|This is not the same Carter.|
State v. Carter
Lawyers learn very early in their careers that words need to mean what they are supposed to mean, and if there’s ambiguity everything stops. Legal writing tends to be short and to the point. Sentences are subject-verb, and that’s about it. That way the writer and the reader know what the words mean.
There can be a bit of a collision when a statute isn’t written clearly, and it can lead later to some legal word wrangling. The folks under the golden dome say, “hey, we need a law about [insert topic here] and this is what we want it to do.” They write something and they have their legislative counsel look at it and as the sausage gets made, things get added or taken out, and eventually they get to a statute that seems to achieve the goal. This can be a problem when the new statute doesn’t seem to square with another one that already exists.
That’s where Mr. Carter (not this Mr. Carter, a different one) had a little bit of a problem. Well, he thought it was a problem. SCOV didn’t agree with his position and affirmed his conviction.
Mr. Carter and his ladyfriend were living in a tent in Orleans County in the summer of 2015. She called 911 one night to report that Mr. Carter had assaulted her. The police arrived and found that she was red around her neck and had an aging bruise around one of her eyes. She told them he had choked her, and earlier in the week had hit her eye. They arrested Mr. Carter, who was charged with first degree aggravated domestic assault and second degree aggravated domestic assault. The latter was for recklessly causing bodily injury to a family or household member, and for having previously been convicted of a domestic assault. This is not the subject of the case here.
The first degree charge has the following elements: a) Defendant; b) Recklessly; c) Caused a family or household member; d) Serious bodily injury.
The legislature, in writing the first degree aggravated domestic assault statute, defined “serious bodily injury” as an injury that creates any of the following: a) a substantial risk of death; b) a substantial loss or impairment of the function of any bodily member or organ; c) a substantial impairment of health; or d) substantial disfigurement. The focus here was clearly meant to target serious injuries: broken bones, disfigurement, loss of a limb – really serious stuff. “Serious bodily injury” also includes strangulation, which is separately defined as “intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.” Again, really serious.
The allegation here was that Mr. Carter put his hands around the complainant’s neck and applied pressure, and in doing so, she felt dizzy and began to lose consciousness because she couldn’t breathe.
As the trial got started, the State said it was choosing to charge the case as “recklessly caused serious bodily injury” and left it at that. The State didn’t say it was alleging strangulation, although the facts seemed to point to a strangulation case. The State also asked the judge to add a lesser-included offense of misdemeanor domestic assault in the jury instructions. This means that if the jury could not conclude that Mr. Carter recklessly caused serious bodily injury, that the jury could consider the lesser offense whose elements are “recklessly caused bodily injury.” The jury considered that and ultimately found Mr. Carter guilty of misdemeanor domestic assault. He appealed.
On appeal, Mr. Carter had sort of a complicated argument having to do with the language of the statue. His argument was that domestic assault, in this situation, was actually not a lesser-included offense of first degree aggravated domestic assault.
The problem here was with how the jury was charged. The judge read the definition of serious bodily injury as I noted above. Even though the State did not elect to charge the case as a strangulation case, the judge read the definition of strangulation as an “example” of serious bodily injury. The problem is that the way the statute is written, “strangulation” is serious bodily injury as a matter of law, and the jury need not find that there was serious bodily injury based on one of the other four definitions. Because it’s different, and it’s written differently, the lesser element of “bodily injury” doesn’t fit within the element of strangulation. Therefore, if the jury was charged on strangulation, which it sort of was, it should not also have been charged on misdemeanor domestic assault.
SCOV doesn’t agree and affirms the conviction below for three reasons.
First, even though the trial judge added the language about the strangulation – which SCOV thinks might have been confusing – it wasn’t an error. Strangulation is an additional way in which a first degree aggravated domestic assault could be committed. It’s not the only way. The other statutory language about the different ways in which serious bodily injury could be caused was included in the jury charge. SCOV thinks this is just fine.
Second, the court explained the four different ways other than strangulation in which someone could be convicted of a first degree aggravated domestic assault. Since the state didn’t actually charge the case as a strangulation case, the court instructed the jury that it had to find one of the four different definitions of serious bodily injury.
Third, Mr. Carter made an argument regarding different mental states being required for the different offenses, and SCOV doesn’t agree with that, either. The mental element required here is one of recklessness. That means that the defendant acted in such a way that he consciously disregarded a risk that his actions would cause injury to someone else. This is considered a lower mental element than, say, willful conduct. If someone acts willfully, he or she is setting out with a planned purpose to do something.
Here’s a real life reckless act: standing 10 feet away from a group of people and throwing rocks in the direction of that group. Sure, the plan isn’t to hit someone, but by throwing the rocks in their general direction, the person is acting while disregarding the risk that one of the people might get hit with a rock and get hurt. A similar willful act would be if the person picked up a rock and declared, “I’m gonna go hit Jimmy with this rock,” marched over to Jimmy, and hit him with the rock.
The argument here is that strangulation doesn’t fit because it necessarily contains the mental element “intentionally.” If a case is charged as a strangulation case, the state has to prove that the defendant intentionally cut off the other person’s air supply or slowed circulation. This is at odds with the lesser charged element of “recklessly,” which is how the jury was charged.
SCOV disagrees with this argument too. Since the other four methods of serious bodily injury were properly instructed, and this was never actually charged as a strangulation case, the differences in the mental elements never really come into play. Also, since recklessness is less than an intentional act, SCOV finds that the reckless act can be included where there is a greater intentional act charged.