427 A.2d 373 | Vt. | 1981
Defendant below was convicted, after jury trial, of purposely, knowingly, and recklessly causing bodily injury to a police officer, one Baker, acting in performance of a lawful duty, in violation of 18 V.S.A. § 1028. Extensive review of the facts involved is not requisite to decision. An arrest and altercation ensued between the defendant and the officer, after defendant had been stopped on the highway for operating his automobile with defective equipment. At some point in the altercation, the police officer received cuts on his hand. He did not testify how they were received, despite his previous affidavit that defendant had bitten him. There was no other evidence to account for the cuts.
At the close of the evidence, defendant moved for acquittal on two grounds. Both were based on the insufficiency of the evidence, a lack of evidence of how the injuries were received, and a claim that defendant’s raising his arm was not alone sufficient to prove assault. The motion was denied.
The motion should have been granted. Section 1028 merely provides an increased penalty for simple assault under 13 V.S.A. § 1023 when the person assaulted is a law enforcement officer in the performance of his duty. Defendant was not charged, as he might have been, with an attempt to cause bodily injury, but with actually causing it. On this point, the State's evidence was simply insufficient. Without doubt, the
We do not reach the point of whether the purpose and knowledge required to be shown by the State’s conjunctive pleading, see State v. McDermott, 135 Vt. 47, 50-52, 373 A.2d 510, 513-14 (1977), was sufficiently in evidence. See State v. D’Amico, 136 Vt. 153, 156, 385 A.2d 1082, 1084 (1978). With insufficient evidence of causation of the bodily injuries complained of, the defendant’s intent, or lack of it, becomes immaterial to decision. The motion for judgment of acquittal should have been granted.
Judgment reversed. Judgment of acquittal entered.