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Conviction for Simple Assault Remanded for a New Trial Because the Admission of Testimonial Excited Utterances is a Violation of the Sixth Amendment’s Confrontation Clause and a Jury Can Reasonably Infer an Assault Causes Bodily Injury Without Direct Test

In State v. Alers, 2015 VT 74 (May 22, 2015), the Vermont Supreme Court remanded a conviction for simple assault for a new trial because the admission of testimonial excited utterances violated the Confrontation Clause of the Sixth Amendment. The Defendant was not acquitted because a reasonable jury could have inferred the assault caused pain or injury, an essential element of the crime, even though there was no direct testimony (other than the improperly admitted excited utterance) of bodily injury.

Issue: Defendant’s appeal of his simple assault conviction considered: 1) whether an out-of-court statement that falls within the excited utterance exception of the hearsay rule was testimonial and thus a violation of the Sixth Amendment’s Confrontation Clause; and 2) whether a jury could infer bodily injury, an essential element of a simple assault charge, without direct evidence of pain or injury.

Holding: After a review of Vermont and U.S. Supreme Court cases on the excited utterance exception and the Confrontation Clause, the Court held that the State did not meet its burden to establish that the out-of-court statement by the victim was nontestimonial because the statement was made in the context of obtaining a statement of what had happened fifteen minutes after the initial report, rather than addressing an ongoing emergency. The error in admitting the out-of-court statement was not harmless because it was the only direct evidence of bodily injury, an essential element of the crime. The Court held, after reviewing several out-of-state cases, that the Defendant should not be acquitted because there was sufficient indirect evidence for a reasonable jury to infer bodily injury. Therefore, the case was remanded for a new trial.

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