On Appeal from Superior Court, Bennington Unit, Criminal Division March Term, 2012 David A. Howard, J.
The opinion of the court was delivered by: Skoglund, J.
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,*fn1 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.*fn2 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 ...