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State v. Riley

Supreme Court of Vermont
Feb 2, 1982
442 A.2d 1297 (Vt. 1982)

Summary

affirming attempted assault conviction where police officer saw defendant move handgun from front seat during traffic stop and defendant argued officer in no actual danger because gun was unable to fire, and applying rule that "present ability to inflict injury upon the person assailed was [not] a prerequisite to a finding of simple assault" and "while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient"

Summary of this case from State v. Kuzawski

Opinion

No. 122-80

Opinion Filed February 2, 1982

1. Assault and Battery — Criminal Assault — Elements

As a prerequisite to a finding of simple assault, while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. 13 V.S.A. § 1023(a)(3).

2. Assault and Battery — Criminal Assault — Elements

Holding of supreme court in State v. Deso, 110 Vt. 1, 1 A.2d 710 (1938) which rejected the notion that present ability to inflict injury upon the person assailed was a prerequisite to a finding of simple assault is still valid even though the simple assault statute has been amended since that case was decided. 13 V.S.A. § 1023(a)(3).

3. Assault and Battery — Criminal Assault — Elements

Where defendant charged with attempting by physical menace to put another in fear of serious bodily injury possessed in the course of the alleged incident a handgun lacking a firing pin which therefore could not fire, his contention that the police officer assailed could not be put in actual danger as a result failed, since as a prerequisite to a finding of simple assault, while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. 13 V.S.A. § 1023(a)(3).

4. Assault and Battery — Criminal Assault — Statutes

Vermont's simple assault statute is patterned after the simple assault provision written into the Model Penal Code. 13 V.S.A. § 1023(a)(3); Model Penal Code § 211.1.

5. Assault and Battery — Criminal Assault — Statutes

The language of the simple assault statute that sets forth an attempt by physical menace to put another in fear of serious bodily injury was intended to incorporate into the criminal law the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat. 13 V.S.A. § 1023(a)(3); Model Penal Code § 211.1.

6. Assault and Battery — Criminal Assault — Statutes

Rationale for including the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury even if the alleged assailant acts without purpose to carry out the threat, within the definition of simple assault, the criminal offense, is that a threat of an 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. 13 V.S.A. § 1023(a)(3).

7. Assault and Battery — Evidence — Questions for Trier

Where defendant was charged with attempting by physical menace to put another in fear of serious bodily injury under the simple assault statute, the question of whether or not the defendant's actions amounted to a simple assault was a question for the jury, to be resolved based upon all the surrounding circumstances, including the words spoken, the appearance and demeanor of the parties, and their conduct in light of the setting and circumstances. 13 V.S.A. § 1023(a)(3).

8. Assault and Battery — Evidence — Questions for Trier

Where contradictory evidence is introduced at trial it is the exclusive province of the jury, as finders of fact, to resolve the contradictions and decide who to believe.

9. Assault and Battery — Criminal Assault — Instructions

In the case of the defendant charged with attempting by physical menace to put another in fear of serious bodily injury under the simple assault statute, the court properly instructed the jury that in determining whether or not the defendant intended to place the person assailed, a police officer, in fear they should consider both the bare actions of the defendant and how those actions were perceived by the officer. 13 V.S.A. § 1023(a)(3).

10. Criminal Law — Intent — Proof

Criminal intent is not the secret intent of the defendant, but that intent which can be determined from his conduct and all the other circumstances which surround it.

Appeal from conviction of attempting by physical menace to put another in fear of serious bodily injury under the simple assault statute. District Court, Unit No. 3, Franklin Circuit, Costes, J., presiding. Affirmed.

David G. Miller, Franklin County State's Attorney, and Marianne Lipscombe, Deputy State's Attorney (On the Brief), St. Albans, for Plaintiff.

Nicholas L. Hadden of John Kissane Associates, St. Albans, for Defendant.

Present: Barney, C.J., Billings, Hill, Underwood and Peck, JJ.


The defendant was found guilty after trial by jury on charges of attempting by physical menace to put another in fear of serious bodily injury under Vermont's simple assault statute, 13 V.S.A. § 1023(a)(3). The charge grew out of a confrontation between the defendant and a state trooper on an isolated stretch of I-89 near St. Albans in the early morning hours of October 20, 1979.

The defendant had stopped his car in the breakdown lane of the highway and was seated in the driver's seat with the interior car light on when the officer pulled up behind him and approached his vehicle. When questioned, the defendant stated that he had something like a cramp in his leg, which he was massaging at the time.

During a routine check of the car from the outside, the trooper noticed a handgun on the seat beside the defendant, its barrel pointed toward the passenger door. Opening the door on the defendant's side of the vehicle, the trooper asked the defendant to put both hands on the steering wheel, which the defendant did, and then to get out of the car, which he refused to do.

