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Present ability to inflict injury upon the person assailed is not a prerequisite to a finding of simple assault. While there must be some power to do bodily harm, either actual or apparent, apparent power alone is sufficient.
Defendant James Riley stopped the car in the breakdown lane of the highway. A state trooper approached defendant's vehicle and, during a routine check of the car form the outside, noticed a handgun on the seat beside defendant. Defendant refused to get out of the car and reached for the gun. The trooper drew his weapon, at which point defendant slid the gun along the seat until he could place it on the floor in front of the passenger seat. Defendant then got out of the car. Defendant was charged with the crime of attempting by physical menace to put another in fear of serious bodily injury under Vermont's simple assault statute, 13 V.S.A. § 1023(a)(3). At trial, the trooper testified that defendant's actions and his handling of the gun were such that they caused him to feel threatened and to fear for his life. Defendant was convicted. On appeal, the defendant claimed that the State failed to prove all the elements of the crime. The defendant claimed first, that because the handgun lacked a firing pin it could not put the trooper in actual danger, and second, that because the evidence showed no sudden or threatening moves by the defendant, the requisite criminal intent was never established.
Should the defendant’s conviction under 13 V.S.A. § 1023(a)(3) be affirmed, notwithstanding: (i) the fact that the handgun lacked a firing pin; and (ii) the lack of any sudden or threatening moves by the defendant?
The court noted that Vermont's simple assault statute was patterned after the simple assault provision written into the Model Penal Code at § 211.1. According to the court, the language under which the defendant was charged, 13 V.S.A. § 1023(a)(3), was intended to incorporate into the criminal law the civil notion of assault, that an action may be maintained against a person who placed another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat. Pursuant to this, the court held that even though the handgun lacked a firing pin and even though the evidence showed no sudden or threatening moves by defendant, the State established the requisite criminal intent.