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State v. Russo10/8/2004
given these facts, lesser-included offenses of aggravated assault. Defendant was charged with aggravated assault under 13 V.S.A. § 1024(a)(2): "A person is guilty of aggravated assault if he attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." Defense counsel apparently first suggested that simple assault under 13 V.S.A. § 1023(a)(1) should be charged as the lesser-included offense. The language of this subsection mirrors the aggravated assault definition without the requirement of deadly weapon use. It is different from a completed assault because the simple assault statute contains a lesser mental element than the aggravated assault statute. See State v. Bolio, 159 Vt. 250, 252, 617 A.2d 885, 886 (1992) (nothing that simple assault includes reckless conduct, whereas aggravated assault is an intentional conduct offense). Because the only difference in the offenses involves whether a deadly weapon was used, and there is no evidence in this case of an assault without a deadly weapon, the trial judge properly held that the jury could not convict defendant of simple assault without convicting him of aggravated assault. In these circumstances, the lesser-included offense instruction is inappropriate. See Alexander, 173 Vt. at 383-84, 795 A.2d at 1254; State v. Mercado, 166 Vt. 632, 632-33, 699 A.2d 50, 50 (1997) (mem.).
17. In response, defense counsel switched to a request that the court charge that simple assault under the alternative language of 13 V.S.A. § 1023(a)(3) was the proper lesser-included offense. That section reads: "A person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury." An offense is lesser to a greater offense only if it has no elements that are not necessary to conviction for the greater offense. State v. Williams, 154 Vt. 76, 82, 574 A.2d 1264, 1267 (1990). Defendant's reliance on the alternative elements of the simple assault statute run afoul of this language. Under this alternative, the prosecution must prove that defendant attempted to put the victim "in fear of imminent serious bodily injury." The aggravated assault statute does not contain this element. Accordingly, the court properly held that defendant was not entitled to a lesser-included offense instruction under this part of the simple assault statute.
18. Defendant fares no better in his argument that reckless endangerment is a lesser-included offense of aggravated assault. Although under the facts in evidence the State could have charged defendant with reckless endangerment, the offense of reckless endangerment is not composed of elements from the offense of aggravated assault. It is defined as follows:
A person who recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury shall be imprisoned for not more than one year or fined no more than $1,000.00 or both. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded, and whether or not the firearm actually was loaded.
13 V.S.A. § 1025. Thus, defendant was not entitled to a lesser-included offense instruction on reckless endangerment.
19. Defendant has shifted his argument here to the position that simple assault and reckless endangerment should have been submitted to the jury as lesser-related offenses. He argues that the issue was preserved because, although defense counsel labeled these offenses as lesser-included, the issue was fairly presented to the trial court. In making his argument, defendant relies upon State v. Corliss, 168 Vt. 333, 339, 721 A.2d 438, 443 (1998), where the defendant also
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