## Facts

- In the early morning of October 20, 1979, James Riley stopped his car in the breakdown lane on an isolated stretch of interstate highway near St. Albans, Vermont, with the interior light on.
- A Vermont state trooper pulled in behind Riley’s car and approached to ask why he was stopped.
- Riley told the trooper he had a cramp in his leg and was massaging it.
- While checking the vehicle from outside, the trooper saw a handgun lying on the passenger seat, with the barrel pointed toward the passenger door.
- The trooper opened the driver’s door and directed Riley to put both hands on the steering wheel; Riley complied.
- The trooper then ordered Riley to get out of the car; Riley refused.
- When the trooper repeated the command, Riley dropped a hand from the steering wheel and reached toward the handgun.
- The trooper drew his own weapon. Riley said, “everything is cool, don’t shoot,” and slid the handgun along the seat and placed it on the floor in front of the passenger area.
- The trooper testified that, as Riley moved the gun, the trooper could not see where Riley’s hand was and feared for his life.
- Riley testified that he was moving the gun to keep the trooper from becoming alarmed and shooting him.
- It was undisputed that the handgun lacked a firing pin and could not be fired.
- Riley was charged under Vermont’s simple-assault statute, 13 V.S.A. § 1023(a)(3), with attempting by physical menace to put another in fear of serious bodily injury.
- At trial, the jury was instructed that it could consider Riley’s conduct and how the trooper saw and reacted to that conduct. The jury convicted Riley.

## Issues

1. Whether the evidence was sufficient to prove attempting by physical menace to put another in fear of serious bodily injury under 13 V.S.A. § 1023(a)(3) when the handgun was inoperable and the defendant claimed he lacked threatening intent.
2. Whether the trial court’s intent instruction improperly gave too much weight to the trooper’s subjective reaction rather than the defendant’s intent and conduct.

## Decision

- The Vermont Supreme Court affirmed Riley’s conviction.
- The court held the evidence allowed a rational jury to find that Riley intended, and took a substantial step toward, putting the trooper in fear of serious bodily injury by physical menace, despite the gun’s inability to fire.
- The court held the jury instructions properly allowed jurors to consider the surrounding circumstances, including the trooper’s reaction, without removing the State’s burden to prove intent and attempt beyond a reasonable doubt.

## Legal Principles

- To prove criminal attempt, the State must show (1) intent to commit the target offense and (2) an act beyond mere preparation that strongly supports the criminal purpose (a substantial step).
- Under 13 V.S.A. § 1023(a)(3), simple assault includes attempting, by physical menace, to place another in fear of serious bodily injury.
- For an assault defined by fear and menace, the “apparent” ability to do harm may be enough; actual ability to inflict injury (such as a working firearm) is not required when the defendant’s conduct would reasonably cause fear of serious bodily injury.
- In deciding intent and attempt, the factfinder may consider the whole setting, including how the threatened person experienced the defendant’s actions, while still requiring proof of the defendant’s intent and conduct beyond a reasonable doubt.
- Conflicting explanations for the defendant’s actions (e.g., a claimed benign reason for reaching toward or moving a visible gun) present credibility questions for the jury.

## Conclusion

The Vermont Supreme Court affirmed Riley’s conviction because the jury could reasonably find that, after refusing to exit the vehicle, Riley’s reach toward a visible handgun and his handling of it during the encounter constituted a substantial step and physical menace intended to place the trooper in fear of serious bodily injury, and the trial court’s instructions permissibly allowed consideration of the trooper’s reaction as part of the circumstances bearing on intent and attempt.


Vermont v. Riley, 442 A.2d 1297 (1982)