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State v. Dow

Supreme Court of Vermont

August 19, 2016

State of Vermont
Miles Dow

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

          William H. Sorrell, Attorney General, David Tartter, Assistant Attorney General, Montpelier, and Tracy Kelly Shriver, Windham County State's Attorney, Brattleboro, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. Following an altercation with his wife and an ensuing conflict with police, defendant was charged with several counts, related to his conduct both towards his wife and to the responding police officers. During trial, based on improper questions from defense counsel, the court declared a mistrial on all counts involving defendant's wife (the complainant). The trial continued, and the jury found defendant guilty of aggravated assault on a law enforcement officer with a deadly weapon and attempted simple assault by menace on a law enforcement officer. Defendant appealed, arguing there was insufficient evidence, the jury instructions were faulty, and his convictions violated the Double Jeopardy Clause. Defendant also moved to dismiss the charges for which a mistrial was granted, arguing that the grounds for a mistrial were insufficient and jeopardy had attached. The court denied this motion, but granted defendant's request to bring an interlocutory appeal. We have consolidated defendant's direct and interlocutory appeals. Defendant's aggravated-assault conviction is affirmed, his simple assault conviction is vacated, and the court's denial of the motion to dismiss is reversed.

         ¶ 2. The following testimony was presented at trial. Defendant was angry because he found out that the complainant had posted a revealing photograph of herself on the internet. On March 29, 2014, they were arguing and defendant began yelling and knocking items off of shelves. The complainant was frightened and called 911. Two police officers came to the house, and the complainant let them into the kitchen. Defendant was in a bedroom down the hall. The officers called to defendant to come out and talk to them. Defendant responded no and started yelling at them to get out of the house. One officer testified that defendant's voice was "aggressive" and in response the officer removed his Taser. When the officers went down the hallway, defendant came out with a knife, running down the hallway. One officer described defendant's weapon as a machete and stated that defendant was coming down the hall in an angry and determined manner. The officer stated that defendant had the weapon in his hand half-raised and he was fearful and felt threatened.

         ¶ 3. One officer drew his firearm, and the two began to look for cover. They left the house, and defendant followed them out onto the deck. The officers instructed defendant to drop the knife, but defendant held onto it and went back into the house. The complainant was left in the house with defendant, but exited a few seconds later when defendant went to the bedroom. Defendant then appeared on the porch. He was angry and yelling for police to shoot him. Defendant went back inside and then appeared again with pills and a glass of water. He took a large number of white pills. Defendant eventually agreed to come out of the house based on a promise that he could see the complainant. Police entered the house, and defendant was taken away by an ambulance.

         ¶ 4. Following this incident, defendant was charged with seven criminal counts.[1] Five of the charges involved defendant's actions towards the complainant: second-degree aggravated domestic assault, reckless endangerment, interference with access to emergency services, second-degree unlawful restraint[2], and attempted simple assault by menace. Two charges related to defendant's actions towards law enforcement: aggravated assault with a deadly weapon on a police officer and attempted simple assault on a police officer by menace.

         ¶ 5. During trial the court granted the State's request for a mistrial based on defense counsel's questioning of the complainant during cross-examination. The court concluded that the questions were not relevant to any issue and were prejudicial to the State's case. The court determined that the impact on the jury could not be ascertained and granted a mistrial on the charges that involved the credibility of the complainant. The trial proceeded on the remaining two counts, and the jury returned a guilty verdict on those counts. Following trial, defendant filed a motion seeking to bar retrial of the mistried counts, arguing that jeopardy had attached. The court denied the motion, but granted defendant's request to bring an interlocutory appeal.

         ¶ 6. Defendant now appeals both his convictions and the denial of his motion to dismiss. As to the convictions, he contends (1) there was insufficient evidence to support the convictions; (2) the court erred in instructing the jury; (3) the court erred in admitting evidence of defendant's prior bad acts; and (4) the two convictions are for the same conduct and violate double jeopardy. In his interlocutory appeal, defendant argues that the court erred in granting a partial mistrial, as well as that double jeopardy precludes retrial of the remaining counts.

