On Appeal from Superior Court, Grand Isle Unit, Criminal Division June Term, 2012 Ben W. Joseph, J.
The opinion of the court was delivered by: Dooley, J.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. DOOLEY, J. Defendant Jeffrey Brandt, convicted by a jury of two counts of second-degree aggravated domestic assault and one count of driving with a license suspended (DLS), now appeals. He makes three arguments: (1) the trial court erred in denying his motion to sever the charges and grant him separate trials; (2) the jury instruction on excited utterances improperly bolstered the credibility of the complainant's out-of-court statement; and (3) the prosecutor's opening and closing arguments were inappropriate and denied him a fair trial. We affirm.
¶ 2. From the testimony of the complainant, the following story emerged. On the evening of August 7, 2009, defendant awoke the complainant, his wife, and told her that he wished to take their shared vehicle, a GMC Jimmy, to a party. The complainant pointed out to defendant that she had to work in the morning, so he needed to return with the car before she had to leave the next day. This spurred an argument, and defendant expressed that he felt as if she had given him a curfew. The argument led to violence when defendant threw his wife down, her head striking an unidentified hard object--either the coffee table or some boxes. Defendant then drove to the party, while the complainant lay dazed in the back seat. At the party, she managed to find a ride home from a friend, who observed a bump on the back of her head.
¶ 3. Defendant came back to the house at around five o'clock the following morning. The complainant was unable to get the keys to the vehicle from defendant. She unsuccessfully tried to call her work to say she would be late. Eventually, she decided to leave defendant and began packing her things. Defendant locked her out of the car, and a second quarrel began. Again, the argument escalated. Defendant grabbed the complainant's face and began striking her head against the living room wall. She managed to break away from defendant and fled from the house, running to the nearby grocery store, A&B Beverage. She entered the store and approached an employee, exclaiming that she had been attacked and that he should call the police for help.
¶ 4. Shortly after the complainant entered the store, defendant arrived in the vehicle. The store owner led the complainant, panicked, into the back of the store, while the employee called 911. At the direction of the owner, a customer of the store opened the door and informed defendant that he was not welcome. He returned to the vehicle and drove away. The complainant was taken to a nearby hospital.
¶ 5. On November 6, 2009, defendant was charged with two counts of domestic assault and one count of driving with a suspended license. One count of assault was for defendant's actions during the evening of August 7; the other was for his actions during the morning of August 8. The DLS charge was for his driving to and from the grocery store on August 8. Following a trial, the jury convicted defendant of all three charges. Defendant appeals, raising three assertions of error.
¶ 6. We first address defendant's claim that the trial court erred by failing to sever the two assault charges and grant defendant separate trials.*fn1 Defendant contends that Vermont Rule of Criminal Procedure 14 provided him with an absolute right to severance because the charges were not sufficiently related and were joined solely based on their similar character. The trial court ruled that the charges were not joined solely based on their similar character. The court reasoned that because "[a]ll 3 incidents occurred on April 7 and 8, 2009, and they involve the same parties" that therefore "[t]his is a series of events."
¶ 7. The issue involves two rules of the Vermont Rules of Criminal Procedure. The first is Rule 8(a), which provides four possible grounds for charging a defendant with more than one offense in a single information: (1) the offenses "are of the same or similar character"; (2) they "are based on the same conduct"; (3) they are based on "a series of acts connected together"; or (4) they constitute "parts of a single scheme or plan." The second is Rule 14, which controls severance of offenses joined in an information in order to provide separate trials on the offenses. It provides a defendant the right to severance if the offenses were joined solely for the first reason stated above--that they are "of the same or similar character." V.R.Cr.P. 14(b)(1)(A). If the offenses were joined for any of the other reasons, the court may sever the offenses before trial if "it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense." Id. 14(b)(1)(B)(i).
¶ 8. In this case, defendant invokes Rule 14(b)(1)(A) and claims that the offenses were joined solely because they are of similar character. In that circumstance, he argues, he had a right to severance of the offenses. He made no argument in the trial court, and similarly makes no argument here, that severance was ...