State v. Bolio, 91-206

• Decision Date: 18 September 1992
• Docket Number: No. 91-206,91-206
• Citation: 159 Vt. 250,617 A.2d 885
• Parties: STATE of Vermont v. Pamela E. BOLIO.
• Court: Vermont Supreme Court

Page 885

617 A.2d 885

159 Vt. 250

STATE of Vermont v. Pamela E. BOLIO.

No. 91-206.

Supreme Court of Vermont.

Sept. 18, 1992.

William Sorrell, Chittenden County State's Atty., and Pamela Hall Johnson, Deputy State's Atty., Burlington, for plaintiff-appellee.

Kurt M. Hughes of Wool, Murdoch & Hughes, Burlington, and Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

Defendant was convicted of aggravated assault (13 V.S.A. § 1024(a)(2)) and appeals on grounds that the trial court should have given the jury an instruction on simple assault under 13 V.S.A. § 1023(a)(1). We reverse.

The basic facts are not in dispute. Defendant was charged with shooting Todd Gorton, after receiving a telephone call from her husband David Bolio, then incarcerated at the Chittenden Correctional Center, that Gorton, with whom defendant was then living, had sexually abused the Bolios' son. Defendant testified that upon receiving this report, she became extremely distraught, began crying, and was confused, angry, and scared. She obtained a .22-caliber pistol from a neighbor and confronted Gorton. Defendant testified about the meeting as follows:

Q. What did he [Gorton] say?

A. He just said: "I'm out of here. You're crazy. I didn't touch him." And we argued a little bit. And he just--He laughed at me. He just--I said--I kept saying: "Did you? How could you do that?" He threw his arms up and goes:

"Yeah. So I did. What are you going to do, shoot me?" And I--and I did. I heard the shot and I--he fell down. I looked at him, and I turned around, and I walked away.

A clinical psychologist testified as to the diminished capacity of defendant, who had been sexually abused by her stepfather as a child, was physically abused by her spouses, and has a history of personal drug and alcohol abuse. The witness diagnosed defendant as having an "adjustment reaction disorder," which she defined as "someone reacting to something terrible that has happened." She ascribed numerous factors to defendant's state of mind at the time of the offense, including feelings of failure in protecting her children, guilt over Gorton's abuse of her son, anger over betrayal by Gorton, anger and confusion about not learning sooner of the abuse, failure to deal with her own past sexual victimization, the unavailability of drugs and alcohol, which she had decided to give up, and familiarity with and easy access to firearms.

Based on the proffered evidence of diminished capacity, defendant requested an instruction of simple assault as a lesser-included offense. The trial court declined, stating that "I just don't see recklessness as a lesser-included offense of specific intent. It's just entirely different; entirely different conduct, entirely different thought processes." The court did instruct the jury, however, on the definition of "recklessness." Defendant was convicted of aggravated assault, and the present appeal followed.

The sole issue on appeal is the trial court's refusal to instruct the jury on the elements of simple assault as a lesser-included offense of aggravated assault under 13 V.S.A. § 1024(a)(2). A defendant is entitled to jury instructions on a lesser offense than that which is charged if the elements of the lesser offense must necessarily be included in the greater offense. State v. Bourn, 139 Vt. 14, 15-16, 421 A.2d 1281, 1281-82 (1980). See V.R.Cr.P. 31(c). ^* In State v. Forbes, 147 Vt. 612, 616-17, 523 A.2d 1232, 1235 (1987), we stated that "[a]n 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."

The offense of aggravated assault is committed when a person "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." 13 V.S.A. § 1024(a)(2). Simple assault is defined in § 1023, in relevant part, as follows:

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

(1) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2) negligently causes bodily injury to another with a deadly weapon....

Under these definitions, aggravated assault is an intentional-conduct offense, which involves a higher degree of culpability than reckless conduct. See State v. Sargent, 156 Vt. 463, 466, 594 A.2d 401, 402-03 (1991) ("purposely or knowingly" is higher state of culpability than "recklessly or negligently"); People v. Higgins, 86 Ill.App.2d 202, 207, 229 N.E.2d 161, 163 (1967) ("recklessness" involves criminal liability short of intent or knowledge); Model Penal Code § 2.02(5) (1985). The State asserts that in order to conclude that simple assault is a lesser-included offense of aggravated assault, it would be necessary to equate "recklessly" or "negligently"--an element of simple assault--with "purposely or knowingly," an element of aggravated assault. Reflecting the conclusion of the trial court, the State adds that it is not necessary to act recklessly or negligently in order to commit aggravated assault, and, therefore, reckless or negligent conduct is not necessarily an element of aggravated assault under § 1024(a)(2).

The argument misconceives and misapplies our holdings on the requirement of a lesser-included-offense instruction. In State v. O'Connell, 149 Vt. 114, 115-16 n. 1, 540 A.2d 1030, 1031 n. 1 (1987), we quoted the definition of "recklessly" in the Model Penal Code § 2.02(c) (1985), as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. (Emphasis supplied.)

To "purposely or knowingly" cause harm is to form a degree of intent to harm that is greater than to "consciously disregard" the risk that harm may result from the conduct. Therefore,...