State v. Petruccelli

Annotate this Case
State v. Petruccelli (98-106); 170 Vt. 51; 743 A.2d 1062

[Filed 24-Sep-1999]


       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. 98-106


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.		                                 District Court of Vermont,
                                                 Unit No. 1, Windham Circuit

Michael B. Petruccelli	                         January Term, 1999


Robert Grussing III, J.


       William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for Plaintiff-Appellee.

       Peter F. Langrock and Kevin E. Brown of Langrock, Sperry & Wool,
  Middlebury, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Following a bench trial in Windham District Court,
  defendant Michael  Petruccelli was convicted of kidnapping, aggravated
  assault, custodial interference, and two charges  of simple assault on an
  officer.  On appeal, defendant argues that (1) as joint guardian of his
  child,  he could not be guilty of custodial interference or kidnapping; (2)
  evidence supporting assault  charges should have been suppressed as
  stemming from an unconstitutional warrantless entry of his  home; and (3)
  the state failed to prove the correct mens rea standard for the aggravated
  assault  charge.  We vacate the custodial interference conviction, and
  affirm the four remaining convictions. 

 

       The trial court found that on October 23, 1994, police were called to
  the residence of  defendant Michael Petruccelli and his girlfriend, Heidi
  Dlubac, to investigate a domestic disturbance.  Two officers found
  defendant outside his condominium unit and encountered Dlubac walking along 
  a roadway nearby.  Dlubac told officers that she and defendant had been
  fighting over defendant's  contacts with his ex-girlfriend.  The
  disagreement had escalated to a physical altercation.  Dlubac  had told
  defendant that she wanted to leave him, and take the couple's five-week old
  baby, Kristen,  with her.  Outside the condominium, the two had argued over
  who would take the baby.  Dlubac  indicated to the officers that she was
  tired of being abused by defendant and wanted to leave, but  defendant
  would not allow her to take the baby.  She returned to the condominium with
  the officers,  and entered the residence to attend to the baby.  An officer
  saw defendant in the front yard and  informed him that, as the couple was
  unmarried, Dlubac had the right to take the baby with her, and  defendant
  had no right to interfere, even though he was the natural father of the
  child.  Defendant  disagreed and threatened to kill Dlubac or anyone else
  who tried to take the baby away, and then kill  himself.  Defendant became
  increasingly agitated and stated he did not care if Dlubac left, but would 
  prevent anyone from taking the child.  He then went inside the condominium. 
  A German Shepard  blocked entry to the condominium.  A posted sign read
  "guard dog on duty."

       The police remained outside and conversed with Dlubac through a
  bedroom window.  She  reported that defendant was loading clips into a .22
  caliber rifle.  One officer recommended that  while defendant was in the
  next room, Dlubac get the baby and pass her through the window.   Dlubac
  responded that she could not, as she feared defendant's reaction.  She
  suggested that the  officers leave and that she would escape with Kristen
  at a later time.  Believing that there would be  a dangerous confrontation
  between the defendant and Dlubac if they left, officers continued to 

 

  monitor the situation.  Through the window, officers were able to hear
  Dlubac tell defendant to stop  threatening her.

       Officers proceeded to the entrance of the condominium.  Dlubac's 
  mother arrived and tried  to persuade defendant to allow Dlubac to leave
  with the baby, but was unsuccessful.  At one point,  Dlubac opened the
  front door with the baby in her arms, but defendant came from behind her,
  seized  the baby, and attempted to shut the door.  An officer put his foot
  in the doorway to hold it open, but  defendant struggled and closed the
  door.  After warning Dlubac, officers attempted to forcibly enter.  As the
  officers entered, the dog remained in the living area in a crouched
  position baring its teeth  and growling at the officers.  Officers sprayed
  the dog with pepper spray, and Dlubac pulled the dog  into the bathroom and
  left the condominium.  As officers entered, defendant went into a back 
  bedroom with the baby and closed the door.    

