State v. Bolio

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-206


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Pamela E. Bolio                              June Term, 1992



 Edward J. Cashman, J.

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

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



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.    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 has 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). (FN1) 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, con-
           sidering 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, a person who commits aggravated
   assault acts in a more egregious manner than one who acts recklessly, in
   the sense that the person's level of intent has exceeded simply acting
   reckless.
        In sum, all of the elements of simple assault, a general intent crime,
   see State v. Sturgeon, 140 Vt. 240, 244, 436 A.2d 777, 779 (1981), were
   necessarily included in the offense of aggravated assault with a deadly
   weapon.  When the State established the higher culpable mental state of
   specific intent, it necessarily established the lower state of recklessness
   or negligence.  Bell v. State, 693 S.W.2d 434, 438 (Tex. Crim. App. 1985).
        Moreover, in this case, the evidence presented at trial was consistent
   with the theory that defendant acted with only a general intent.  She was
   agitated and upset by the thought that the victim had abused her child, and
   the evidence indicated that this information exacerbated an existing sense
   of anger and desperation.  There was expert testimony that defendant
   suffered from an adjustment-reaction disorder that might have contributed to
   her conduct.
        The State next argues that the error, if any, was harmless, because the
   jury would have acquitted defendant if it found that the State had not
   sustained its burden of proof on all of the elements of aggravated assault.
   This argument would effectively negate the right to jury instructions on a
   lesser-included offense in every case.  To argue that conviction proves the
   error was harmless is to miss the reason for the rule, which is to allow
   the jury to consider the evidence in the light of all of the alternative
   verdicts fairly presented, and not to have to elect between only a guilty
   verdict and an acquittal, where the evidence is susceptible of sustaining a
   lesser-included offense.
        As the United States Supreme Court said in Keeble v. United States, 412 U.S. 205, 212-13 (1973):
           Where one of the elements of the offense charged remains
           in doubt, but the defendant is plainly guilty of some
           offense, the jury is likely to resolve its doubts in
           favor of conviction.  In the case before us, for
           example, an intent to commit serious bodily injury is a
           necessary element of the crime with which petitioner was
           charged, but not of the crime of simple assault.  Since
           the nature of petitioner's intent was very much in dis-
           pute at trial, the jury could rationally have convicted
           him of simple assault if that option had been presented.
           But the jury was presented with only two options: con-
           victing the defendant of assault with intent to commit
           great bodily injury, or acquitting him outright.  We
           cannot say that the availability of a third option --
           convicting the defendant of simple assault -- could not
           have resulted in a different verdict.

        Finally, the State argues that the court's instruction on the
   definition of "recklessness," which clarified to the jury that recklessness
   and specific intent were not the same, rendered any error harmless.  The
   instruction at most clarified the distinction between the jury's two alter-
   natives: conviction of aggravated assault or acquittal.  The middle ground
   of simple assault, which was appropriate under our case law and V.R.Cr.P.
   31(c), as well as consistent with the evidence, was still unavailable to the
   jury as an option.  Only a proper instruction on the lesser-included offense
   of simple assault would have sufficed.  It should have been given.
        Reversed and remanded.


                                           FOR THE COURT:



                                           _______________________________
                                           Associate Justice



FN1.    V.R.Cr.P. 31(c) states:
          (c) Conviction of Lesser Offense.  The defendant may be found
     guilty of an offense necessarily included in the offense charged
     or of an attempt to commit either the offense charged or an
     offense necessarily included therein if the attempt is an offense.