Impaired Breathing as “Serious Bodily Injury” Under Vermont’s Aggravated Domestic Assault Statute; No Plain Error in MPC-Style Recklessness Instruction

I. Introduction

In State v. Kisha Parson, the Vermont Supreme Court reviewed a jury conviction for first-degree aggravated domestic assault arising from an alleged incident in June 2023 involving the defendant and her eleven-year-old daughter. The State’s theory was that the defendant sat on the child and shoved a sock into her mouth, causing the child to gag and struggle to breathe.

On appeal, the defendant raised two unpreserved claims: (1) insufficient evidence of “serious bodily injury,” and (2) erroneous jury instructions that allegedly directed a guilty verdict and prevented consideration of a lesser-included offense. Because neither issue was preserved, the Supreme Court applied the demanding plain-error framework and affirmed.

II. Summary of the Opinion

The Court affirmed the conviction on two principal holdings:

• Sufficiency / serious bodily injury: The record contained evidence that the defendant’s conduct impeded the child’s breathing (sock shoved to the back of the mouth, gagging, “could barely breathe”). The Court rejected, at the plain-error level, the claim that the State needed proof such as loss of consciousness, hospitalization, or medical treatment to establish “serious bodily injury.”
• Jury instructions: The Court held there was no plain error in the recklessness instruction (tracking the Model Penal Code formulation) and no instruction that directed a verdict or precluded a lesser-included offense; the jury was instructed it could consider a lesser offense if it did not find guilt on the greater.

III. Analysis

A. Precedents Cited

1) Plain-error framework and unpreserved issues

• State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292: The Court emphasized the “very high bar” for plain error, setting the tone for rejecting both unpreserved claims.
• State v. Kuhlmann, 2021 VT 52, ¶¶ 26-27, 215 Vt. 290: Provided the operative definition of plain error (“obvious,” affects “substantial rights,” results in “prejudice”) and the related principle that a trial court should sua sponte move for acquittal only when evidence is so tenuous that conviction would be “unconscionable.”
• State v. Nicholas, 2016 VT 92, ¶ 13, 203 Vt. 1: Supplied the plain-error standard specific to jury instructions and reinforced that plain error is found “only in rare and extraordinary cases.”
• State v. Provost, 2014 VT 86A, ¶ 14, 199 Vt. 568, and State v. Gilbert, 2009 VT 7, ¶ 7, 185 Vt. 602 (mem.): Used to underscore that alleged errors in “unsettled areas of law” are less likely to be “obvious,” defeating plain-error claims.

2) Sufficiency of evidence and the jury’s role

• State v. Davis, 2018 VT 33, ¶ 14, 207 Vt. 346: Clarified the standard when sufficiency is preserved (view evidence in light most favorable to the State). The Court contrasted that standard with the stricter posture when the issue is unpreserved.
• State v. Davis, 2020 VT 20, ¶ 21, 211 Vt. 624: Quoted for the “unconscionable” threshold in the unpreserved sufficiency context.
• State v. Hinchliffe, 2009 VT 111, ¶ 22, 186 Vt. 487, and State v. Johnson, 2013 VT 116, ¶ 27, 195 Vt. 498: Reinforced that credibility and weight of evidence are for the jury, and appellate courts do not substitute their judgment.

3) Statutory definitions and charging choices

• State v. Carter, 2017 VT 32, ¶¶ 16, 18, 204 Vt. 383: Central to rejecting the defendant’s statutory “tradeoff” argument. The Court relied on Carter to explain that the “alternative definition of serious bodily injury by strangulation” (added in 2006) did not displace the preexisting “substantial impairment” routes; the State may proceed under either definition with distinct mental-state requirements.

4) Recklessness instruction and directed-verdict concerns

• State v. Brooks, 163 Vt. 245, 251 (1995): Supported the court’s use of the Model Penal Code definition of “recklessness,” validating the challenged language as standard and endorsed.
• State v. Webster, 2017 VT 98, ¶ 22, 206 Vt. 178: Applied the presumption that jurors follow instructions, undermining the claim that the jury was effectively forced to convict.
• State v. Pelican, 160 Vt. 536, 540 (1993): Used to reject the characterization of the charge as a directed verdict where the instructions set out elements and lesser-included offenses and told jurors to acquit if they had reasonable doubt.

B. Legal Reasoning

1) The statutory pathway the jury used mattered

The charge was first-degree aggravated domestic assault under 13 V.S.A. § 1043(a)(1), requiring that the defendant “attempts to cause or willfully or recklessly causes serious bodily injury to a family or household member.” The jury received a special verdict form offering two theories:

• Willful strangulation: “intentionally impeding normal breathing” by pressure on throat/neck or blocking nose/mouth (tracking 13 V.S.A. § 1021(a)(2)(B)).
• Reckless serious bodily injury: “substantial loss or impairment” of bodily member/organ or “substantial impairment of health” (tracking 13 V.S.A. § 1021(a)(2)(A)(ii), (iii)).