       Positioned on either side of the bedroom door, officers with weapons
  drawn reminded  defendant that no one had yet been hurt, and insisted he
  surrender.  Defendant responded with  obscenities and ordered the officers
  to leave.  Officers heard the action of a firearm, and defendant  yelled,
  "I'm locked and loaded and I'm coming out."  He opened the door and slowly
  emerged with  the baby in one arm and the rifle at a forty-five degree
  angle toward the ceiling in the other.  One  officer grasped the rifle, and
  a struggle ensued, during which a shot was discharged into the floor.  An
  officer seized the gun, while other officers continued to grapple with
  defendant, who retreated  into the bedroom with the baby.  Defendant
  released the baby onto the bed, and an officer carried  the baby out of the
  room to safety.  Defendant continued to resist against three officers, two
  of whom  were cut during the struggle.  After defendant scraped his teeth
  against the head of another officer,  he was sprayed with pepper spray, but
  this had no noticeable effect on him.  Defendant and officers 

 

  fell onto the bed, where defendant wrapped his arm around the neck of
  Officer Merrigan and secured  a choke hold.  When Officer Merrigan called
  for help from another officer standing nearby,  defendant tightened his
  grip until Officer Merrigan was unable to breath or speak, and his vision 
  began to fade.  Another officer attempted to free Officer Merrigan by
  pulling on defendant's head  and arm, but was unsuccessful.  The officers
  threatened to strike defendant, and as one officer left  the room to obtain
  a baton, defendant loosened his grip and was handcuffed.  Officer Merrigan 
  sustained several cuts during the struggle and suffered a sore neck.  

       Defendant was originally charged with eight crimes, only five of which
  are relevant to this  appeal.  Prior to trial, the State dismissed an
  unlawful restraint charge and one of three charges of  simple assault; upon
  motion for acquittal at trial, defendant was acquitted of reckless
  endangerment.  After a bench trial in district court, defendant was found
  guilty of kidnapping, custodial interference,  aggravated assault, and two
  charges of simple assault on a police officer.  He was sentenced to four-
  to-six years for kidnapping, and up to two years for custodial interference
  to run concurrently with  the kidnapping sentence.  Consecutive to the
  above sentence, defendant was also sentenced to serve  concurrently
  two-to-three years for the aggravated assault conviction and up to a year
  each for the  simple assault convictions.  

       Defendant appeals the denial of his motion for acquittal on the
  custodial interference and  kidnapping charges, arguing that as lawful
  guardian of Kristen, he could not, as a matter of law, be  convicted of
  those crimes.  Defendant renews his argument, first presented during a
  pretrial motion  to suppress, that the police officers' warrantless entry
  into his home violated both the Fourth  Amendment of the United States
  Constitution and Article Eleven of the Vermont Constitution.   Defendant
  claims that because the evidence obtained once the officers entered the
  condominium is 

 

  the fruit of a warrantless entry and therefore should have been suppressed,
  the district court erred in  denying defendant's motion for acquittal on
  the aggravated and simple assault charges.  On the  aggravated assault
  charge, defendant alternatively argues that the court erred in denying his
  motion  for acquittal because the State failed to prove defendant acted
  with the requisite intent to sustain a  conviction.(FN1)

       Prior to trial and at the close of the State's evidence, defendant
  moved to dismiss the  kidnapping and custodial interference charges on the
  grounds that he had established the requisite  "custodial, personal, or
  financial relationships with [the baby] to have acquired the status of her 
  lawful custodian."  Defendant reasserts the argument on appeal contending
  that as a biological father  who has accepted the responsibilities of
  parenthood, he is "constitutionally imbued" with the de facto  status of a
  father of a child born in wedlock.  See In re S.B.L., 150 Vt. 294, 304, 553 A.2d 1078,  1086 (1988).  If defendant is found to possess the same status
  as the father of a child born in  wedlock, defendant argues he "necessarily
  qualifies" as a "lawful custodian" of the baby, pursuant  to 13 V.S.A. §
  2404(1) (lawful custodian is a "parent, guardian, or other person
  responsible by  authority of law for the care, custody, or control of
  another").  A determination of defendant's  qualification to be the baby's
  lawful guardian is critical because according to defendant's theory of 
  defense to the kidnapping and custodial interference charges, a lawful
  custodian cannot be convicted 

 

  of either crime under the facts of this case. (FN2)

       We disagree that the issue of defendant's criminal culpability for the
  crimes of kidnapping  and custodial interference turn on his status as
  lawful custodian of the baby.  We conclude that the  facts proved beyond a
  reasonable doubt in this case are legally sufficient to support defendant's 
  conviction for kidnapping regardless of whether he was the baby's lawful
  custodian.  We further  conclude that those facts are legally insufficient
  to sustain a conviction for custodial interference - irrespective of
  whether defendant was the baby's lawful custodian - because the trial court
  erred in  construing the custodial interference statute.

