## Facts

- Ronald Bean lived in a Middlebury residential mental-health facility with other residents who had serious mental illnesses.
- Bean struck another resident in the head during an altercation at the facility.
- The victim did not see the blow; he only felt it and later reported the impact and resulting sensations.
- A staff member standing behind the victim testified that she saw Bean reach over and punch the victim on the side of the head and heard the sound of contact.
- The State charged Bean with domestic assault, which required proof that the victim was a “family or household member.”
- At trial, Bean argued the domestic-assault “household member” element was not met because residents had separate rooms and the facility was more like a boarding-house arrangement than a shared household.
- The State requested a jury instruction on simple assault as a lesser-included offense of domestic assault.
- Over Bean’s objection, the trial court instructed the jury that it could consider simple assault if it did not find the household-member element beyond a reasonable doubt.
- The jury acquitted Bean of domestic assault but convicted him of simple assault.
- Bean appealed, challenging both the lesser-included determination and the court’s authority to give the instruction over his objection.

## Issues

1. Under Vermont’s elements-based test and the way the offenses were charged and instructed, is simple assault a lesser-included offense of domestic assault?
2. May a trial court, at the State’s request, instruct the jury on a supported lesser-included offense over the defendant’s objection?

## Decision

- The Vermont Supreme Court affirmed Bean’s conviction for simple assault.
- The court held that, as charged and instructed here, domestic assault contains all elements of simple assault plus the additional element that the victim is a family or household member; therefore, simple assault is a lesser-included offense of domestic assault.
- The court held the trial judge did not err by giving the lesser-included instruction over Bean’s objection because the lesser offense was necessarily included in the charged offense and the evidence permitted the jury to acquit on the greater offense while convicting on the lesser.
- The court concluded there was a rational basis for the jury’s split verdict: the evidence supported that Bean punched the victim (assault causing bodily injury), while the household-member relationship element was genuinely disputed.

## Legal Principles

- Vermont uses an elements-based test for lesser-included offenses: an offense is lesser-included if it is impossible to commit the greater offense without also committing the lesser.
- Domestic assault under 13 V.S.A. § 1042, as charged in this case, required proof of an assault causing (or attempted) bodily injury plus proof that the victim was a family or household member.
- Simple assault under 13 V.S.A. § 1023(a)(1), as applied here, required proof of attempting to cause or purposely, knowingly, or recklessly causing bodily injury to another; it matches the assault component of domestic assault.
- A trial court may instruct on a lesser-included offense at the State’s request even if the defendant objects, so long as (1) the lesser offense is necessarily included in the charged offense and (2) the evidence provides a rational basis to acquit on the greater offense and convict on the lesser.
- A defendant’s preference for an “all-or-nothing” strategy does not bar a correct lesser-included instruction when the law and evidence support it.
- Charging the greater offense provides notice of any necessarily included lesser offense, so instructing on the lesser does not violate due process on notice grounds when the lesser is truly included.

## Conclusion

The Vermont Supreme Court affirmed Bean’s simple-assault conviction, holding that simple assault is necessarily included within domestic assault (domestic assault equals assault plus a household-member element) and that the trial court could instruct on simple assault at the State’s request over Bean’s objection because the evidence allowed the jury to find an assault occurred while remaining uncertain about the household-member requirement.


State v. Bean, 149 A.3d 487 (2016)