This is an audio case brief of Vermont v. Trombley, 807 A.2d 400 (2002). The audio brief provides a full case analysis. However a written summary of the case is provided below.

Table of Contents


On the evening of February 18, 2000, a fight broke out between George Demarais, and Mathew Trombley. Various details of the fight are in dispute but here are the facts that were presented before the court.

On this evening, Trombley and Demarias were at a bar in St. Albans. The two men had both been drinking. Demarais testified that he had been sitting at the bar with some friends when Trombley, whom he did not know, approached him from behind. Trombley put him in a headlock, pushed him forward, and punched him several times in the face. Bystanders pulled Trombley off Demarais, and shortly thereafter, Demarais left the bar. In his testimony, Trombley explained that he approached Demarias at the bar because Demarais had been staring at him and he wanted to find out why. He stated that a brief struggle then ensued. And According to Trombley, after Demarais left the bar, he noticed that his hand had been cut and he decided to go after Demarais to “talk to him” about what Demarais had done.

The testimony differs as to what happened outside of the bar on Main Street once Trombley and Demarais had left the bar.

Here is Demarias accounts of what happened outside the bar.

According to Demarais,  he was walking away from the bar when Trombley grabbed him from behind and punched him at least twelve times before Demarais fell to the ground. He then started to lose consciousness. Demarais testified that before he started to lose consciousness and in an effort to defend himself  against Trombley, he pulled out a small knife and blindly slashed at Trombley over his shoulder. In return, Trombley delivered a few more punches on  him before stopping.

And here is Trombley’s account of what happened after the two men left the bar.

According to Trombley,  when he saw Demarais walking down the street outside the bar, he hollered at him to stop. He then ran towards him, and tackled him. They  both fell to the ground. Trombley testified that after some struggle, he  felt a pain in his side and became scared and angry. He testified that he repeatedly punched Demarais in an effort to get Demarais to stop stabbing him.

Both Trombley and Demarais suffered injuries. Demarais suffered a bruised face. His eyes were swollen shut and he experienced a partial loss of vision. One tooth had been knocked out, and another was  hanging by a thread. Trombley suffered multiple stab wounds to his face, the back of his scalp, his neck, hand and chest. The stab wounds were all superficial.

Trombley was charged with aggravated assault under 13 V.S.A. § 1024(a)(1). The  charge read:

“[defendant] was then and there a person who purposely caused serious bodily injury to another, to wit: George Demarais, by knocking some teeth out by repeatedly punching Mr. Demarais in violation of 13 V.S.A. § 1024(a)(1).” The jury convicted Trombley of aggravated assault.

Trombley appealed his conviction. He claimed that the court’s instruction to the jury was erroneous because it instructed the jury to consider whether defendant acted either “purposely” or “knowingly” when defendant was charged with only “purposely” inflicting serious bodily harm.

The Trial court’s instruction to the jury read:

To commit the offense purposely means that [defendant] acted with the conscious purpose of causing serious bodily injury or that he acted under circumstances where he was practically certain that his conduct would cause serious bodily injury.


The issue before the court is whether the trial court erred by instructing the jury on the mens rea of “knowingly” when the defendant was charged with only purposely causing a serious bodily injury.


Under the Model Penal Code, a person acts purposely in regards to his conduct if he or she acts with the conscious objective to engage in conduct of that nature or to cause such a result.

And a person acts knowingly in regards to his conduct if he or she is aware that it is practically certain that his conduct will cause a particular results.


In applying to this rule to the facts of the case, the court stated that it is important to distinguish the mens rea of knowingly from the mens rea of purposely. And because Trombly was charged with purposely causing serious bodily injury, the trail court erred in instructing the jury on a mens rea of knowingly. However, the court found that this error was harmless.

And here is why.

Trombley argued that his conscious objective was not to inflict serious bodily injury on Damaris. Rather, it was to defend himself against Demarais’ knife attack. And because the jury was instructed on mens rea of knowingly, the jury improperly considered and weighed evidence going on whether he acted under circumstances where he was practically certain his conduct would cause serious bodily injury, instead of considering evidence solely on his conscious objective.

But the court found that  Trombley’ argument was premised on the wrong notion. Trombley argument was premised on the notion that when considering whether  Trombley had formed the conscious objective to inflict serious bodily injury on Damarais, the jury may also consider Trombley justification for doing so. The burden of proof is on the defendant to present evidence to the jury support his justification.

The trial court’s inclusion of “knowingly” in the jury instructions was harmless error in the instant case because Trombley’s own assertion of self-defense established that he acted with the purpose of inflicting serious bodily injury on Demarais. Assuming defendant’s only motivation for punching Demarais was to defend himself against Demarais’s attack it was still his primary conscious objective to inflict serious bodily injury in order to achieve that goal. Given that there was a separate jury charge on defendant’s claim of self-defense, the jury was properly afforded the opportunity to consider any justification for defendant’s actions. While defendant appropriately raises a question as to whether the court erred in failing to distinguish between “purposely” and “knowingly,” we do not find defendant’s rationale – that this error precluded the jury’s consideration of any self-defense justification – persuasive.


Trombley’s conviction was affirmed.

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