         I. Acquittal

         ¶ 7. Defendant first argues that the State did not present sufficient evidence to demonstrate the specific-intent element required to prove aggravated assault with a deadly weapon and attempted simple assault. This Court reviews the denial of a motion for acquittal de novo. State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. In reviewing whether a motion for acquittal was properly granted, this Court considers "whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (mem.) (quotation omitted). A motion for judgment of acquittal will be granted "only if the State has failed to put forth any evidence to substantiate a jury verdict." Id.

         ¶ 8. Defendant's arguments focus on the specific intent required for the aggravated- assault and attempted-simple-assault charges. Defendant was charged with aggravated assault, which the statute defines as when a person "is armed with a deadly weapon and threatens to use the deadly weapon on another person." 13 V.S.A. § 1024(a)(5). This is a specific-intent crime, and the State must prove that "defendant subjectively intended to threaten the individual with the deadly weapon." State v. Cahill, 2013 VT 69, ¶ 10, 194 Vt. 335, 80 A.3d 52; see State v. Bourn, 2012 VT 71, ¶ 11, 192 Vt. 270, 58 A.3d 236 (explaining that aggravated assault is specific-intent crime). Similarly, to prove the intent element of attempted simple assault, 13 V.S.A. § 1028, the State was required to prove defendant intended to commit the assault. See State v. Devoid, 2010 VT 86, ¶ 10, 188 Vt. 445, 8 A.3d 1076 (explaining that attempt requires intent to commit crime and overt act to carry out intent). "Intent is rarely proved by direct evidence; it must be inferred from a person's acts and proved by circumstantial evidence." State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988).

         ¶ 9. Defendant moved for a judgment of acquittal at the end of the State's case and renewed his request in a post-judgment motion. The court denied the motions, concluding that the facts were sufficient for the jury to infer defendant's intent.

         ¶ 10. On appeal, defendant asserts that his intent was to harm only himself and points to several facts in support. While some facts could support a finding that defendant harbored an intent to harm himself at certain times during the incident, this does not preclude a finding by the jury, based on other evidence, that defendant also intended to threaten the officers at the same or at different times during the incident. Here, the facts when viewed in the light most favorable to the State are as follows. After the police officers arrived at defendant's house, defendant was in a bedroom and yelling at the officers to leave. Defendant then came running down the hallway towards the officers in a determined manner. He was carrying a knife, described by one officer as a machete, and the knife was in a half-raised position. Defendant was angry, aggressive, and yelling. One officer was fearful and felt threatened. This circumstantial evidence, particularly the fact that defendant was angrily running down the hall towards the officers carrying a knife, was sufficient for the jury to conclude beyond a reasonable doubt that defendant acted with the specific intent to threaten the officers. See Cahill, 2013 VT 69, ¶ 12 (explaining that communication of intent through actions and surrounding circumstances sufficient to support verdict).

         II. Jury Instructions

         ¶ 11. Next, defendant argues that the court erred in instructing the jury on the intent element of the charges. The court generally instructed the jury that the State must prove defendant's mental state beyond a reasonable doubt, and that this intent could be proven by "circumstantial evidence." The court explained:

It is not the secret intent of the defendant but that intent which can be determined from his conduct and all the other circumstances which surround it; that is, you may consider all the surrounding facts and circumstances including the defendant's words and actions, any relevant history in evidence and determine his mental state by inference from those surrounding facts and circumstances.

         ¶ 12. On appeal, defendant argues that the court erred by instructing the jury not to consider defendant's "secret intent" because in doing so the court failed to make it clear that the crimes alleged required the State to prove defendant's subjective specific intent. "We review jury instructions in their entirety to determine if they sufficiently guided the jury and did not have a prejudicial impact on their deliberations." State v. Jones, 2008 VT 67, ¶ 23, 184 Vt. 150, 955 A.2d 1190.

         ¶ 13. Here, we conclude that the instructions as a whole "breathe[d] the true spirit and doctrine of the law" and therefore conclude there are no grounds for reversal. Id. The instructions, while referring to defendant's "secret intent, "[3] also provided detail about the intent elements for both offenses. In those specific instructions, the court explained that the State was required to prove defendant's subjective specific intent. As to the crime of aggravated assault with a deadly weapon, the court explained that the State was required to prove beyond a reasonable doubt that "the defendant, by words or actions or both, threatened to use the deadly weapon on a police officer, " and "intended to threaten the law enforcement officer." Similarly, for the attempted simple assault count, the court instructed the jury that the State had to prove that defendant "intended to, that is, ha[d] the conscious objective of, making Officer Hammack afraid he was going to cause Officer Hammack immediate serious bodily injury."

