State v. Bourn

The defendant was charged and convicted below for sexual assault. 18 V.S.A. § 8252(1) (A). On appeal his sole claim of error is that he was denied a fair trial because the trial court refused to instruct the jury on the elements of simple assault under 13 V.S.A. § 1023(a)(1). The thrust of the defendant’s argument is that simple assault is a lesser included offense of sexual assault.

In order for a defendant to be entitled to jury instructions on a lesser offense than that for which he is charged, the elements of the lesser offense must necessarily be included within the greater offense. See…