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Vermont (2006)


In this unpublished opinion, the State of Vermont Supreme Court stated that “the basis for aggravated domestic assault would be that he sat on her, which caused her difficulty breathing.” According to the prosecutor, “the difficulty breathing” would satisfy the “serious bodily injury” element of the charge. This opinion stated that the State can charge an individual with “serious bodily injury” either by strangulation or by causing bodily harm in four ways including positional asphyxia.

To view original text use WestLaw citation: 2018 WL 372347

State v. Carpenter (1990) 155 Vt. 59, 580 A.2d 497

An act can create the requisite “substantial risk of death” without causing permanent physical damage; choking is a good example of such an act.

The defendant argued that substantial risk of death must be proven by a medical expert and that Dr. Peck was not an expert in choking. Further, he did not clearly express a clear opinion as to the degree of risk of death.

It does not take a medical expert to prove that a victim is in substantial danger of death when a person is choked to the point of passing out. Here, a stepdad sexually assaulted stepdaughter. He choked her and then put her head in bucket of water to keep her quiet.

The victim was strangled to unconsciousness twice and had petechiae in the eyes and face.

Medical testimony discussed how loss of consciousness is as a result of a lack of oxygen and loss of oxygen can eventually cause death.

State v. Hardy (2008) 184 Vt. 618

The defendant was denied bail. On appeal, the defendant claimed the trial court improperly considered Battered Women’s Syndrome in its decision.

Brattleboro Police responded to a domestic violence call. There had been prior domestic violence calls between parties. They were cohabitants and coparents.

One officer noticed the victim’s face and neck were reddish. The victim reported having an argument. The defendant wanted her car keys, money, and cell phone before he left the house. The victim said no. The defendant choked the victim with one hand, forced her face into the bed, and covered her nose and mouth with the other. The victim could not breathe.

The defendant applied pressure for about 30 seconds, triggering a severe asthma attack. When the defendant released his grip, the victim ran to the bathroom and locked it. The defendant kicked open the door and choked her again, preventing her from breathing.

The defendant then punched the victim. She fell. The victim tried to escape out the window, but the defendant pulled her back in by the hair and strangled her for a third time.

Detective Carignan noticed signs of strangulation – hoarse voice, visible injury to body, red and irritated neck, bruising to throat, and red broken capillaries in the eyes.

The defendant admitted he may have made contact with the victim’s throat, but only in self-defense.

The victim gave Detective Carignan her diary of prior strangulation, where she recorded when she had vomited and couldn’t breathe. Another diary had been destroyed by the defendant.

The defendant was arrested on 1st Domestic Violence. He was a habitual offender and held without bail – a possible sentence was life in prison.

The victim recanted. She said she was trying to restrain him. She was just worked up and just suffered from anxiety and asthma. She was the one to destroy the bathroom mirror and other things.

Detective Carignan testified as to his observations of the victim, the defendant, and the home. There was a DVD of the victim’s interview and a sworn statement.

The court found the victim’s testimony inconsistent and highly confusing. Even within her recantation, she admitted to the defendant’s arm being around her jaw, climbing out of the window, being afraid of the defendant, having the violence increase in severity, and feeling like the defendant was choking her at the time.

The court found the victim’s first statement to police more credible because of her condition/demeanor at the time and state of the crime scene.

The court held that it’s not unusual for a victim of repeated domestic violence to minimize, explain away or fully recant allegations of abuse. The court cited to court decisions.

The court found that the evidence of guilt was great and that the defendant posed a continued risk to the victim. Plus, the defendant had violated his parole and his probation, had failed to appear six times, and had been convicted of escape.

The defendant appealed because the court took judicial notice of Battered Women’s Syndrome and believed the victim’s contradictory statements. He requested to be released.

The Appellate Court held that a person charged with an offense punishable by life in prison may be held without bail if there is great evidence of guilt.

When that applies, the norm is incarceration, not release. As long as the defendant has a right to be heard, the court’s discretion is extremely broad.

Whether the trial judge considered Battered Women’s Syndrome was irrelevant. The court just needed to look at evidence against the defendant.

In re A.P. (2011, Vermont) 2011 WL 5996034 Unpub.

The victim reported an incident to her school. The school called CPS. No action was taken in 2005. Years later, when brother committed suicide and parties going through divorce, it began to move. The case was reopened in 2007 and substantiated in 2008. The defendant appealed, but it was upheld.