                               I.  Kidnapping


       Defendant was convicted of kidnapping pursuant to 13 V.S.A. §
  2405(a)(1)(c), which states  in pertinent part: "A person commits the crime
  of kidnapping if the person (1) knowingly restrains  another person with
  intent to: (C) inflict bodily injury upon the restrained person or place
  the  restrained person or a third person in fear that any person will be
  subjected to bodily injury."  On  appeal, we review the denial of the
  motion for acquittal pursuant to V.R.Cr.P. 29 to determine  "whether,
  taking the evidence in the light most favorable to the state and excluding
  modifying  evidence, the state has produced evidence fairly and reasonably
  tending to show the defendant guilty  beyond a reasonable doubt."  State v.
  Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995).

       The State's information charging the crime of kidnapping alleged that
  "at W. Dover, Vt., [on] 

 

  10/23/94, [defendant] did knowingly restrain another person, to wit,
  Kristen Petruccelli, with intent  to place Robert Edwards in fear that a
  person, to wit, Heidi Dlubac, would be subjected to bodily  injury, in
  violation of 13 V.S.A. § 2405(a)(1)(c)."  After a bench trial, the Windham
  District Court  concluded that the State had proven beyond a reasonable
  doubt that defendant acted knowingly to  restrain Kristen Petruccelli with
  the intent to place Police Chief Edwards in fear that Heidi Dlubac  would
  be subjected to bodily injury.  The court found that the State proved
  beyond a reasonable  doubt that defendant restricted the child from the
  time he took the child into his possession until the  time control of the
  child was taken from him by the officers, a period of at least one and
  one-half  hours.  The restriction of movement within the condominium unit
  for that period of time thus  satisfied, in the court's view, the statutory
  definition of "restrain."  See 13 V.S.A. § 2404(3)(c)  ("confining the
  restrained person for a substantial period . . . in the place where the
  restriction  commences").  

       Defendant does not take exception to the court's finding that
  defendant confined his daughter  for a period sufficient to meet the
  statutory definition of "restrain," but asserts that the court erred  in
  determining that the restraint was "without consent."  Defendant correctly
  asserts that "restrain"  as defined in the kidnapping statute requires that
  the substantial restriction of the movement of  another person be "without
  the person's consent or other lawful authority."  Id. § 2404(3).  A
  restraint  is "without consent" if it is accomplished "(A) by acquiescence
  of the restrained person, if the  restrained person is under 16 years of
  age and the restrained person's lawful custodian has not  acquiesced in the
  movement or confinement; or (B) by force, threat or deception."  Id. §
  2404(4)  (emphasis added).  

       Contrary to defendant's claim, the issue critical to the kidnapping
  conviction is not whether 

 

  defendant was the baby's "lawful custodian."  The most salient inquiry is
  whether the trial court  correctly decided that the State proved beyond a
  reasonable doubt that restraint of the victim was  accomplished "without
  consent."  Defendant maintains that as "lawful custodian" he could
  acquiesce  in the confinement of his daughter.   See id. § 2404(4)(A).   We
  agree, unless the restraint was  accomplished "by force, threat or
  deception."  Id. § 2404(B). 

     [T]he applicability of [the crime of kidnapping] to a case where the 
     abduction of a child is by a parent should not turn on the interference 
     or noninterference of the parent with formal custody arrangements. 
     A proper kidnapping prosecution can be made out even though the 
     abducting parent is fully entitled to legal custody of the child.  Such 
     a case will turn on the presence of "force, threat or deception" 
     together with the remaining elements of the offense . . . .

  Model Penal Code and Commentaries § 212.4 comment at 255 (1980).

