2012 VT 71


State
v. Bourn (2011-161)
 
2012
VT 71
 
[Filed
31-Aug-2012]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2012 VT 71

 

No. 2011-161

 

State
  of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington Unit,


 


Criminal
  Division


 


 


Paul
  Bourn


March
  Term, 2012


 


 


 


 


David A. Howard, J.


 

Christina Rainville,
Bennington County Chief Deputy State’s Attorney, Bennington, for
  Plaintiff-Appellee.
 
William A. Nelson,
Middlebury, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley,
Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
SKOGLUND,
J.   Defendant
Paul Bourn was convicted in the superior court of two counts of aggravated
assault with a deadly weapon, 13 V.S.A. § 1024(a)(5), following an incident
where he pointed an unloaded muzzleloader toward two police officers who were
attempting to remove him from a home.  He appeals his convictions, arguing
first that the court committed reversible error by refusing to instruct the
jury that the charge of aggravated assault with a deadly weapon requires proof
of specific intent to threaten, and second, that such intent may be negated by
the defendant’s diminished capacity.  Holding that our aggravated assault
statute requires specific intent, we reverse.
¶ 2.            
Defendant, his brother,
and the homeowner were drinking and generally “hanging out” at the homeowner’s
residence in Bennington. According to the homeowner, at one point defendant
became “extremely agitated, very upset, just totally different.”  He began
arguing with his brother, and generally became “hysterical.”  Police were
dispatched to the residence, and two officers responded.  The
officers testified that the homeowner asked them to remove defendant from
inside the house.  When the officers entered the house, defendant
got up from a couch and walked out of the living area and down the hallway
towards the bathroom, where he stopped and stood partially in the room and
partially in the hallway.  The officers informed defendant that he needed
to leave the residence.  Defendant answered with a stream of
obscenities and stated that he was being “deployed for the military,” and that
he “had to go to war and. . . was going to die there.”  Defendant
is not, nor has he ever been, a member of the armed forces. 
¶ 3.            
After continuing verbal
outbursts, the officers informed defendant that he was under arrest and
proceeded down the hallway towards him.  In response to their advance,
defendant replied, “I have a gun down here.”  He then emerged into the
hallway holding a muzzleloader in his right hand by the forestock,[1] in front of the trigger guard, with the
muzzle pointing down at the floor.  Although not immediately apparent, the
muzzleloader lacked a primer and was not capable of firing.[2]  The officers drew their side
arms, and one officer said, “Show us your hands.”   Defendant,
facing the officers, raised the muzzle towards the ceiling in a continuous
arc.  In the course of this sweeping motion, the muzzle briefly pointed
down the hallway to where the officers were standing.  One officer
testified that defendant never leveled the gun at the officers. After a
confrontation where the officers employed pepper spray and batons, defendant
was handcuffed and placed under arrest.  
¶ 4.            
The State brought six
separate charges against defendant, including two counts of aggravated assault
in violation of 13 V.S.A. § 1024(a)(5) for actions against each arresting
officer.  At a jury trial in December 2010, he was acquitted of all
charges except for the two counts of aggravated assault.  He appeals his
convictions.    
¶ 5.            
To understand the
arguments on appeal, we must look back at what happened a year before
trial.  In December 2009, the State and defendant negotiated a plea
agreement where defendant would plead guilty to one count of aggravated assault
and one count of resisting arrest.  In return, the State would dismiss the
remaining four charges and cap the sentence recommendation at eight years, with
the defense free to argue for less.  The plea was presented to the trial
court.  During the plea colloquy regarding the agreed charge, to wit,
aggravated assault, 13 V.S.A. § 1024(a)(5) (“A person is guilty of aggravated
assault with a deadly weapon if the person is armed with a deadly weapon and
threatens to use the deadly weapon on another person”), defendant agreed that
he had held the rifle as described and that the police officers may have felt
threatened but maintained that he did not intend to threaten the
officers with his actions.  The judge stopped the colloquy, stating that
13 V.S.A. § 1024(a)(5) was a specific-intent crime.  The judge said:
“[t]here needs to be an intent to threaten.  It’s not a strict liability
offense. . . . Even if you don’t intend to carry out the threat, you need to
intend to threaten.”  Defendant eventually stated: “I feel he was
threatened when I brought the rifle up.”  The court allowed defendant to
enter his plea.
¶ 6.            
When defendant returned
to court for his sentencing hearing in May 2010, the question of defendant’s
intent arose again.  The court had reviewed the audio recording of the
earlier plea hearing and again expressed concern that defendant was not
admitting to the intent 

