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State v. Perley

Supreme Court of Vermont

September 26, 2014

State of Vermont
v.
Timothy P. Perley

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.

Appeal from: Superior Court, Frank. Crim. Division. DOCKET NO. 1169-11-12 Frcr. Trial Judge: Crucitti.

Dooley, Skoglund, and Robinson, JJ.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

Defendant appeals from a jury conviction of resisting arrest, arguing that there was insufficient evidence to convict him and that the prosecutor's mischaracterization of the evidence requires reversal of the conviction. We affirm.

At approximately 11:00 in the evening of November 9, 2012, a state trooper observed defendant pull his vehicle into a neighbor's driveway before reaching the trooper, who had pulled to the side of the road ahead of defendant because of his belief that defendant had committed a traffic violation. When no one exited defendant's vehicle, the trooper activated his blue lights and approached the vehicle. The video camera in the trooper's cruiser recorded what transpired over the next several minutes. The trooper observed defendant sitting in the front passenger seat of the vehicle. When the trooper asked defendant why he had moved to the passenger seat, defendant denied having done so. Upon smelling a strong odor of intoxicants, observing defendant's watery and bloodshot eyes, and hearing defendant's mumbled speech, the trooper ordered defendant out of the car, patted him down, had him perform dexterity tests, and gave him a preliminary breath test, which revealed a blood-alcohol concentration of more than twice the legal limit.

The trooper then informed defendant that he was under arrest. Defendant pleaded with the trooper not to arrest him. When the trooper attempted to handcuff him, a scuffle ensued, and the trooper threw defendant to the ground to subdue him. Defendant broke free from the trooper's grasp and ran to the neighbor's house yelling for help. The trooper used a Taser on defendant, to no avail. Eventually, after the neighbor came out and encouraged defendant to cooperate, the trooper was able to handcuff defendant and place him under arrest.

Defendant was charged with driving while intoxicated, resisting arrest, disorderly conduct, simple assault on a police officer, and escape from custody. The trial court dismissed the escape-from-custody charge before trial. Following a one-day trial, the jury convicted defendant of driving while intoxicated and resisting arrest but acquitted him of disorderly conduct and assault on a police officer. The trial court denied defendant's motion for judgment of acquittal on the resisting arrest charge.

On appeal, defendant first argues that the trial court erred by denying his motion for judgment of acquittal because the evidence was insufficient for the jury to convict him of resisting arrest, considering the elements of the crime as instructed by the trial court. According to defendant, there was no evidence that defendant engaged in any specific conduct that amounted to an open physical act coupled with an intent to resist arrest. He contends that having his hands in his pocket and pleading with the officer not to arrest him was not an open physical act with intent to resist arrest sufficient for conviction under Vermont's resisting arrest statute, 13 V.S.A. § 3017(a).

In reviewing the trial court's denial of a motion for judgment of acquittal, " we view the evidence in the light most favorable to the prosecution, ... and determine whether the State's evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt." State v. Devoid, 2010 VT 86, ¶ 9, 188 Vt. 445, 8 A.3d 1076 (quotation omitted). Section 3017(a) criminalizes an intentional attempt " to prevent a lawful arrest [from] ... being effected or attempted by a law enforcement officer." The trial court instructed the jury, in relevant part, that it could convict defendant of resisting arrest only if it found that he intentionally attempted to prevent a lawful arrest. The court further charged the jury that an attempt to prevent a lawful arrest requires an open physical act coupled with a purposeful and conscious intent, which may be shown by expressions to others or conduct. The court stated that defendant's mistaken belief as to the unlawfulness of the arrest could not be a defense to the charge, but that the officer would not be performing a lawful duty if he used excessive force in dealing with defendant prior to defendant's conduct giving rise to the charge.

In considering defendant's motion for judgment of acquittal, the court, like the jury, had the benefit of not only the witnesses' testimony but also the video recording of the incident taken from the cruiser's camera. The court determined that defendant's conduct of pulling away from the trooper and pulling his hands away to prevent the trooper from handcuffing him, after the trooper told him he was under arrest and directed him to put his hands behind his back, was sufficient to satisfy the elements of the crime and support the jury's verdict.

We agree. Viewing the evidence most favorably to the prosecution, there was ample evidence, including the video recording of the incident, for the jury to determine that, upon being told that he was under arrest and to turn around, defendant pulled away from the trooper and attempted to prevent the officer from handcuffing him. Although defendant was wearing a heavy coat that likely complicated the trooper's attempt to handcuff him, defendant's actions were such that the jury could conclude beyond a reasonable doubt that he was intentionally attempting to interfere with the trooper's attempt to handcuff him. Indeed, as he pulled away and attempted to prevent the trooper from handcuffing him, defendant repeatedly indicated that he did not want to be arrested.

Focusing on one sentence of the trial court's oral ruling on his motion for judgment of acquittal, defendant contends that, contrary to its instruction to the jury on the elements of resisting arrest, the court determined that merely not complying with the trooper's request was sufficient to satisfy ยง 3017(a) -- even without an overt physical act of resistance -- thereby effectively shifting the burden of proof to the defendant to demonstrate that he did comply with the officer's request. We disagree with this characterization of the trial court's ruling. As noted, the trial court found that defendant's ...


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