CR21-031                   10/29/10

ASSAULT AND ROBBERY (ATTEMPT BY PHYSICAL MENACE) – 13 V.S.A. § 608(a)

            The State has charged (Def)_______________ with assault and robbery, by an attempt to place another in fear of imminent serious bodily injury, as follows:

            [Read the charge.]

            Every crime is made up of essential elements.  Before (Def)_______________ can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt.  In this case, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________;

(2) attempted to put (victim)_______________ in fear of imminent serious bodily injury

(3) [he] [she] did so by using physical menace;

(4) [he] [she] also took money or other property which may be the subject of larceny from the [person] [presence] of (victim)_______________; and

(5) [he] [she] took the money or other property with the intent to deprive (victim)_______________ of it permanently.

The first essential element is that (Def)_______________ is the person who committed the alleged acts.

The second essential element is that (Def)_______________ attempted to put (victim)_______________ in fear of imminent serious bodily injury.  The term serious bodily injury means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement.  The term bodily injury means any physical pain, illness or any impairment of physical condition.  The word imminent means near at hand, on the point of happening.

An attempt requires an open, physical act by (Def)_______________, coupled with an intent to commit the offense.  Threatening words are not enough.  You must distinguish between mere preparation and the actual start of the criminal conduct.  Merely planning an offense, or doing some act which might be innocent in itself, is not enough.  An act is sufficient to be an attempt if it is intentional, and if it progresses far enough to be the beginning of the crime.

The State must have proven that (Def)_______________ acted with the conscious objective of putting (victim)_______________ in fear of imminent serious bodily injury.  The State need not have proven that the victim actually was in fear of serious bodily injury.  The intent with which a person does an act may be shown by the way in which he or she expresses it to others, or by his or her conduct.  In determining (Def)_______________’s intent, you should consider all of the surrounding facts and circumstances established by the evidence.

The third essential element is that (Def)_______________ made [his] [her] attempt by using physical menace.  Physical menace means a threat, by word or act, to inflict physical injury upon another person.  Here the State alleges that (Def)_______________ attempted by physical menace to place (victim)_______________ in fear of imminent serious bodily injury, by (specific acts charged)_______________.

The fourth essential element is that (Def)_______________ took money or other property which may be the subject of larceny from the [person] [presence] of (victim)_______________.  Anything that can be stolen may be the subject of larceny.  [A thing is in the presence of a person with respect to assault and robbery if it is so within his or her reach or control that he or she could retain the thing in his or her possession, if he or she were not overcome by (Def)_______________’s violence or prevented by fear caused by (Def)_______________.]

The last essential element is that (Def)_______________ took (victim)_______________’s money or other property with the intent of depriving (victim)_______________ of its value permanently.  This means that [he] [she] acted with a conscious objective of permanently depriving (victim)_______________ of the money or property.  It also means that [he] [she] acted voluntarily, and not inadvertently, or because of mistake, or by accident.

All of the elements of the offense must have been present at the same time.  If the State has not proven each of the essential elements of the charge beyond a reasonable doubt, then you must find (Def)_______________ not guilty.  However, if the State has proven all of the essential elements beyond a reasonable doubt, then you must return a verdict of guilty.