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State v. Nicholas

Supreme Court of Vermont

August 19, 2016

State of Vermont
v.
Kerri Nicholas

         On Appeal from Superior Court, Windham Unit, Criminal Division David Suntag, J.

          Kerry 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, JJ.

          DOOLEY, J.

         ¶ 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 Families (DCF).

         ¶ 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, [1] (4) bruising on the left side of E.P.'s ribs, and (5) a bruise near E.P.'s bellybutton.

         ¶ 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.[2] 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 and abdomen.[3]

         ¶ 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 reversal.

         I. Jury 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." Id.

         ¶ 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 charge.

         ¶ 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 non-unanimous verdict.

         ¶ 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 ...


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