Appeal from Superior Court, Windham Unit, Criminal Division
David Suntag, J.
A. McDonald-Cady, Windham County Deputy State's Attorney,
Brattleboro, for Plaintiff-Appellee.
Charles S. Martin and Stacey Knight, Law Clerk (On the Brief)
of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant was convicted of one count of domestic assault,
in violation of 13 V.S.A. § 1042, and one count of
cruelty to a child, in violation of 13 V.S.A. § 1304. On
appeal, he argues that the child-cruelty conviction should be
reversed because the trial court's jury instructions
allowed for a non-unanimous verdict, and that the State's
conduct during the trial created a risk of undue prejudice
with respect to both counts. We affirm.
2. The evidence presented at trial involved multiple injuries
to E.P., the victim, over a few weeks between early September
and mid-October of 2012. E.P.'s nursery school teacher
testified that E.P. arrived at school on September 7 of that
year with two black eyes, after having missed the first day
of school. The teacher asked the child's mother what had
happened, and the mother reported that the child had fallen
on a metal bedframe.
3. The next incident occurred on September 18, 2012. The
child's teacher testified that E.P. had been absent the
previous day, and when the child returned to school on the
eighteenth she had a bruise on her face. Neither the mother
nor defendant, who had a romantic relationship with the
mother and had moved in with her in April 2012, called the
school or provided a note explaining the bruise.
4. The teacher next observed an injury to the child a few
weeks later on October 10, 2012. E.P. was again absent from
school, and when she arrived the following day, she had
"a huge black eye." The child's left eye was
"very swollen" and it appeared to the teacher that
the injury "had happened recently." That morning,
the teacher made a report to the Department for Children and
5. E.P.'s mother testified that on the morning she saw
E.P.'s black-and-blue left eye, defendant explained that
the injury had occurred the night before when he was heading
to the bathroom at the same time as the child. According to
the mother's testimony, defendant told her that he and
E.P. had bumped into each other, and the child hit the
doorknob. In his interview with police, however, parts of
which were admitted at trial, defendant stated that he had
been in bed when E.P. hit her face on the bathroom doorknob.
6. On October 15, 2012, the DCF worker assigned to the case
went to the mother's home with Detective Jonathan
Griffus. When they arrived at the home, E.P.'s mother,
E.P., and defendant were all present. Detective Griffus took
a photograph of E.P.'s left eye showing a dark bruise.
7. The next day, a pediatric nurse practitioner at
Dartmouth-Hitchcock's Child Advocacy and Protection
Program conducted a head-to-toe examination of E.P. During
that examination, she observed the following: (1) bruising on
E.P.'s upper and lower eyelid, (2) a small bruise on her
forearm; (3) two clusters of petechial bruising (tiny burst
blood vessels) on one side of her neck,  (4) bruising on
the left side of E.P.'s ribs, and (5) a bruise near
8. Detective Griffus testified about his investigation,
including his interview of defendant. As noted, the jury
watched several segments of that interview in which defendant
made statements that were: (1) in conflict with other
evidence, such as his statement that he and his mother had
taken the child to the doctor after one of the injuries, and
(2) inconsistent with other statements he and E.P.'s
mother made about the circumstances surrounding the left-eye
injury to the child.
9. Based on this and other evidence, the State brought four
charges against defendant. Count I charged defendant with domestic
assault, and was predicated on the two black eyes sustained
by E.P. Count II was a second charge of domestic assault,
this time predicated on the single black eye sustained by
E.P. Finally, Count III was a charge of cruelty to a child
between August 1, 2012 and October 16, 2012. The trial court
granted defendant a directed verdict on a fourth charge, a
charge of domestic assault tied to bruises on E.P.'s face
10. Prior to excusing the jury for their deliberations, the
trial court instructed the jury on the law governing the
case. In particular, as to Count III, the trial court gave
the following instruction:
[I]n Count III, [defendant] is charged with the offense of
cruelty to a child. The following are the elements of this
offense which must be proven by the State beyond a reasonable
doubt: that between August 1 and October 16 of 2012, the
defendant: (1) was over the age of sixteen years; (2) had the
care of a child under ten years of age alleged to be E.P.,
date of birth May 31, 2008; (3) caused such child to be
ill-treated in a manner to cause such child unnecessary
suffering; and (4) defendant did so willfully.
The third element is that [defendant] caused [E.P.] to be
ill-treated in a manner to cause [her] unnecessary suffering.
For this third element the terms are self-explanatory, except
for the phrase "unnecessary suffering." That phrase
means physical pain or injury caused to the child that was
not inflicted by reasonable corporal punishment.
And the fourth element is that the defendant did so
willfully. For this fourth element, the State must prove that
defendant caused E.P. to be ill-treated in a manner to cause
her unnecessary suffering willfully, that is consciously and
intentionally, as opposed to accidentally or by mistake.
Your verdicts must represent the considered judgment of each
juror. In order to return a verdict, it is necessary that
each jur[or] agree thereto. Your verdicts must be unanimous.
11. The jury returned a verdict of not guilty on Count I,
arising from the two-black-eyes incident, and guilty verdicts
on Counts II and III.