element of aggravated assault.  With defendant still not
admitting an intent to threaten, the judge allowed defendant to withdraw the
plea and go to trial.
¶ 7.            
A different judge presided
over the trial in December 2010.  At the jury-instruction conference,
defense counsel argued that aggravated assault was a specific-intent crime and
that defendant was entitled to a diminished capacity instruction in connection
with those charges.  The State argued to the contrary.  The court
agreed with the prosecution, finding the aggravated assault offense as charged
was a crime of general intent.  Accordingly, the court instructed the
jury: “The issue is whether [defendant] intended to do the actions or words
that are alleged to be threatening and did not act by accident or
mistake.  The State does not have to prove he specifically intended to
threaten the officers.”  The court also instructed the jury that
diminished capacity did not vitiate the aggravated assault charges:  
The issue of diminished capacity due to voluntary
intoxication has been raised by the evidence.  This applies to the State’s
burden to prove defendant’s intent to commit the offenses under counts three,
four and five.  It does not apply to counts one and two [i.e., the charges
of aggravated assault with a deadly weapon].  Evidence that he was under
the influence of intoxicants or affected by them may be relevant in determining
whether he had the mental capacity to form the intent necessary for counts
three, four and five.
 
¶ 8.            
The jury found defendant
guilty of the two counts of aggravated assault and not guilty of the other
charges.  On appeal, defendant contends that aggravated assault under 13
V.S.A. § 1024(a)(5) is a specific-intent crime, and to find defendant
guilty, the State must prove an intent to threaten.  Accordingly,
defendant claims he was entitled both to a jury instruction to that effect and
to raise a diminished capacity defense to the charges.  We hold that
aggravated assault is a specific-intent crime, and the verdict of the superior
court must be reversed for a new trial on those charges.
¶ 9.            
Section 1024 of Title 13
governs all forms of aggravated assault.  Subsection (a)(5) states that a
person is guilty of aggravated assault if the person “is armed with a deadly
weapon and threatens to use the deadly weapon on another person.”  The
State argues that, as the 

other four subsections in section (a) all contain language of
intent, the Legislature must have intended § 1024(a)(5) to be a
general-intent crime.  Compare 13 V.S.A. § 1024(a)(5) (containing no
explicit language requiring that the actor specifically intends to threaten the
other person), with id. § 1024(a)(1)-(4) (specifying mens rea
requirements such as “purposely,” “knowingly,” and “intentionally”). 
However, the lack of such a definitional component does not convert
§ 1024(a)(5) into a crime of general intent.
¶ 10.        
Previously, this Court
has recognized that intent may be implied where not expressly stated in a
statute.  See State v. Audette, 149 Vt. 218, 221, 543 A.2d 1315,
1316 (1988) (partially overruled on other grounds).  “When the Legislature
is silent as to the mens rea required for a particular offense, this Court will
not simply assume that the Legislature creates a strict liability offense, but
will try to determine the intent of the Legislature.”  State v. Francis,
151 Vt. 296, 307, 561 A.2d 392, 398 (1989).  Both Audette and Francis
relied on the United States Supreme Court’s decision in Morissette v. United
States, 342 U.S. 246, 263 (1952).   “[M]ere omission from [the
statute] of any mention of intent will not be construed as eliminating that
element from the crimes denounced.”  Id. at 263.
¶ 11.         We have long held as a general rule
that aggravated assault is a specific-intent crime.  State v. D’Amico,
136 Vt. 153, 156, 385 A.2d 1082, 1084 (1978).  As recently as this year,
we have consistently repeated this statement, though not specifically
addressing 13 V.S.A. § 1024(a)(5).  State v. Kolibas,  2012 VT
37, ¶ 17, __ Vt. __, __ A.3d __; State v. Russell, 2011 VT 36, ¶ 5, 189
Vt. 632, 22 A.3d 455 (mem.) (interpreting  § 1024(a)(2)).  Where we
have examined § 1024(a)(5), we have affirmatively declared that specific intent
is a required element.  State v. Kriskov, No. 2011-150, 2011
WL 7153911 at *1 (Vt. Dec. 21, 2011) (unpub. mem.), available at
 http://www.vermontjudiciary.org/d-upeo/upeo.aspx.  In Kriskov,
we stated that while the Legislature did not include an intent element within §
1024(a)(5), “[i]mplicit in this scheme is a necessary specific intent to
threaten.”  Id.  Though not precedential, Kriskov
provides support for our conclusion that § 1024(a)(5) is included in the
general rule that specific intent is a necessary element of the crime of
aggravated assault.  Id.
¶ 12.        
In State v. Sargent,
this Court read a kidnapping statute to include an element of intent, where the
statute lacked specific language regarding the requisite mens rea.  156
Vt. 463, 465, 594 A.2d 401, 402 (1991).  In Sargent, the jury
instructions charged that the defendant could be found guilty of this felony if
the prosecution proved that he knew or should have known his actions
would cause the physical confinement to the victim.  Id. at
464-65.  We reversed, finding this “should have known” objective standard
inappropriate for a felony charge that required a subjective inquiry into the
defendant’s mens rea.  Id. at 465.
¶ 13.        
Furthermore, were we to
construe § 1024(a)(5) as a general intent crime, as the State argues and
the trial judge instructed, two different statutes—one a misdemeanor, one a
felony—would govern the same conduct but result in different penalties. 
The crime of reckless endangerment of another person, defined under 13 V.S.A.
§ 1025, occurs when “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.”  This misdemeanor
charge carries a possible sentence of one year, a fine of not more than $1000,
or both.  13 V.S.A. § 1025.  The felony aggravated-assault
charge against the defendant carries a possible sentence of five years, a fine
of $5000, or both.  Id. § 1024(c).  Where two statutes
govern the same conduct and carry different penalties, there must be some
logical reason for one to carry the higher penalty.  It stands to reason
that because aggravated assault carries a higher penalty, it also requires a
higher standard of moral culpability, i.e., specific intent. 
¶ 14.        
As a direct consequence
of the erroneous ruling on intent, defendant was improperly denied his right to
assert a diminished capacity defense to the two aggravated assault
charges.  The court, defendant, and the State all agreed on the law of
diminished capacity: that defendant’s severe intoxication could negate a
requisite element of intent.  Diminished capacity 