This case defined risk of harm for children and elaborated that a single act can be enough in certain circumstances.

State v. Steuerwald (2012) 193 Vt. 663

A neighbor called 911. The defendant was strangling the victim when officers arrived and wouldn’t stop. They stopped him.

The defendant was charged with aggravated domestic assault, furnishing alcohol to a minor, and violating conditions of release. The defendant appealed a no bail order.

Here, the court used the clear and convincing standard of review. The act of strangling was violent in the extreme. Potential lethality was compounded by use of alcohol. No condition of release would prevent the defendant’s threat of physical violence.

State v. Carter (2017) 169 A.3d 225

A boyfriend and girlfriend were living in a tent. 911 was called. Troopers arrived and saw marks on the girlfriend’s neck as well as a fading black eye. The defendant was charged with first degree aggravated domestic assault for nonfatal strangulation and second degree aggravated assault for the black eye. The state requested a lesser included offense for aggravated. He was convicted of the lesser included offense. Troopers arrive, see marks on neck and fading black eye. D charged with first degree aggravated domestic assault for NFS; and second degree aggravated for black eye.

The defendant claimed domestic assault is not a lesser included offense of aggravated domestic assault and that there is no such crime of strangulation, just a definition of serious bodily injury.

The victim reported being strangled for 30-60 seconds. She was in pain, dizzy, and out of breath. She thought she was going to lose consciousness and was afraid he was going to kill her.

The State did not allege the strangulation, just serious bodily injury. An extra sentence about strangulation was unwise and confusing. But the lesser included offense was still appropriate.

Strangulation requires intentional conduct not reckless.

State v. Laprade (2008) 184 Vt. 25

The defendant entered his girlfriend’s house and strangled her with a cord while she slept. There was a discussion that jury might find it difficult to believe that the victim would stay with the defendant after being strangled

Expert testimony was on Battered Women’s Syndrome was relevant and probative to the victim’s credibility.

The defendant appealed the priors and the Battered Women’s Syndrome testimony. The defendant also claimed it wasn’t him. He called two alibi witnesses. He also said he would know better than to leave the cord.

Prior 1: neighbor called police. The victim reported being struck to the face and grabbed but didn’t want to prosecute, just get a temporary restraining order, but she changed her mind. Stalking.

Prior 2: Conviction for domestic violence. Neighbor in adjoining hotel called 911. Police arrived. The victim reported being strangled and hit and wanted to leave and go home. She also reported even more priors. There were red marks on her neck, head, and cheeks.

Prior 3: The defendant failed to report to the department of corrections on his prior, which showed consciousness of guilt.

Prior 4: His ex-wife testified to prior domestic violence.

Priors domestic violence is generally admissible because it gives the jury an understanding of why the victim is less than candid in her testimony and allows them to decide more accurately which of the victim’s statements more reliably reflect reality.

In this case, the V didn’t necessarily recant; she just covered for him by not calling the police, bailing him out of jail, minimizing her injuries, forgetting, not wanting him to get in further trouble, and not notifying the police when he started stalking her. She only called the police this time because she thought she was going to die – but the jury would nevertheless find her behavior difficult to reconcile.

State v. Sheldon (2016) WL 937239. Unpublished

The defendant came home angry. There was an argument. The victim tried to call her son. The defendant grabbed her cell phone, choked her, and threatened her. The victim fell to the floor. There was a struggle, and the victim bit the defendant. She feared for her life. The defendant let go when the victim started coughing up blood, but he refused to take her to hospital and blocked her from leaving.

The next morning, she told her counselor, who advised her to file a police report. She did. She left and filed a TRO. Both her Counselor and the Officer testified to the bruising to her neck and face. Photos were introduced.

The defendant testified on his own behalf and said it was self defense. But he could not recall strangling her or banging her head against the floor.

In re Naylor (2018, Vermont) WL 372347 Unpublished

The defendant entered a no contest plea to 1st aggravated domestic violence and violating conditions of release.

5 months later, he made a motion to withdraw, which was denied. The defendant appealed, claiming his plea wasn’t voluntarily due to the court incorrectly stating the mens rea element. Positional asphyxia doesn’t amount to serious bodily injury.

The state can charge choking either by strangulation or by causing bodily harm in four ways. Sitting on the victim causing difficulty breathing created a substantial loss or impairment of the function of a bodily organ – namely the lungs.

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