12. On appeal, defendant argues that: (1) the jury
instruction regarding the child- cruelty count was plain
error because the instruction did not make clear that the
jury had to be unanimous as to which injury defendant caused
to E.P; and (2) multiple incidents throughout the trial
collectively created an undue risk of prejudice warranting a
Instructions and Risk of Non-Unanimity
13. Because defendant did not object to the jury instruction
he now challenges on appeal, we review for plain error. When
reviewing alleged plain error in a jury instruction, we
determine whether there was obvious error affecting the
defendant's substantial rights, thereby resulting in
prejudice to the defendant and seriously affecting the
fairness or integrity of the judicial proceedings. See
State v. Buckley, 2016 VT 59, ¶ 15, ___ Vt.
___, ___ A.3d ___. "[W]e examine the instructions in
light of the record evidence as a whole and determine if any
error would result in a miscarriage of justice."
State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt.
292, 30 A.3d 1285. "This is a very high bar-we find
plain error only in rare and extraordinary cases."
14. Defendant argues that the trial court committed plain
error by failing to instruct the jury as to which of the
injuries it could consider for purposes of making a
child-cruelty determination. According to defendant, the
court's jury instructions failed to assure unanimity
among the jurors as to whether some or all of the alleged
acts occurred in finding him guilty of the child-cruelty
15. In so arguing, defendant relies primarily on State v.
Couture, 146 Vt. 268, 502 A.2d 846 (1985), overruled
in part by State v. Holcomb, 156 Vt. 251, 590 A.2d 894
(1991), and State v. Goyette, 166 Vt. 299, 691 A.2d
1064 (1997). In Couture, the defendant was charged
with a single count of kidnapping even though there were five
separate alleged victims. The trial court instructed the jury
that they could find him guilty if they concluded that he
kidnapped any one of the five possible victims. It did not
instruct, however, that the jury had to be unanimous in its
decision as to which alleged victim or victims were
kidnapped. We found plain error because the charge gave the
jury multiple ways to convict the defendant without ensuring
unanimity as to the victim or victims kidnapped.
Couture, 146 Vt. at 272, 502 A.2d at 849. As
discussed more fully below, however: "[t]o the extent
that Couture is read to hold that the mere
possibility that the jury was not unanimous on an element of
the offense because of the instructions is plain error, its
holding did not survive Holcomb." In re
Carter, 2004 VT 21, ¶ 26, 176 Vt. 322, 848 A.2d 281
("Indeed, Holcomb intentionally rejected
interpreting our prior decisions suggesting that jury
instruction errors that caused the possibility that the
jurors were not unanimous on an element was plain error per
se."). Thus, in addition to the fact that
Couture involved five distinct acts-kidnapping five
different individuals-it cannot support a plain-error claim
that a jury instruction resulted in the mere possibility of a
16. In Goyette, a case in which the defendant was
charged with one count of violating a relief-from-abuse
order, the trial court defined the word "harass" as
engaging in repeated acts that trouble or torment
another but then instructed the jurors that they could find
the defendant guilty if they unanimously agreed that he
committed at least one of the six separate acts alleged by
the State. We noted that "the court's charge did not
assure unanimity among the jurors as to whether some or all
of the other acts occurred, " but reversed at least in
part because "the court's broad definition of
harassment permitted the defendant to be convicted on the
basis of virtually any behavior that bothered the
complainant." Goyette, 166 Vt. at 303-04, 691
A.2d at 1067.
17. On multiple occasions, this Court has emphasized that a
claim of error alleging the failure of the State to make an
election or the trial court to give a specific unanimity
charge in a multiple-acts case is waived on appeal unless the
defendant can demonstrate plain error. The most important
precedent is Holcomb, noted above, in which the
defendant was charged with and convicted of one count of
lewd-and-lascivious conduct with a child, but the evidence
indicated that there were two distinct alleged lewd acts. We
rejected the defendant's unpreserved argument that the
trial court erred by not requiring the State to elect between
the two lewd acts disclosed by the evidence.
Holcomb, 156 Vt. at 255, 590 A.2d at 896; see 5 W.
LaFave et al., Criminal Procedure § 19.3(d), at 336-38
(4th ed. 2015) (stating that although charging of separate
offenses in single count can prejudice defendant by producing
conviction on less than unanimous verdict as to each offense,
"the duplicity defect is viewed as waived" where no
objection is raised until after jury verdict).
18. In doing so, we explicitly rejected a per se plain-error
rule and instead "adopt[ed] the familiar standard of
review for plain error" in which we reverse "only
in rare and extraordinary cases where we find that the
omission in the charge and in the State's actions so
affects the substantial rights of the defendant that we will
notice the error despite lack of proper objection."
Holcomb, 156 Vt. at 255, 590 A.2d at 896; see also
State v. Johnson, 158 Vt. 508, 513, 615 A.2d 132,
135 (1992) ("In general, we must examine the record in
each case, and determine whether the error is so prejudicial
that it undermines confidence in the outcome of the
trial." (quotation omitted)). Applying that standard, we
found no plain error, in part, because the
"[d]efendant's defense did not distinguish between
the two acts, and he was not hampered in preparing a