       Although defendant would have us analyze "without consent" by
  reference only to (A)  rather than (B) of § 2404(4), the trial court
  determined that the "without consent" element of restraint  was
  accomplished by force and threat.  Defendant offers no persuasive basis to
  distinguish State v.  Washington, 166 Vt. 601, 691 A.2d 583 (1997) where,
  under similar facts we declined to consider  the defendant's argument that
  as the child's father, he had a right to "acquiesce" in the child's 
  restraint.   We upheld the conviction based on an analysis of § 2404(4),
  and whether there was  sufficient evidence of force, threat or deception. 
  There, as here, there was "forcible confinement of  the victim for 30 or
  more minutes during the standoff with the police."  Washington, 166 Vt. at
  601,  691 A.2d  at 584.  There, as here, the "restraint" was not based on
  the time defendant physically held  the baby "but on the period when he
  forcibly detained the child to keep the police at bay." (FN3) Id.  In 

 

  Washington, as in the case before us, the defendant contended that his
  threats and use of force were  not directed at the child.  As we noted in
  Washington, "[n]othing in the statute . . . requires that the  threats be
  directed at, or understood by, the victim.  The victim is no less
  restrained when the  confinement is accomplished by threats against another
  . . . ."  Id. at 602, 691 A.2d  at 585.

       Because we conclude that the requisites of § 2404(B) are met, it is
  unnecessary to consider  defendant's claim that he had the lawful authority
  to "acquiesce" in the restraint.  We note again, as  we did in Washington,
  that cases from other jurisdictions have generally rejected the argument
  that  a parent may not be held criminally liable for kidnapping.  See id.
  (citing cases).

                         II.  Custodial Interference

       The information with respect to the custodial interference charge
  alleged that "on the twenty-third day of October 1994, [the defendant] did
  knowingly and without legal right to do so, keep a  child, to wit, Kristen
  Petruccelli, from her lawful custodian, to wit, Heidi Dlubac, in violation
  of 13  V.S.A. § 2451."  As with the kidnapping charge, defendant asserts
  that the trial court's failure to  consider him the "lawful custodian" of
  the child with respect to the custodial interference charge  erroneously
  deprived him of an absolute defense to criminal liability.  We again reject
  defendant's  theory that a finding that he was the child's lawful custodian
  would provide a safe harbor from  criminal prosecution.  Modern custodial
  interference statutes were intended to respond to the  increasing
  occurrence of parental abduction of children as a means to settle a custody
  dispute or to  permanently alter custody.  See Judges Guide to Criminal
  Parental Kidnapping Cases, 8 Juvenile &  Family Court Journal 1-3 (1997). 
  We agree with the view that "[t]he crime of custodial interference 

 

  was designed to protect any custodian from deprivation of his or her
  custody rights - even if that  deprivation results from the actions of a
  person who also has a right to physical custody of the child."  Strother v.
  State, 891 P.2d 214, 220-21 (Alaska 1995).

       In reviewing the sufficiency of the evidence necessary to sustain a
  conviction for custodial  interference in this case, we look not to
  defendant's assertion that he is the child's "lawful custodian" - which
  for purpose of our analysis we will assume arguendo - but to defendant's
  conduct in relation  to the elements of the crime.  See Strother, 891 P.2d 
  at 220 ("The crime [of custodial interference]  does not focus on the legal
  status of the defendant, but rather focuses on the defendant's actions, the 
  effect of defendant's actions, and the intent with which those actions were
  performed.").

       The elements of the offense of custodial interference include "(1) an
  intentional (2) taking,  enticing away, keeping, or withholding which (3)
  unlawfully deprives the custodian of custody."  State v. Doyen, 165 Vt. 43,
  50, 676 A.2d 345, 348 (1996).  For the trial court to find defendant 
  guilty of custodial interference on the facts proved at trial, it was
  necessary, as the trial court noted,  to give the word "keep" a "broad
  interpretation."  The  trial court interpreted "to keep" to mean "to 
  prevent the legal custodian from exercising physical control over the
  child."  That definition is overly  broad and inconsistent with an
  essential element of custodial interference: unlawfully depriving the 
  custodian of custody of the child. Cf. State v. Edmisten, 674 S.W.2d 576,
  577 (Mo. Ct. App. 1984)  (explaining that defendant's construction of word
  "take" in interference with custody statute would  "blatantly frustrate"
  statute's purpose to protect court-ordered custody against unlawful
  interference).