The jury convicted under the second theory. That posture blunted the defendant’s attempt to reframe the case as effectively a strangulation charge requiring a different or heightened showing.

2) No “heightened” proof rule was read into the statute

The defendant’s central statutory argument posited a legislative “balance”: if strangulation is included in “serious bodily injury” without traditional injury proof, then the “substantial impairment” prong should require some heightened evidentiary showing. The Court rejected that argument as inconsistent with the statutory text and with State v. Carter. In other words, the Court declined to create an unwritten evidentiary threshold beyond “substantial impairment” itself.

3) Evidence of impaired breathing can satisfy “serious bodily injury” without medical sequelae

The Court held the State presented sufficient evidence under the statute’s plain language: the sock was shoved to the back of the child’s mouth, she gagged, and she “could barely breathe,” compounded by nasal congestion. Importantly, the Court stated it had “never held” that the victim must lose consciousness, seek medical treatment, go to the hospital, or “worse” to establish serious bodily injury—particularly in this plain-error posture.

4) The recklessness instruction did not direct a verdict

The defendant challenged the instruction’s phrasing that the jury “may find” recklessness if she “consciously ignored a substantial and unjustifiable risk” that her conduct “would cause [the child] to have difficulty breathing.” The Court treated this as a permissible articulation of the mental-state element, consistent with the Model Penal Code and endorsed in State v. Brooks.

Crucially, the Court read the instructions and verdict form as requiring more than “difficulty breathing” alone: the jury still had to find the statutory level of “serious bodily injury” (e.g., substantial impairment of a bodily member/organ or health). Thus, the “difficulty breathing” phrase functioned as a way to explain risk awareness for recklessness, not as a substitute definition for serious bodily injury.

5) Lesser-included offense preserved in the charge

The Court rejected the claim that the jury was blocked from considering a lesser offense because the jury was explicitly instructed it could consider a lesser-included offense if it did not find guilt on the aggravated charge. Applying State v. Webster, the Court presumed jurors followed that direction.

C. Impact

• Breathing-impairment evidence as “serious bodily injury”: Although nonprecedential, the order signals that Vermont appellate review is unlikely (especially on plain error) to impose a categorical requirement of medical treatment, loss of consciousness, or hospitalization to prove “serious bodily injury” when the impairment concerns breathing and the evidence supports “substantial impairment” as framed by § 1021(a)(2)(A).
• Charging flexibility after the strangulation amendment: By reaffirming State v. Carter, the Court again treats strangulation as an additional definitional route to “serious bodily injury,” not as a restructuring that silently heightens burdens under the alternative “substantial impairment” route.
• Instruction drafting and appellate preservation: The decision underscores that MPC-style recklessness language is safe territory in Vermont (Brooks), and that defendants who want more granular limiting instructions (e.g., distinguishing transient breathing discomfort from substantial impairment) must request them and preserve objections; otherwise, plain error will be difficult to establish.

IV. Complex Concepts Simplified

• Plain error: A narrow doctrine allowing an appellate court to correct unpreserved mistakes only when the error is obvious and seriously affects fairness or rights. It is intentionally hard to satisfy.
• Sufficiency of the evidence: Whether there was enough evidence for a rational jury to find guilt beyond a reasonable doubt. When not preserved, Vermont applies an even more defendant-unfriendly lens (intervening only if conviction would be “unconscionable”).
• “Bodily injury” vs. “serious bodily injury” (13 V.S.A. § 1021):
  • Bodily injury includes physical pain, illness, or impairment of physical condition.
  • Serious bodily injury is bodily injury plus a higher degree of harm, including “substantial” impairment of an organ (e.g., lungs) or “substantial” impairment of health—and separately includes statutorily defined strangulation.
• Recklessness (Model Penal Code formulation): Acting while consciously disregarding a substantial and unjustifiable risk—where that disregard is a gross deviation from how a law-abiding person would act.
• Directed verdict concern in jury instructions: Instructions are improper if they effectively tell the jury it must convict. Here, the Court concluded the instructions still required the jury to find each element (including “serious bodily injury”) and expressly allowed acquittal and lesser-included consideration.

V. Conclusion

State v. Kisha Parson affirms a first-degree aggravated domestic assault conviction where the State proved that the defendant’s conduct significantly impeded an eleven-year-old child’s breathing by forcing a sock into her mouth. The Court (1) refused to graft a medical-treatment or loss-of-consciousness requirement onto the statutory definition of “serious bodily injury,” particularly on plain-error review, and (2) approved the use of MPC-style recklessness language while rejecting claims that the instructions directed a verdict or removed lesser-included offenses.

Even as a nonprecedential entry order, the decision is a practical warning: unpreserved challenges to “serious bodily injury” and to standard recklessness instructions face steep odds on appeal in Vermont, and disputes about the degree of impairment are typically left to the jury when supported by record evidence.