State v. Blakeney

• Decision Date: 02 October 1979
• Docket Number: No. 239-78,239-78
• Citation: State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (Vt. 1979)
• Parties: STATE of Vermont v. Bernard Gordon BLAKENEY.
• Court: Vermont Supreme Court

Page 636

408 A.2d 636

137 Vt. 495

STATE of Vermont v. Bernard Gordon BLAKENEY.

No. 239-78.

Supreme Court of Vermont.

Oct. 2, 1979.

Rehearing Denied Oct. 31, 1979.

Gregory W. McNaughton, Washington County State's Atty., and Philip H. White, Deputy State's Atty., Montpelier, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, Appellate Defender, Montpelier, and Nancy Kaufman, Public Defender, Barre, for defendant.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

HILL, Justice.

The defendant appeals from a conviction of aggravated assault. He alleges error as follows: first, that the State failed to prove essential elements of the charge; second, that the trial court erred in admitting irrelevant evidence; third, that the trial court erred in failing to grant defendant's requested jury instruction; and fourth, that a mistrial should have been granted due to a breach of the trial court's sequestration order.

On April 18, 1978, the defendant, his brother and another young man were making the rounds of the Barre night spots. About 11:00 p. m. they met the alleged victim of the assault. She too had been visiting the Barre night spots and was on her way home. She knew the brother of the defendant but was unacquainted with the defendant. After joining the group and visiting additional night spots they arrived at the Blakeney residence. There she went to bed with the brother. Upon awakening in the morning she found the brother gone and went back to sleep. Awakening later she found the defendant in bed with her. She got up, got dressed and went downstairs to the living room. The defendant followed her. After some talk, he asked her to go to bed with him, an offer she refused.

At this point the factual accounts of the defendant and prosecutrix diverge. According to the prosecutrix, the defendant pushed her into a downstairs bedroom. There he threw her against the wall, hit her in the eye and on the side of her head and body, and pulled her hair. She attempted to escape his attack by crawling under the bed. The defendant grabbed her around the neck and choked her for three or four minutes during which time her breathing was impaired. She was then forcibly pulled from under the bed at which time the defendant threw her on the bed, struck her further and engaged in intercourse with her.

The defendant was charged with both sexual assault and aggravated assault. There was conflicting evidence as to whether the assault occurred before the sex act or after it. The jury found him not guilty of sexual assault but guilty of aggravated assault. We affirm.

I.

The amended information under which defendant was brought to trial for aggravated assault alleged that he "did . . . knowingly and purposely cause serious bodily injury to another . . ., by striking and choking her, all in violation of 13 V.S.A. § 1024(a)(1)." So far as is pertinent here, 13 V.S.A. § 1024 provides:

(a) A person is guilty of aggravated assault if he:

(1) . . . causes (serious bodily) injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

"Serious bodily injury" is, in turn, defined as "bodily injury which creates a substantial risk of death . . . ." 13 V.S.A. § 1021(2). ¹

Defendant argues that the aggravated assault statute punishes the infliction of Injuries which threaten life (I. e., serious bodily injury), not merely life-threatening Conduct. He claims that the latter case is covered by the reckless endangerment statute. 13 V.S.A. § 1025. Defendant premises this argument on the claim that strangulation, with its resultant occlusion of the trachea, is injury while in progress but that "the injury (heals) (so to speak) as soon as the force is released." Defendant overlooks, however, that serious bodily injury, although greater in degree, must first be bodily injury, which is defined as "physical pain, illness or Any impairment of physical condition." 13 V.S.A. § 1021(1). If we were to accept defendant's argument, we would, in effect, be "amending" the statute to read "permanent impairment" rather than its present "any impairment." We are not so inclined.

Defendant alternatively claims that even if the State showed bodily injury within the meaning of the statute, there was no proof of "substantial risk of death." Again, the gist of defendant's argument apparently is that strangulation for three to four minutes is merely life-threatening conduct and that unless the act of strangulation results in permanent physical damage, I. e., injury which threatens life, the defendant is not guilty of aggravated assault. Not only is defendant's interpretation of the statutory language strained but he would have this Court believe that strangulation is an act without injury not covered by the aggravated assault statute unless something more than occlusion of the trachea for three to four minutes but short of death resulted. The fallacy of defendant's argument is apparent when viewed in light of the medical testimony adduced at trial, which was to the effect that occlusion for five minutes would mean death.