       The trial court's interpretation of the reach of the custodial
  interference statute is particularly  problematic in this case where the
  State chose to charge kidnapping and custodial interference on  the same
  set of facts.  While in some cases it may be appropriate to prosecute both
  for kidnapping 

 

  and custodial interference, see, e.g.,  People v. Campos, 182 Cal. Rptr. 698 (Ct. App. 1982); People  v. Metcalf, 926 P.2d 133 (Colo. Ct. App.
  1996), the enactment of Vermont's custodial interference  statute was
  intended to create criminal liability for parental abductions of children
  that were evading  prosecution under the kidnapping statute.  See Hearing
  on H. 724 before the House Judiciary  Committee, January 23, 1980, at 35
  (statement of Rep. Ketcham).  Kidnapping involves restraint  without lawful
  authority with the commission of some other act, such as a demand for
  ransom, use  of the restrained person as a shield, or the placement of a
  person in fear that any person will be  subjected to bodily injury.  See 13
  V.S.A. § 2405(a)(1).  The penalty for kidnapping is severe - a  maximum
  sentence of life imprisonment and fine of $50,000.  See id.

       Custodial interference, by comparison, generally occurs when a parent
  takes his or her child,  or fails to return the child following a
  court-ordered visitation period, in a manner that prevents the  other
  custodial parent from having contact with the child.  See, e.g., State v.
  Doyen, 165 Vt. 43, 53,  676 A.2d 345, 350   (1996) (father properly charged
  with custodial interference for leaving state with  child and failing to
  return child to mother in Vermont at end of visitation period established
  by court  order).  In most states, custodial interference is a felony only
  if the child is removed from the state  for a protracted period of time. 
  See, e.g., N.H. Rev. Stat. Ann. § 633:4 (19xx); Del. Code Ann., tit.  11 §
  785 (Supp. 1984); see also C. Blakesley, Child Custody - Jurisdiction and
  Procedure, 35 Emory  L.J. 291, 361, n. 382 (1986).  

       In the present case, defendant neither failed to comply with a
  court-ordered custody  arrangement nor absconded with the child.  His
  restraint of Kristen was secured by a use of force in  the couple's home,
  which is encompassed by the kidnapping statute, not the custodial
  interference  statute.  The threats and use of force, which the trial court
  found to have prevented the mother from 

 

  "exercising physical control over the child," are precisely those acts
  which the State relied upon to  prove the crime of kidnapping.  Defendant
  did not evade prosecution under the kidnapping statute;  the State proved
  that defendant knowingly restrained Kristen Petruccelli with the intent to
  place  Officer Edwards in fear that Dlubac would be subjected to bodily
  injury in violation of 13 V.S.A.  § 2405(a)(1)(C).  The State, however, did
  not prove defendant intentionally kept Kristen Petruccelli  to unlawfully
  deprive Heidi Dlubac of custody within the meaning of the custodial
  interference  statute.  We therefore vacate the custodial interference
  conviction. See State v. Ward, 151 Vt. 448,  452, 562 A.2d 1040, 1042
  (1989) (fundamental error so detrimental to defendant's rights as to 
  constitute plain error may be addressed even though neither party nor trial
  court discerned nature of  defect.)

                 III. Warrantless Entry of Defendant's Home


       Defendant argues next that the police officer's warrantless entry into
  his home violated the  Fourth Amendment of the United States Constitution
  and Article Eleven of the Vermont  Constitution.  Absent a valid warrant,
  police intrusion of the home is justified only when the  government
  demonstrates the presence of "exigent circumstances that overcome the
  presumption of  unreasonableness that attaches to all warrantless home
  entries."  Welsh v. Wisconsin, 466 U.S. 740,  750 (1983);  see also United
  States v. Alexander, 923 F.Supp 617, 622 (D. Vt. 1996) ("The  Government
  bears the burden of proving the existence of such an exigency to justify
  warrantless  searches.").