 

serves to negate intent in crimes requiring proof of specific
intent.  State v. Joyce, 139 Vt. 638, 639-40, 433 A.2d 271, 272
(1981).  Because the aggravated assault counts were improperly construed
as crimes of general intent, this defense was not included in the jury charge
for these offenses. 
¶ 15.        
There is no question
that the level of defendant’s intoxication was sufficient to warrant an
instruction on diminished capacity, as evidenced by the court so charging on
each count that required an element of specific intent.  The trial court
found that the issue of defendant’s intoxication was “raised by the evidence”
and applied to counts three, four, and five.  Accordingly, the court
charged the jury to consider defendant’s diminished capacity on these
counts.  The State did not object.  It is worth noting that on every
count where this defense was available to defendant, the jury returned a
verdict of not guilty.  As 13 V.S.A. § 1024(a)(5) is a crime
requiring specific intent, this defense should have been included in the jury
charge.  It was not, and this was error.
¶ 16.        
“[O]ne of criminal law’s
most basic principles is that a person is not criminally liable for causing a
bad result if he or she did not have some culpable mental state with respect to
that result.”  Sargent, 156 Vt. at 465, 594 A.2d at 401 (quotations
and alterations omitted). “[A] person’s criminal liability for an act should be
proportioned to his or her moral culpability for that act.” State v.
Stanislaw, 153 Vt. 517, 525, 573 A.2d 286, 291 (1990) (quotations
omitted).  The objective inquiry charged at trial, requiring no subjective
moral culpability, does not comport with this proportional maxim.  To
remain distinct from the related misdemeanor, felony aggravated assault with a
deadly weapon requires greater culpability than reckless conduct.  
¶ 17.        
We hold that a
conviction for aggravated assault under 13 V.S.A. § 1024(a)(5) requires
that the actor subjectively intend to threaten another person with a deadly
weapon.  Accordingly, the accused is entitled to assert appropriate defenses
that rebut the State’s arguments on this point.  Because the jury charge
at defendant’s trial was not consistent with our holding, he is entitled to a
new trial on these counts.
Reversed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
The forestock on a muzzleloader is located in front of the trigger guard, on
the underside of the barrel.  By holding the muzzleloader in this way, defendant
was not capable of pulling the trigger without repositioning his grip on the
weapon.
 


[2]  Although the weapon was incapable of
firing at all times during the incident, it is still considered a deadly weapon
for purposes of the aggravated assault statute.  See State v. Longley,
2007 VT 101, ¶ 8, 182 Vt. 452, 939 A.2d 1028 (“There is no requirement that a
firearm be loaded or operable to be a ‘deadly weapon.’ ”).
 