         ¶ 14. These detailed instructions distinguish this case from those in which we have concluded the instructions were insufficient. In State v. Bourn, the trial court failed to give any instruction requiring "subjective moral culpability." 2012 VT 71, ¶ 16. In contrast, here, even though the court did not use the words "specific intent, " the instruction adequately explained the required subjective moral culpability by stating that the jury was required to find defendant actually intended to threaten the officers. In addition, in State v. Cahill, this Court reversed based on a jury instruction that failed to require the jury to determine the defendant's subjective intent and instead suggested that the necessary mens rea could be arrived at "by the objective perception of a reasonable observer." 2013 VT 69, ¶ 19. The court made no reference to an objective intent that could have confused the jury and led to an improper evaluation of the intent element. Given the detailed instructions on the intent requirement, we conclude that the instructions as a whole provided an accurate statement of the law. See State v. Dann, 167 Vt. 119, 132, 702 A.2d 105, 113 (1997) (explaining that even if instructions were not "as well-worded as we or the appellant might desire, we will not reverse a conviction for error in the instructions" as long as instructions as a whole provided "true spirit of the law" and jury was not misled).

         ¶ 15. Defendant also claims that the court erred in failing to define the element of "threaten" in the jury instructions. For the aggravated-assault-with-a-deadly-weapon charge, the court instructed that the State was required to prove that defendant "threatened to use the deadly weapon on a police officer." The instructions did not specifically define "threaten." During the charge conference, defendant argued that the court should define threaten as "to express one's intent to harm or kill someone." The court rejected the suggestion as confusing because the charge was that defendant intended to threaten the officer, not that he intended to harm anyone. The court further expressed that this was not a difficult concept and no further definition was required. Defendant renewed his objection to this instruction before the jury retired.

         ¶ 16. We conclude that the court did not err in denying defendant's request to include his proffered definition of threaten. In charging the jury, the trial court "has a duty to avoid confusing the issues by 'over definition, ' particularly when the word in question is one of plain meaning and may well be understood by its context." State v. Audette, 128 Vt. 374, 378, 264 A.2d 786, 789 (1970). Therefore, the court "may decline to enlarge upon or redefine a phrase or a term whose meaning may be taken to be plain and of common understanding." Id. at 379, 264 A.2d at 789. Here, the court did not err in declining to instruct the jury that "threaten" means "to express one's intent to harm or kill someone." As the trial court explained, there was a danger that including the definition proffered by defendant would confuse the jury as to the element of intent.[4]

         III. Prior Bad Acts

         ¶ 17. Next, defendant claims that the court erred in admitting prior bad acts of defendant. Prior to trial, the State gave notice that it intended to introduce into evidence prior bad acts of defendant, including three prior domestic assault convictions and threatening statements made to police shortly before the event. Defendant challenged the admission of any of this evidence. The court excluded defendant's statements to law enforcement. As to the prior domestic assault convictions, the court ruled that that evidence could be admitted as context evidence to explain the behavior of both defendant and the complainant, and that they were also admissible to demonstrate the mental states of defendant and the complainant in relation to the unlawful-restraint charge.

         ¶ 18. In compliance with this order, at trial, during the complainant's direct testimony she described two prior incidents involving defendant. She stated that in 2004 she was out with friends from work when defendant arrived and began waving a gun around. He slapped her with enough force to knock her down. She also stated that in 2008 she got in the middle of an argument between defendant and their son and defendant pulled her hair and knocked her over. Police responded to both incidents.

         ¶ 19. On appeal, defendant claims that the court erred in admitting this evidence. Under Vermont Rule of Evidence 404(b), evidence of "other crimes, wrongs, or acts" is not admissible to prove a person's character or propensity to commit a crime, but can be admitted to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." With allegations of domestic abuse, prior history of abuse may be admitted to provide "situational context" to a factual scenario that might otherwise seem "incongruous and incredible to a jury." State v. Sanders, 168 Vt. 60, 62, 716 A.2d 11, 13 (1998) (quotation omitted). The trial court's decision regarding whether the evidence is relevant under Rule 404(b) and more probative than prejudicial under Vermont Rule of Evidence 403 is entitled to deference. See State v. Jones, 2008 VT 67, ¶ 14, 184 Vt. 150, 955 A.2d 1190 (stating that review of court's decision to admit bad-act evidence is "only for abuse of discretion").

