A Good Kick In The Face

State v. Bean, 2016 VT 73

By Amy E. Davis

Two residents live in a residential facility for persons with mental illnesses. Defendant points his finger at the Claimant. Claimant says, “You need a good ass-kickin’,” and kicks at him. Claimant’s vision goes blurry, and there’s pressure and heat on one side of his face. Defendant gets charged with domestic assault. Defendant testifies that he suffers from schizophrenia and does not remember what started the altercation. A staff member testifies that she saw Defendant punch Complainant in the head.

Defendant’s argument at trial relied on two theories: first, that the complainant was not a “household member” under the domestic assault statute, and therefore could not be convicted of domestic assault; and second, that it was self defense because the complainant had kicked at him and told him he needed his ass kicked.

At the end of the State’s case, the State asked the judge to give a jury instruction on simple assault as a lesser-included offense of domestic assault. The rationale being that all of the elements were the same except the household member element. Defendant’s counsel agreed that simple assault was a lesser-included offense, but objected to the possibility of a second charge so far into the trial. The court instructed the jury on the simple assault after closing argument anyway, saying:

“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.”

Jury convicted defendant of simple assault and gave him 9 days in jail.

Defendant appeals, arguing first that simple assault is not a lesser-included offense of domestic assault. This is not actually a reversal of counsel’s position at trial, but counsel argues that the court erred in its instructions. Specifically, the elements of simple assault and domestic assault each had an element the other did not: domestic assault had an extra “household member” requirement, the simple assault had an extra “proximate cause” requirement. Also, the intent elements are different: domestic assault requires “willfully” but simple assault requires “purposefully.

This is the way lesser-included offenses work: the greater charge has a certain number of elements. The lesser-included offense only needs the same elements as the greater charge, but one less. If the greater offense has X, Y, and Z for elements, then the lesser offense only needs X and Y, or Y and Z, etc. If the 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.

The jury instructions in the present case looked like this:

Domestic Assault	Simple Assault
Defendant	Defendant
Caused bodily injury	Cause bodily injury
Willfully	Purposely
Person injured is a household member.	Bodily injury means that defendant’s act proposed bodily injury to the complainant in a natural and continuous sequence, unbroken by any efficient, intervening cause.

The SCOV says that the defendant is correct in saying that the domestic assault instruction has a “household member” requirement the simple assault instruction did not. The SCOV also says that defendant is wrong in arguing that simple assault has a proximate cause requirement the domestic assault instruction did not. Its reasoning is that the proximate cause instruction was unnecessary because no reasonable juror could find that there was an intervening cause between Defendant’s fist connecting with complainant’s head. So, it really does not add an element that domestic assault lacked because it was an unneeded element.

Finally, the SCOV disagrees with Defendant’s argument that there is a difference in intent element, at least as instructed. The court used “willfully” for domestic assault and “purposely” for simple assault, but there was no relevant difference between the explanations of the terms. The SCOV says the explanations are interchangeable – both require the defendant to have acted intentionally rather than mistakenly. The SCOV then launches into a list of cases that supports its position that “willfully” and “purposefully” are equivalent in this case.

Defendant’s next argument is that the court cannot tell a jury to include a lesser-include offense over defendant’s objection. Defendant argues that the only time the court can give the instruction over the defendant’s objection is when it is needed to protect the defendant’s right to a fair trial under the Sixth Amendment and Article Ten.

The SCOV points to 13 VSA §14(a) allowing the court to give a lesser-included jury instruction if requested by either party. In fact, the statute dictates that the State may request the instruction, and, if the State requests it, the court must give it. Also, the court may consider the instruction absent a request from either party.

Going with the purposes and traditions of having lesser-included instructions, the SCOV reasons that they are a tool for the defendant, the prosecutor, and society as a whole. Sure, it gives the jury an alternative from convicting the defendant from a greater offense, but it also gives the State a chance to save its case if the evidence doesn’t prove the greater offense. Vermont isn’t alone, New Hampshire goes along with this holding, too. Furthermore, none of Defendant’s proffered cases support his position, and there is no Vermont case out there to support his position.

Conviction affirmed.

[Editor's note: this case was previously summarized, but sometimes said editor is an idiot and doesn't update the list properly.]