Vermont Model Criminal Jury Instructions CR22-356

If you decide that the State has not proven each of the essential elements of first degree aggravated domestic assault, then you must consider whether (Def)_______________ is guilty of the offense of domestic assault. Or, if you are unable to agree upon a verdict concerning the charge of first degree aggravated domestic assault, after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the offense of domestic assault.[1]

LESSER INCLUDED OFFENSE - DOMESTIC ASSAULT

The crime of domestic assault is a lesser offense to the crime of first degree aggravated domestic assault. Even if (Def)_______________ is not guilty of first degree aggravated domestic assault, you may still find that the evidence has proven the offense of domestic assault.

For (Def)_______________ to be found guilty of domestic assault, you must find that the evidence has proven each of the following essential elements beyond a reasonable doubt: that on the date alleged and at the place alleged,

(1) (Def)_______________;

(2) caused bodily injury to (victim)_______________ by (specific acts)_______________;

(3) [he] [she] did so [wilfully] [recklessly]; and

(4) (victim)_______________ was a [family] [household] member.

The elements of identity, intent, and whether or not (victim)_______________ was a [family] [household] member, are the same as they were for the charge of first degree aggravated domestic assault, and you should apply the instructions I have already given you concerning those elements. However, the second essential element is different, because the State need not have proven that (Def)_______________ caused “serious bodily injury.” Instead, for the second element of domestic assault, the State must have proven that (Def)_______________ caused “bodily injury” to (victim)_______________. Bodily injury means physical pain, illness or any impairment of physical condition.

When considering the degree of crime involved in this case, the presumption of innocence plays two roles. First, (Def)_______________ is presumed to be innocent of any crime. Second, if you find beyond a reasonable doubt that (Def)_______________ committed an unlawful domestic assault, then you must give [him] [her] the benefit of any reasonable doubt in deciding the degree of domestic assault. In other words, you must apply the presumption of innocence, and weigh it against the evidence, at each step of your deliberations. Nevertheless, if all of the evidence, weighed along with the presumption of innocence, convinces you beyond a reasonable doubt that (Def)_______________ is guilty of first degree aggravated domestic assault, then you must find [him] [her] guilty of that charge.

Your verdict on this count will be one of three possible verdicts:

! Guilty of first degree aggravated domestic assault

! Guilty of domestic assault

! Not guilty of any crime

[1] This instruction describes a so-called “soft” transition. Defendant may elect a “hard” transition. State v. Duff, 150 Vt. 329, 335-37 (1988). See the Notes for an example.