         ¶ 20. On appeal, defendant contends that the evidence was not admissible for context, and, even if the prior acts were admissible under Rule 404(b), the evidence should have been excluded under Rule 403 because its probative value was outweighed by the danger of unfair prejudice.

         ¶ 21. We need not reach either question because we conclude that any error in admitting the evidence was harmless. See V.R.Cr.P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."). An error is harmless "if, absent the alleged error, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error." State v. Wright, 154 Vt. 512, 519-20, 581 A.2d 720, 725 (1989) (quotation omitted). The strength of the offending evidence and of the case absent the evidence are the two most important factors "employed in our inquiry." State v. Brooks, 2013 VT 27, ¶ 27, 193 Vt. 461, 70 A.3d 1014.

         ¶ 22. Here, the evidence to which defendant objects had no evidentiary import to the charges submitted to the jury. The evidence was about defendant's prior acts towards the complainant and did not relate to the charges committed against the officers. In addition, the State did not rely on this evidence to make its case because the State's case was sufficiently supported by the testimony of the arresting officers. Further, because the prior acts in this case were admitted as relevant to the charges involving the complainant, and those charges were taken from the jury's consideration by the mistrial ruling, the court instructed the jury not to consider the evidence in its deliberation.[5] In its instructions to the jury, the court reminded the jury that while it had heard "evidence regarding the history of the relationship between [defendant] and [the complainant], " that history was not relevant to the charges before them. We presume that the jury followed the court's instruction. Id. ¶ 29 (stating that jury is presumed to follow court's instructions). Given that the evidence had little relevance to the charges, the State's case did not depend on it, and the court instructed the jury not to consider it, we conclude that any error in admitting the evidence was harmless beyond a reasonable doubt. See id. ¶ 30 (concluding that any error in admitting evidence harmless where evidence of limited relevance, State's case supported by other evidence, and jury instructed to limit its use); State v. Williams, 2010 VT 77, ¶ 16, 188 Vt. 405, 9 A.2d 315 (holding that admission of prior incidents did not cause unfair prejudice where court specifically instructed jury not to consider evidence in assessing whether defendant committed assault).

         IV. Double Jeopardy of Two Assault Convictions

         ¶ 23. Defendant argues that his convictions for aggravated assault with a deadly weapon and attempted simple assault by physical menace violated the Double Jeopardy Clause of the Federal Constitution. U.S. Const. amend. V.

         ¶ 24. Defendant did not raise this claim in the trial court. On appeal, the State contends that by failing to raise the issue below, defendant waived it. The State relies on State v. Callahan, which cited federal caselaw for the proposition that a double-jeopardy claim not raised pretrial or at trial is waived. 155 Vt. 571, 573, 587 A.2d 970, 972 (1991) (citing United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984) (holding that double-jeopardy claim waived when raised for first time on appeal)). Since Callahan, however, the U.S. Supreme Court has clarified the difference between "forfeited-but-reversible error" and "waiver" of an error. United States v. Olano, 507 U.S. 725, 732-33 (1993). Forfeiture results from "the failure to make the timely assertion of a right, " and those errors are reviewed under a plain-error standard. Id. at 733. Waiver results from "the intentional relinquishment of abandonment of a known right" and prevents any appellate review of a claim under the right. Id. (quotation omitted). Based on Olano, federal courts have held that where a defendant simply fails to assert a double-jeopardy claim, rather than affirmatively waiving it, he has forfeited his right and his claim is entitled to plain-error review. United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (discussing impact of Olano, abrogating Bascaro, and holding that double-jeopardy claim not asserted before trial court is forfeited not waived and defendant is entitled to plain-error review); accord United States v. Hernandez-Guardado, 228 F.3d 1017, 1028-29 (9th Cir. 2000); United States v. Branham, 97 F.3d 835, 842 (6th Cir. 1996); United States v. Penny, 60 F.3d 1257, 1261 (7th Cir. 1995).

