Trial Court’s Refusal to Instruct Jury on Negligence was not Erroneous in Assault Trial
State v. Valoroso (ICA February 26, 2021)
Background. Randal Valoroso was charged with assault in the first degree; that is, intentionally or knowingly causing serious bodily injury. At trial, the prosecution called Christopher Gray, who testified that Valoroso parked his parked his pickup truck and trailer about ten feet away from his the door to his house in Makawao on Maui. Gray was staying with his mother, Tracy Taylor, at the time. He told Valoroso he needed to move the truck. Valoroso challenged him. Gray started arguing with Valoroso and Taylor tried to intervene. Gray testified that Valoroso shoved Taylor, who slid down to the ground, and Valoroso jabbed a metal object into Taylor’s leg. Taylor also testified about the altercation with Gray and Valoroso and Valoroso pushing her back into the house, falling down, and getting injured.
The defense called the one of the officers who came to the scene and testified about inconsistent statements with Gray and Taylor. The defense also called a neighbor who saw part of the incident and testified that she never saw “the local boy” touch the “old lady.”
Valoroso submitted proposed jury instructions and included the HAWJIC Inst. No. 6.05, the definition of “negligently.” At the conference for the settling of jury instructions, however, the definition was not included or discussed. The circuit court, with the Hon. Judge Richard T. Bissen, Jr. presiding, agreed to give definitions for intentional, knowing, and reckless because of the included offense of assault in the second degree.
During his closing argument, counsel told the jury that Valoroso committed no crime.
He did not charge at Ms. Taylor. He did not slam her against the wall. He did not drag her underneath him, drag her against the ground. He did not stab her. And most importantly, he did not cause this injury to her, this horrific injury.
During jury deliberations, Valoroso raised the issue about the proposed jury instruction that was never discussed earlier. Counsel said he “did not catch it during the settling of jury instructions” but asked to include it now. The circuit court refused. Valoroso moved for mistrial and that was denied. The jury found Valoroso guilty of assault in the second degree. He was sentenced to probation and jail for one year. Valoroso appealed
The Circuit Court Didn’t need to Instruct the Jury about Negligence. The ICA held that it was not error to refuse the negligence instruction. Assault in the first degree and the included offense of assault in the second degree and third degree require an intentional, knowing, or reckless state of mind. A negligent state of mind is not enough to convict. The ICA held that there was no authority requiring the inclusion of this instruction and found no error in refusing to give it. See State v. Fuqua, 13 P.3d 34, 35 (Mont. 2000); State v. Fetterly, 886 P.2d 780, 781-782 (Idaho Ct. App. 1994).
What if the Defense was State of Mind? Here the defense was that Valoroso didn’t do it. The ICA held that for that defense and on these facts it was not error to omit the negligence definition. But what if the defense wanted to attack evidence of a reckless state of mind? What then? Can’t the defense use the negligence show that the prosecution must prove something more egregious? This case don’t say so.