Supreme Court On Appeal from Superior Court, Essex Unit, Criminal Division January Term, 2013 M. Kathleen Manley, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
BURGESS, J. Associate Justice
¶ 1. Defendant Michael Cahill appeals from superior court convictions for aggravated assault with a deadly weapon and reckless endangerment following an incident where he pointed a loaded firearm at a farmhand. Defendant argues that the court erred in denying his motion for judgment of acquittal, improperly instructing the jury on the elements of aggravated assault, and convicting him of both aggravated assault and reckless endangerment. We affirm defendant’s aggravated assault conviction and remand for vacatur on either the reckless endangerment conviction or the aggravated assault conviction.
¶ 2. The relevant facts are undisputed. The gunplay at issue in this case arose out of an ongoing dispute between defendant and his farmer neighbor. Defendant raised vegetables in fields next to his neighbor’s dairy farm in Guildhall. Defendant and the farmer had a history of conflict over the farmer’s practice of spreading liquid manure on his fields, which defendant believed contaminated his gardens with E coli bacteria. Defendant and the farmer ultimately reached an agreement in the fall of 2009 that the farmer would not spread manure past the halfway point in the field directly adjacent to defendant’s property.
¶ 3. On July 1, 2010, the farmer directed his farmhand to spread manure on the field adjacent to defendant’s property. The farmer warned the farmhand that a confrontation with defendant might arise and instructed the farmhand not to cross the agreed-upon halfway point. Defendant saw the farmer’s manure-spreading truck approach the halfway line and became very angry. Defendant strode into the field toward the farmer’s truck with a.45 pistol and stopped about twenty-five yards from the truck. Defendant then cocked a shell into his pistol and pointed it at the farmhand for a few seconds before turning the pistol to the right and firing it toward the woods. The farmhand called the farmer, who arrived at the field shortly thereafter.
¶ 4. Defendant confronted the farmer, and the two men argued loudly about the manure. Defendant became more enraged during this exchange and struck the farmer’s truck. The farmer then drove off and called the police.
¶ 5. Defendant waited at his home for the police to arrive. While waiting, defendant fired his pistol at the base of a bird feeder on his property several times. Defendant also called a reporter and a health department official in an attempt to have them report on the story. The Essex County Sheriff went to defendant’s residence along with Vermont State Police. After the officers arrived, defendant took pictures of the scene with his camera because reporters were not present to document the officers’ arrival. In a fifteen-minute standoff with the officers, defendant argued with them before approaching. Defendant eventually told the officers that he brought his gun to the field but did not shoot it until he was back on his property. Defendant also explained that he wanted to draw publicity to his personal campaign against the manure spreading because he was unable to get assistance from the Environmental Protection Agency. After arresting defendant, the police returned to the field with a metal detector and discovered a.45 caliber round with a spent casing nearby, supporting the contention that defendant fired a shot while in the field, as described by the farmhand. At trial, both the farmhand and another witness testified that defendant pointed his gun at the farmhand in the field. The farmhand testified that he knew defendant pointed the gun at him because he “was pretty much looking down the barrel.” The farmhand also testified that defendant’s actions in the field caused him no fear. Defendant, however, testified that he never pointed a gun at the farmhand, explaining, “I don’t aim weapons unless I intend to kill.”
¶ 6. After the close of the State’s case, defendant moved to dismiss the aggravated assault charge. Defendant argued that there was no evidence that he had the requisite specific intent to threaten necessary to sustain a conviction. The court denied defendant’s motion, ruling that defendant’s act of pointing the gun at the farmhand constituted a threat that defendant emphasized when he turned and fired the gun into the woods.
¶ 7. In its instructions, the court told the jury that for aggravated assault, the defendant must have communicated an intent to harm such that a reasonable person would understand it to be a threat. Defendant did not object to the instruction. The jury returned a verdict of guilty for aggravated assault, reckless endangerment, and disorderly conduct. [*] The court imposed a sentence of two-to-five years on the assault count, six-to-twelve months consecutive on the reckless endangerment count, and fifty-nine-to-sixty days for disorderly conduct. This appeal followed.
¶ 8. Defendant contends that the trial court’s denial of his motion for acquittal was error, that its specific-intent instruction for aggravated assault was error, and that the convictions and sentences for both aggravated assault and reckless endangerment, on the facts of this case, violated his right against double jeopardy. The State responds that the trial court correctly denied defendant’s motion for acquittal and that the court’s jury instructions do not warrant reversal. The State concedes that the dual conviction and sentence for aggravated assault and the lesser included offense of reckless endangerment cannot be sustained, and urges this Court to vacate the lesser reckless endangerment conviction. We agree ...