         ¶ 25. We conclude that defendant's claim was forfeited, not intentionally waived, and therefore, that we can review the claim.[6] Because defendant failed to raise it below, however, our review is for plain error and we will reverse only if there was an error that seriously affected substantial rights and had an unfair prejudicial impact on the outcome of trial. In re Carter, 2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281.

         ¶ 26. The Double Jeopardy Clause states that no person may "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision prohibits subsequent prosecutions for the same offense and the imposition of multiple punishments for the same offense. Wiley, 2007 VT 13, ¶ 8. The Legislature may, however, proscribe conduct by more than one criminal statute, and it is question of legislative intent whether a conviction and sentence may be had under each statute. Id. In evaluating whether two offenses are the same for double jeopardy purposes, we consider whether each statutory provision requires proof of a fact that the other does not. Id. "If this test is not satisfied, we must presume that the Legislature did not intend to authorize the imposition of cumulative punishments for the two offenses." State v. Breed, 2015 VT 43, ¶ 17, 198 Vt. 574, 117 A.3d 829.

         ¶ 27. To prove aggravated assault with a deadly weapon, the State was required to prove that: (1) defendant was armed with a deadly weapon; (2) he intended to threaten to use that deadly weapon on a law enforcement officer; and (3) the law enforcement officer was performing a lawful duty at the time. To prove the attempted simple assault, the State was required to prove: (1) defendant intended to put the officer in fear of imminent serious bodily injury; (2) defendant took physical action to accomplish his goal; (3) defendant's actions would have placed the officer in fear of imminent serious bodily injury if defendant had not been interrupted; and (4) the police officer was performing a lawful duty.[7]

         ¶ 28. We have held that, as charged and instructed here, simple assault is a lesser-included offense of aggravated assault with a deadly weapon. State v. Bolio, 159 Vt. 250, 254, 617 A.2d 885, 887 (1992). A lesser-included offense is one that is "composed of some, but not all, of the elements of the greater offense and does not have an element included in the greater offense." Id. at 252, 617 A.2d at 886 (quotation omitted). Therefore, by definition a defendant cannot be convicted of both the greater and lesser-included offenses. The State has presented no reason why the two convictions in this case do not violate double jeopardy principles. Therefore, we conclude that conviction for both offenses violates the Double Jeopardy Clause. We also conclude that allowing the two convictions to stand denies defendant a substantial right and is plain error.

         ¶ 29. Defendant asserts that the proper remedy is to vacate the conviction for the greater offense. Our case law is clear that the State has the right to choose which charge is to be dismissed. See State v. Gagne, 2016 VT 68, ¶ 44 n.3, ___ Vt. ___, ___ A.3d ___ ("The State is free to exercise its prosecutorial discretion to request that we vacate the greater conviction."); State v. Cahill, 2013 VT 69, ¶ 22 ("On remand, the State must move to vacate one of the convictions at its election."); State v. Rooney, 2011 VT 14, ¶ 34, 189 Vt. 306, 19 A.3d 92 (recognizing that when an action violates two criminal statutes, State has discretion to prosecute under either, as long as it does not "arbitrarily discriminate against an individual or class of individuals").

         ¶ 30. Here, as in Gagne, the State has "clearly requested" that, in the event that we determine that both convictions could not stand, that we affirm the greater conviction. Gagne, 2016 VT 68, ¶ 44 n.3. Therefore, we vacate the attempted simple assault conviction.

         V. Mistrial

         ¶ 31. Defendant's next set of arguments involve the court's decision to grant a partial mistrial on counts related to the credibility of the complainant. Defendant contends that the court abused its discretion in granting a partial mistrial over his objection. He argues that no mistrial was warranted and that it was further error to effectively sever the offenses. Finally, he argues that the court erred in denying his subsequent motion to dismiss.

         A. Factual Background

         ¶ 32. The court's mistrial ruling stemmed from questions addressed to the complainant. On direct examination, the complainant testified that during her marriage to defendant, he had been "a little demanding, very jealous, [and] kind of controlling, " and she provided examples of some of this controlling behavior. On cross-examination, defense counsel sought to introduce an exhibit containing the complainant's ...

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