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USA : USA: Court sees aggravated assault in hunting accident
on 2008/12/2 11:20:59 (4 reads)

MONTPELIER, Vt.—The Vermont Supreme Court has ruled that a hunter who shoots and injures someone because he or she didn't properly identify the target can face an aggravated assault charge.

In a case arising out of Lamoille County, the court upheld the aggravated assault conviction of Eric Patch Jr., who was 17 and was out partridge hunting on his neighbor's land in November of 2006 when he saw movement in a tree, fired his 12-gauge shotgun and hit a deer hunter.

Andrew Gates, also of Hyde Park, was severely injured, still suffers from neurological problems and migraine headaches and is permanently disabled, said Christopher Moll, deputy state's attorney for Lamoille County.

Patch's lawyer, William Cobb of Hyde Park, sought dismissal and then acquittal on the charge, saying the state did not prove he intended to harm the victim.

The high court found that intent wasn't a necessary component of the crime, and that the recklessness of firing without being sure of the target was sufficient.

Prosecutors "elicited testimony that defendant had hunted on his neighbor's property in the past and knew that there were tree stands in the area," the court said.

"Defendant argues that the state had to prove that defendant knew about the risk of harm to this particular victim, but the standard does not require such a showing. It was enough for the state to demonstrate that defendant knew that shooting at an unidentified target presented a risk of harm, especially in an area where there were tree stands and others might be present, and therefore deviated from the standard of conduct that a law-abiding person would observe."

Patch was an experienced hunter, having participated in the sport with his father since he was a young boy and taken hunter-safety courses, according to testimony at his trial. While he had hunted on his neighbor's land -- Gates was the landowner's son-in-law -- the land had since been posted and Patch had been asked within weeks of the shooting to stay off it, Moll said.

Patch also was convicted on a trespass charge and did not appeal that count. Cobb said in an interview Monday that the trespass may have helped persuade the jury to convict Patch on the aggravated assault charge.

Patch could have faced up to 15 years in prison and a $10,000 fine on the assault conviction. Judge Brian Grearson sentenced him to 120 days to 10 years, with 60 days in jail, 60 days on a work crew and then furlough, Moll said.

Essex County State's Attorney Vincent Illuzzi said he was encouraged by the court's order, adding that it will give prosecutors more leeway on what charges to bring when a hunter shoots a person. Such a charge would not be brought in all cases, but "in the appropriate circumstances, there could be a charge of aggravated assault," he said.

Two hunting advocates said Monday that Patch appeared to have violated a cardinal rule of hunting safety: Know what the bullet is going to hit before shooting.

"What I expect is going to happen in the firearms instruction course is that they're going to cite this case, and tell people that such a reckless discharge of a firearm can result in an aggravated assault conviction," said Evan Hughes of Barre, central vice president and legislative liaison with the Vermont Federation of Sportsmen's Clubs.

Steve McLeod of the Vermont Traditions Coalition, which represents groups including hunters, farmers and other traditional land users, said, "The first thing sportsmen are taught is to know your target. It's the most basic rule and sportsmen certainly understand and support prosecution of those (who) harm another human being for failure to identify their target."

The Supreme Court decision was contained in an unpublished entry order, a court ruling that has the force of law for those involved but does not create a precedent.

Nonetheless, Hughes said he expected the principle established by the court could extend to other types of recklessness. A boater who plows through what is clearly marked as a diving area and hits a diver trying to surface could face such a charge, he said.

http://www.boston.com/news/local/vermont...ostPop_Emailed5

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