       We consider the totality of the circumstances when determining whether
  exigent  circumstances are present sufficient to justify a warrantless
  entry into the home. See State v.  Girouard, 135 Vt. 123, 131, 373 A.2d 836, 842 (1977).  We are further guided by the six factors set 

 

  forth in Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en
  banc).  See United  States v. Gordils, 982 F.2d 64, 69 (2d Cir. 1991)
  (adopting the Dorman factors for the Second  Circuit).  We consider
  whether:  (1) a grave offense, particularly a crime of violence, is
  involved;  (2) the suspect "is reasonably believed to be armed"; (3) police
  had "a clear showing of probable  cause . . . to believe the suspect
  committed the crime"; (4) police had "strong reason to believe that  the
  suspect is in the premises being entered"; (5) there is "a likelihood that
  the suspect will escape  if not swiftly apprehended"; and (6) the entry was
  made peaceably.  Id.

       These factors are not exclusive, however.  In United States v.
  Alexander, 923 F.Supp at 623,  the court observed that the factors used to
  determine exigency are illustrative, not determinative, and  "there may be
  circumstances in which the presence of one factor alone can justify a
  warrantless  entry."  This is such a case.  Police encountered defendant in
  front of his condominium, having been  called there to investigate a
  domestic disturbance.  At the point at which officers decided the 
  circumstances required warrantless entry into the condominium, defendant
  was inside with Dlubac  and the baby and had threatened to kill Dlubac or
  anyone else who tried to take the baby.  Through  a window, officers had
  heard Dlubac tell defendant to stop threatening her.  Defendant had
  physical  control over the baby and, while in an extremely agitated state,
  was carrying a loaded .22 caliber  rifle.  Although several of the Dorman
  factors assessing the constitutionality of warrantless entry are  also
  present, defendant's threats of violence and the means to carry out the
  threats presented  sufficiently exigent circumstances for a warrantless
  entry.  

       Defendant also argues the warrantless entry of his home violated
  Article Eleven of the  Vermont Constitution, which may offer protection
  against unreasonable search and seizure beyond  that of the Fourth
  Amendment.  See State v. Sawa, 159 Vt. 75, 84, 616 A.2d 774, 779 (1992).  

 

  Warrantless searches are permitted only in those extraordinary
  circumstances "which make the  warrant and probable-cause requirement
  impractical,"  State v. Welch 160 Vt. 70, 78, 624 A.2d 1105, 1110 (1992). 
  Exceptions to the warrant requirement "must be factually and narrowly tied
  to  exigent circumstances and reasonable expectations of privacy."  Sawa,
  159 Vt. at 87, 616 A.2d  at  781.   Here, the occasion for arrest arose
  while police were already at the scene, where they heard  defendant
  threaten to kill Dlubac and abscond with the baby.  The immediate threat of
  danger to  Dlubac, considered in light of the substantial time it would
  have taken to prepare the warrant  application and affidavits, locate a
  magistrate judge on Sunday, and drive to obtain the warrant,  made
  obtaining a warrant impractical.  We affirm the trial court's conclusion
  that the officers did not  violate defendant's federal or state
  constitutional rights when they entered the house without a  warrant, and
  did not err by refusing to suppress evidence derived therefrom, nor by
  denying the  motion for acquittal on the three assault charges.

                IV.  Mens Rea Standard for Aggravated Assault

       Defendant argues next that the trial court erred in denying his motion
  for judgment of  acquittal on the aggravated assault charge because "a
  person cannot recklessly attempt to commit  a crime" or, in the
  alternative, the State failed to produce sufficient evidence of
  recklessness to  establish defendant's intent to commit the crime.  

       Defendant was charged with violation of subsection (a)(1) of the
  aggravated assault statute,  which reads in pertinent part: "[a] person is
  guilty of aggravated assault if he:  (1) attempts to cause  serious bodily
  injury to another, or causes such injury purposely, knowingly, or
  recklessly under  circumstances manifesting extreme indifference to the
  value of human life."  13 V.S.A. § 1024(a)(1). 

       In determining that the State had proved beyond a reasonable doubt
  defendant's culpability 
 
 

  for aggravated assault, the trial court found:
    
     The evidence ... shows clearly that the Defendant's conduct, applying 
     the force that he did, and continuing that to the extent that Officer 
     Merrigan was unable to breathe, see or speak convinces the Court the 
     State has met its burden of proof that the conduct of the Defendant  
     created a substantial risk of death.  The State, in fact, has proven the
     causing of serious bodily injury as that is defined and gone beyond  
     proof merely of an attempt to do so.

