State v. Joseph

         

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-352

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Chittenden Circuit
                                  }
Francis Joseph                    }
                                  }          DOCKET NO. 1381-3-89CnCr


             In the above entitled cause the Clerk will enter:


     Defendant appeals from a jury conviction of aggravated assault in
violation of 13 V.S.A. { 1024(a)(1), which provides, in part, that a person
is guilty of aggravated assault if he causes serious bodily injury reck-
lessly "under circumstances manifesting an extreme indifference to the value
of human life."  The sole issue is whether the evidence, when viewed in a
light most favorable to the State, was sufficient for a reasonable jury to
conclude that defendant's actions manifested extreme indifference to the
value of human life.  See State v. Lupien, 143 Vt. 378, 381, 466 A.2d 1172,
1174 (1983).  Citing commentary to the Model Penal Code, defendant argues
that the quoted language has the same meaning whether it relates to an
assault statute or a murder statute.  Model Penal Code and Commentaries,
Part II { 211.1 at 189 (1980).  He further points out that at least one
jurisdiction has held that a defendant cannot be convicted of aggravated
manslaughter based on a showing of extreme indifference to the value of
human life unless the State shows that there was a "probability" that death
would result from the defendant's action.  See State v. Bowens, 108 N.J.
622, 638, 532 A.2d 215, 223 (1987).

     We decline to hold that a jury must find a "probability" of death
resulting in order for it to conclude that a defendant's conduct manifested
an extreme indifference to the value of human life, thereby satisfying the
intent requirement of the aggravated assault statute.  Even the commentary
to the Model Penal Code's murder statute does not require a particular
degree of likelihood of death in order for the trier of fact to find that a
defendant showed such extreme difference to life that he could be liable for
murder.  The key is that the trier of fact must be convinced that the
defendant showed such extreme indifference that the intent element of the
particular crime is satisfied.  See Model Penal Code, supra, { 210.2 at 22.
Thus, with regard to the instant statute, rather than focus on the probabi-
lity of death resulting, the trier of fact must determine whether the
"circumstances" of the attack demonstrate such a blatant disregard for life
that one could conclude beyond a reasonable doubt that the defendant
intended to inflict serious bodily injury on the victim.  Cf. State v.
Saucier, 128 N.H. 291, 297-98, 512 A.2d 1120, 1125 (1986) (circumstances
surrounding assault in which defendant held victim by the throat and threw
her against parked cars showed such extreme indifference to life that jury
could convict on charge of second degree assault); State v. Dodd, 503 A.2d 1302, 1303-04 (Me. 1986) (where the defendant taped the mouth, legs and arms
of a three-year-old girl and hung her upside down from a doorknob for ten
minutes, jury could have found that he showed an extreme indifference to
human life, since there was at least a "reasonable likelihood" that death
or serious bodily injury would occur).

     In the instant case, defendant resisted arrest and attempted to flee
from police officers.  One of the officers gave chase, and in the ensuing
struggle defendant struck the officer on the side of the head with such
force that she was knocked unconscious for seven or eight minutes.  It is
not entirely clear whether defendant struck the officer with his fist or
with an object he held in his fist.  In any case, after knocking her out,
defendant dragged her some fifteen feet and then piled heavy wooden pallets
on top of her while she was unconscious.  This was done so that the officer
would not be found by others, and it also hindered others from providing
medical attention to the officer.  The officer testified that, upon regain-
ing consciousness, she had difficulty breathing.  Further, as a result of
the blow to her head, and the struggle in general, her ear was damaged and
she sustained various other bodily injuries.  Considering these facts, a
reasonable jury could have concluded that defendant's conduct manifested an
extreme indifference to the value of human life.

     Affirmed.



                                   BY THE COURT:


                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice


                                   _______________________________________
                                   John A. Dooley, Associate Justice
[ ] Publish
                                   _______________________________________
[ ] Do Not Publish                 Denise R. Johnson, Associate Justice