

I.

¶ 6. Defendant first argues that—as instructed to the jury—simple assault is not a lesser-included offense of domestic assault. Although this may initially appear to be a reversal of his counsel's position at trial, defendant emphasizes that he does not refer to simple assault and domestic assault generally, but rather to how the court defined the two offenses in its jury instructions. Specifically, he argues that—again, as instructed to the jury—the elements of simple assault and domestic assault each had an element that the other did not. Defendant primarily contends that (1) the domestic-assault instruction had a “household member” requirement but the simple-assault instruction did not and (2) the simple-assault instruction had a proximate cause requirement but the domestic-assault instruction did not. He secondarily contends that simple assault and domestic assault simply had different intent elements: the domestic-assault instruction had a requirement that defendant acted “willfully” but the simple-assault instruction had a requirement that defendant acted “purposely.”

¶ 7. A lesser-included offense is one that is composed exclusively of elements shared with the greater, charged offense but also lacks at least one element of that greater, charged offense. State v. Forbes, 147 Vt. 612, 616–17, 523 A.2d 1232, 1235 (1987) (“An offense is a lesser-included offense of another if it is composed of some, but not all, elements of the greater offense and does not have any element not included in the greater offense.”); see also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (“[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”). If two offenses share elements but each also has an element that the other does not, then neither can be a lesser-included offense of the other.

¶ 8. As instructed to the jury, the definitions of the two offenses show that simple assault in this case was composed exclusively of elements shared with domestic assault. Explaining the elements of domestic assault, the court instructed the jury:

[T]he essential elements [of domestic assault] are ... (1) [defendant]; (2) caused bodily injury to [the complainant] by punching him in the head; (3) he did so willfully; and (4) the person injured ... was a household member.

Explaining the elements of simple assault, the court instructed the jury:

The essential elements of [simple assault] are ... (1) [defendant]; (2) caused bodily injury to [the complainant] by punching him in the head; and (3) he did so purposely.... To cause bodily injury means that [defendant's] acts produced bodily injury to [the complainant] in a natural and continuous sequence, unbroken by any efficient, intervening cause.

These portions of the jury instructions are pertinent to defendant's contention that the elements of simple assault and domestic assault—as instructed—each had an element that the other did not.

¶ 9. Defendant correctly notes that the domestic-assault instruction had a “household member” requirement but the simple-assault instruction did not. These instructions accurately reflect that simple assault is a lesser-included offense of domestic assault because, with the exception of the “family member” or “household member” requirement, domestic assault includes every element of simple assault. See State v. Swift, 2004 VT 8A, ¶¶ 6, 8, 176 Vt. 299, 844 A.2d 802 (“[T]he elements of simple assault are incorporated within the elements of second-degree aggravated domestic assault, and thus simple assault is a lesser-included offense.... A simple assault becomes a domestic assault when it is perpetrated against a ‘family member,’ or ... a ‘household member.’ ”). Of relevance to this case, the “household member” requirement is met if the victim is living or has lived with the assailant, or shares or has shared occupancy of a dwelling with the assailant. See 15 V.S.A. § 1101(2) ( “ ‘Household members' means persons who, for any period of time, are living or have lived together, are sharing or have shared occupancy of a dwelling, are engaged in or have engaged in a sexual relationship, or minors or adults who are dating or who have dated.”).

¶ 10. However, defendant incorrectly argues that the simple-assault instruction had a proximate cause requirement but the domestic-assault instruction did not. He notes that the court did not explain “cause bodily injury” in its domestic-assault instruction but did in its simple-assault instruction. For simple assault, the court effectively explained proximate cause to the jury: “To cause bodily injury means that [defendant's] acts produced bodily injury to [the complainant] in a natural and continuous sequence, unbroken by any efficient, intervening cause.” But considering the facts as stated in complainant's sworn statement and the testimony of the staff member relating to causation, no reasonable juror could find that there was an “efficient intervening cause” between defendant's punch and complainant's head injury. In other words, the evidence showed that complainant's head injury could be explained only by defendant's punch. A proximate-cause instruction was superfluous for the simple-assault instruction and likewise would have been superfluous for the domestic-assault instruction. Therefore, although a proximate-cause instruction was given as part of the simple-assault instruction, it did not actually add an additional element to simple assault that domestic assault lacked.

¶ 11. Finally, defendant's argument regarding a difference in intent elements likewise fails; we do not agree that simple assault and domestic assault—as...