Domestic assault conviction overturned
An order issued by a three-justice panel on Feb. 2 reversed the conviction for Alan R. Osgood, Jr., finding that the trial court's instructions to the jury was in error. The conviction was based on an incident in 2015 in which he was charged with assaulting a woman he knew.
Jurors, in a trial in Vermont Superior Court Bennington criminal division in April 2017, found Osgood, 26, not guilty of felony attempted aggravated domestic assault and second-degree unlawful restraint, and misdemeanor reckless endangerment. But jurors did find Osgood guilty of a lesser misdemeanor domestic assault charge. He received a three-to-six month suspended sentence and was placed on probation.
Osgood, in his appeal, argued the trial court's instruction on the lesser offense did not guarantee juror unanimity as to which of his acts supported the guilty verdict.
The charges stem from an incident in Pownal on Nov. 20, 2015. The decision states Osgood and the woman were in a car together when they had an argument about money. The woman testified that, while at a friend's house, Osgood held her face in his hands. They then went to Osgood's parents' home. As they pulled into the driveway, Osgood "jammed" the car's transmission into park and the woman struck Osgood in the face.
Two law enforcement officers testified that both Osgood and his father made statements indicating Osgood had choked the woman after she struck him in the face, according to the decision. One officer also testified that the woman said that Osgood "had put his hands around her face and squeezed," an act that took place in the driveway of Osgood's parents' home.
The woman testified at trial that Osgood "held her face in his hands earlier in their protracted argument when they were at a friend's house."
At trial, the court granted the prosecutor's request that the jury could find Osgood guilty of the lesser domestic assault charge.
Osgood argued the alleged acts of grabbing the woman's face and squeezing her throat "where distinctly different acts separated by time and place," the decision states. "According to the defendant, the court's instruction gave the jury multiple ways for all 12 jurors to conclude that he committed domestic assault by attempting to cause [the woman] bodily injury.
The decision states that the court's instruction "was error even under plan-error review."
"A jury could infer on the basis of one law enforcement officer's testimony...that the face-cradling incident and the choking incident were one and the same," the decision states.
Based on the woman's testimony, "the jury could could also readily find that the face-cradling and choking incidents were entirely distinct, separate by time and space."
Ed Damon can be reached at firstname.lastname@example.org, at @edamon_banner on Twitter and 802-447-7567, ext. 111.
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