The trooper then ordered the defendant out of the car, and as he did so the defendant dropped his hand from the steering wheel and reached toward the gun. At this point the trooper drew his own weapon and told the defendant to "hold it right there." The defendant replied "everything is cool, don't shoot," and brushed the gun along the seat until he could place it on the floor in front of the passenger's place. He then got out of the car.

At trial the trooper testified that he had been frightened by the defendant's conduct, and had feared for his life. He said that there was a point at which he could not see the defendant's hand because it was down in front of the seat, and he "knew the gun was with the hand" and "didn't know what the story was."

The defendant claims on appeal that the State failed to prove all the elements of the crime. He maintains that the evidence did not meet our standard for crimes of attempt, as set out in State v. Boutin, 133 Vt. 531, 346 A.2d 531 (1975). He claims first, that because the handgun lacked a firing pin it could not put the trooper in actual danger, and second, that because the evidence showed no sudden or threatening moves by the defendant, the requisite criminal intent was never established. The defendant also claims that the court's instruction to the jury on the issue of intent was improper in that it unduly emphasized the weight to be accorded the trooper's perception of what occurred.

With regard to the capacity of the handgun to fire, this Court in State v. Deso, 110 Vt. 1, 6-8, 1 A.2d 710, 713 (1938), rejected the notion that present ability to inflict injury upon the person assailed was a prerequisite to a finding of simple assault. In that case we adopted the rule that while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. Id. Although the statute has been amended since Deso was decided, the principle has not changed and we find no reason to depart from it in this case.

Vermont's simple assault statute is patterned after the simple assault provision written into the Model Penal Code at § 211.1. (Official Draft and Revised Commentary, 1980). The Comment to that provision explains that the language under which the defendant in this case was charged, 13 V.S.A. § 1023(a)(3), was intended to incorporate into the criminal law the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat. Id. at 177. The rationale for including this tort aspect within the definition of assault is that a threat of an 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. Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn. L. Rev. 71, 75 (1962).

The question of whether or not the defendant's actions in this instance amounted to a simple assault was properly a question for the jury. Its resolution depended upon all the surrounding circumstances, including the words spoken, the appearance and demeanor of the parties, and their conduct in light of the setting and circumstances. United States v. Sciolino, 505 F.2d 586 (2d Cir. 1974). The jury had before it the two participants in the drama, both of whom testified. It was in the best position to determine the issue.

The defendant testified that he slid the gun across the seat of the car and eased it to the floor in an effort to eliminate any possibility that the officer would see it and become so excited that he would shoot the defendant out of fear. The trooper testified that the defendant's actions and his handling of the gun were such that they caused him to feel threatened and to fear for his life. Where contradictory evidence is introduced at trial it is the exclusive province of the jury, as finders of fact, to resolve the contradictions and decide who to believe. State v. Blakeney, 137 Vt. 495, 500-01, 408 A.2d 636, 640 (1979).

The court instructed the jury that in determining whether or not the defendant intended to place the trooper in fear they should consider both the bare actions of the defendant and how those actions were perceived by the officer. This was a correct statement of the law. Criminal intent is not the secret intent of the defendant, but that intent which can be determined from his conduct and all the other circumstances which surround it. State v. Godfrey, 131 Vt. 629, 630, 313 A.2d 390, 391 (1973).

Judgment affirmed.


Summaries of

State v. Riley

Supreme Court of Vermont
Feb 2, 1982
442 A.2d 1297 (Vt. 1982)

affirming attempted assault conviction where police officer saw defendant move handgun from front seat during traffic stop and defendant argued officer in no actual danger because gun was unable to fire, and applying rule that "present ability to inflict injury upon the person assailed was [not] a prerequisite to a finding of simple assault" and "while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient"

Summary of this case from State v. Kuzawski

explaining simple assault statute "was intended to incorporate into the criminal law the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat"

Summary of this case from State v. Kuzawski

noting that Vermont's assault statute, which is patterned on the Model Penal Code, "was intended to incorporate into the criminal law the civil notion of assault" and to permit prosecution "against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat"

Summary of this case from Carter v. Commonwealth

noting that Vermont's assault statute, which is patterned on the Model Penal Code, permits prosecution "against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat"

Summary of this case from Carter v. Commonwealth
Case details for

State v. Riley

Case Details

Full title:State of Vermont v. James Riley

Court:Supreme Court of Vermont

Date published: Feb 2, 1982

Citations

442 A.2d 1297 (Vt. 1982)
442 A.2d 1297

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