Furthermore, the physician who examined the victim on the day of the alleged assault testified that "(t)here were numerous black and blue marks and red areas around the neck which conformed to a hand pattern, such as if she had been grabbed by the neck by two hands . . . ." Based upon his observations, the physician testified that there was a serious risk to life. Indeed, on cross-examination by the attorney for the defendant, he testified that "there was considerable force applied to produce these injuries. I felt that was a life threatening injury."

Whether this evidence established that there was a substantial risk of death was a question of fact for the jury. State v. Fuger, 170 Mont. 442, 554 P.2d 1338, 1340 (1976); People v. Jackson, 194 Colo. 93, 570 P.2d 527, 528 (1977); cf. State v. Persuitti, 133 Vt. 354, 356-57, 339 A.2d 750, 752 (1975) (element of aggravated force in aggravated assault case is a question for the jury). Moreover, with the introduction of contradictory evidence, "it was the exclusive province of the jury, as the fact-finder, to resolve . . . evidentiary conflicts and decide whom, and what, to believe." State v. Waite, 377 A.2d 96, 98 (Me.1977); accord, State v. Bishop, 128 Vt. 221, 228, 260 A.2d 393, 398 (1969) ("jury . . . is the sole judge of the credibility of witnesses and of the weight of their testimony"). Viewing the evidence in the light most favorable to the State, State v. Guppy, 129 Vt. 591, 285 A.2d 717 (1971), and given the combined effect of the testimony, the jury could have reasonably concluded that the actions of the defendant placed the victim under a substantial risk of death. We are not prepared to say that the trial court erred in denying defendant's motion for acquittal.

The defendant also claims that the State failed to prove the required specific intent to cause serious bodily injury. As we have previously held that the crime of aggravated assault is a specific intent crime, State v. D'Amico, 136 Vt. 153, 385 A.2d 1082 (1978), it was incumbent that the State show that the defendant acted with the conscious object of causing serious bodily injury or that he acted under circumstances where he was practically certain that his conduct would cause serious bodily injury. W. LaFave & A. Scott, Handbook on Criminal Law § 28 (1972). See also State v. D'Amico, supra. Cf. United States v. Haldeman, 181 U.S.App.D.C. 254, 335-340, 559 F.2d 31, 112-17 (D.C. Cir. 1976) (discussion of specific intent in the context of conspiracy and obstruction of justice). The State is aided in carrying this burden by the general rule that the jury may find from all the evidence that a person ordinarily intends the natural and probable consequences of his voluntary acts, knowingly done. Domina v. Pratt, 111 Vt. 166, 177, 13 A.2d 198, 204 (1940). See also State v. Ruiz, 171 Conn. 264, 368 A.2d 222, 230 (1976); State v. Littlefield, 389 A.2d 16, 22 (Me.1978).

In light of the testimony that defendant repeatedly struck the victim, that he strangled her for three to four minutes, that the impairment of the victim's trachea for this amount of time was life-threatening and that there was a gross disparity in size between the victim and defendant, ² the jury could have reasonably concluded that, under the circumstances, the defendant possessed the requisite state of mind.

II.

Defendant next asserts that the trial court erred in admitting into evidence the testimony of two witnesses and a picture of the defendant taken shortly after the assault.

During the course of trial the state's attorney asked the victim's mother how she felt about the victim's injuries. Defense counsel objected on relevancy grounds. After a conference at the bench the question was rephrased as follows: "When you saw those injuries, . . . did they upset you?" No objection was raised to this rephrasing either during the bench conference or when asked of the witness. The witness responded, "Very much."

Later in the trial, the state's attorney asked the victim's uncle what his concern was upon seeing the victim after the assault. Defense counsel again objected based on relevancy. The court permitted the question, with defense counsel preserving her objection. The witness answered, "I mean after seeing, you know, the way she was would make you sick to your stomach."

The trial court admitted the picture in question over defendant's properly raised objection. The picture showed defendant approximately twelve hours after he had been arrested and lodged at the Barre lockup. There were noticeable differences in defendant's hair, facial hair and clothing as he appeared in the picture and as he appeared at trial. Defendant claims that the picture was irrelevant to any of the issues of the case.

The test for relevancy generally is whether...