       In light of the trial court's finding that the State proved the
  completed crime of aggravated  assault rather than attempted aggravated
  assault, we fail to see the relevance of defendant's claim that  one cannot
  be convicted of "reckless attempt."  A person who causes serious bodily
  injury  "recklessly under circumstance manifesting extreme indifference to
  the value of human life" cannot  be distinguished from a person who causes
  injury "purposely" or "knowingly."  State v. LaClair, 161  Vt. 585, 587,
  635 A.2d 1202, 1204 (1993).  While it is true that the State's legal theory
  of its  prosecution of defendant for aggravated assault was that
  defendant's culpability would be  demonstrated by evidence of his attempt
  to cause bodily injury rather than recklessly causing such  injury,
  defendant suffered no prejudice since "[t]he attempted commission of a
  criminal offense  involves the same mental intent as would be required in
  the actual commission of that offense."   State v. Dennis, 151 Vt. 223,
  224, 559 A.2d __, __ (1989).  Defendant was charged with aggravated 
  assault, and "it is to that crime one must look in identifying the kind of
  intent required."  Id.  

       Nor are we persuaded by defendant's alternative argument that
  regardless of whether the  appropriate mens rea standard of § 1024 includes
  recklessness, the evidence was insufficient to  establish that defendant
  acted with the intent to commit aggravated assault.  Both defendant's words 
  and conduct demonstrate his decided objective to, at least, cause
  substantial bodily harm to Officer 

 

  Merrigan.  Defendant repeatedly expressed his intent to kill anyone who
  interfered with his control  of Kristen, and confronted officers with a
  loaded rifle.  As defendant choked him, Officer Merrigan  signaled to the
  other officers that he could not breathe.  Defendant then tightened his
  grip such that  Officer Merrigan's vision began to fade.  Not until
  officers threatened to strike defendant with a  baton did he release the
  officer.  

       The State has the burden of proving that "defendant acted with the
  conscious object of  causing serious bodily injury or that he acted under
  circumstances where he was practically certain  that his conduct would
  cause serious bodily injury."  State v. Blakeney, 137 Vt. 495, 501, 408 A.2d 636, 640 (1979).  Given the facts and circumstances prior to the
  choking incident, and assuming  defendant intended the natural and probable
  result of his actions, the state's evidence is sufficient to  fairly and
  reasonably support a finding of guilt beyond a reasonable doubt.  See State
  v. Sage, 161  Vt. 633, 635, 641 A.2d 115, 116 (1994) (standard of review on
  appeal regarding sufficiency of the  evidence is whether the evidence, when
  viewed in a light most favorable to the State and excluding  any modifying
  evidence, is sufficient to fairly and reasonably support a finding of guilt
  beyond a  reasonable doubt).


       Judgment of acquittal for custodial interference entered.  Judgment
  affirmed in all other  respects.


   
                                       FOR THE COURT:




                                       _______________________________________
                                       Chief Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Defendant argues that portions of the State's brief to this Court
  should be stricken from the  record because it improperly cites to
  pre-trial transcripts for support of the trial court decision.   Although
  the "statement of the facts" section of the State's brief cites to
  transcripts of the pre-trial  hearing on defendant's motions to dismiss and
  to suppress evidence, the factual propositions  referenced are mirrored in
  the trial court's findings of fact.  As we rely on the findings of fact
  from  the trial court, defendant's motion to strike portions of the State's
  brief from the appellate record is denied.  

FN2.   Although defendant argues that the lawful custodian analysis is
  relevant to both the kidnapping  and custodial interference convictions, he
  most vigorously advances his legal theory with respect to  the kidnapping
  charge.  The court imposed the longest sentence (two-to-six years) on the
  kidnapping  conviction.  The sentence for custodial interference (up to two
  years) runs concurrently with the  kidnapping sentence.

FN3.  The threat of force was, if anything, much greater in the instant case
  than in Washington where the defendant was apparently unharmed.  Here, the
  defendant had a loaded firearm with twenty-eight rounds in the ammunition
  clip and one round in the chamber.


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