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State v. Carter

Supreme Court of Vermont

May 5, 2017

State of Vermont
v.
Ronald Carter, Jr.

         On Appeal from Superior Court, Orleans Unit, Criminal Division Howard E. Van Benthuysen, J.

          Jennifer L. Barrett, Orleans County State's Attorney, Newport, and David E. Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

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

          DOOLEY, J.

         ¶ 1. Defendant Ronald Carter was convicted of domestic assault, 13 V.S.A. § 1042, as a lesser included offense of first degree aggravated domestic assault, 13 V.S.A. § 1043(a)(1). He appeals, arguing that domestic assault is not a lesser included offense of aggravated domestic assault when defendant is charged with inflicting serious bodily injury by strangulation. We disagree that the inclusion of the lesser included offense was improper and affirm.

         ¶ 2. On July 21, 2015, complainant called 911 to report that defendant assaulted her while they were living together in a tent. State police responded to the call. The trooper assigned to investigate complainant's report noticed red marks around complainant's neck and faded bruising around one of her eyes. Complainant told the trooper that she was sleeping in the tent she shared with defendant when defendant entered the tent, shouted at her, and then climbed on top of her and began choking her by placing his hands around her neck. She also said that the bruising around her eye was a result of defendant punching her about a week earlier.

         ¶ 3. The State charged defendant with one count of first degree aggravated domestic assault in violation of 13 V.S.A. § 1043(a)(1) for recklessly causing serious bodily injury to complainant, a household member, and one count of second degree aggravated domestic assault in violation of 13 V.S.A. § 1044(a)(2)(B) for recklessly causing bodily injury to complainant, a household member, while having a prior conviction for domestic assault. The first count related to the alleged choking and the second to the earlier alleged assault that resulted in bruising around complainant's eye. At the jury trial that followed, complainant repeated the allegations she had made to the trooper who initially responded to her 911 call. With respect to the first count, she testified that defendant choked her for thirty seconds to one minute, it caused her pain, she felt dizzy and out of breath, she thought she was going to lose consciousness, and she was afraid defendant was going to kill her.

         ¶ 4. At the charge conference, the State asked the court to instruct the jury that it could convict defendant of domestic assault in violation of 13 V.S.A. § 1042 as an alternative lesser included offense of the first degree aggravated domestic assault count. The court agreed and instructed the jury that if it did not find defendant guilty of first degree aggravated domestic assault under 13 V.S.A. § 1043(a)(1) by recklessly causing complainant serious bodily injury, it could alternatively find defendant guilty of domestic assault under 13 V.S.A. § 1042 by recklessly causing complainant bodily injury. The jury found defendant not guilty of first degree aggravated domestic assault, but guilty of the lesser included offense. The jury found defendant not guilty on the second count.

         ¶ 5. On appeal, defendant argues that the State charged him with first degree aggravated domestic assault by strangulation, that as a matter of law strangulation causes serious bodily injury, and that the jury therefore could not convict defendant of the offense of domestic assault which requires a finding of only bodily injury. On this basis, defendant argues that he should be acquitted of all charges, the offenses initially charged under 13 V.S.A. § 1043(a)(1) and 13 V.S.A. § 1044(a)(2)(B) because the jury acquitted him of those charges and the lesser included offense because he could not have committed that offense. As we detail below, we disagree with defendant's characterization of the charges against him. We do not reach other arguments.

         ¶ 6. The issue on appeal is whether the court erred by including in the jury instructions the third count based on the lesser included offense. We review jury instructions "as a whole, " considering the language used by the court in context. State v. Levitt, 2016 VT 60, ¶ 13, __ Vt. __, 148 A.3d 204. Here, defendant concedes that he made no objection to the jury instructions after they were delivered to preserve a claim of error on appeal. In order to preserve a claim of error in a jury instruction, a party must object to the instruction "before the jury retires to consider its verdict, stating distinctly the matter to which objection is made and the ground of the objection." V.R.Cr.P. 30; see also State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992) (explaining that "failure to object to an instruction after it is given to the jury is considered a waiver of any error even if the substance of the objection is made known before the jury charge"). Where there has been no objection to the instruction in the trial court as required by Vermont Rule of Criminal Procedure Rule 30, we review only for plain error. State v. Vuley, 2013 VT 9, ¶ 40, 193 Vt. 622, 70 A.3d 940; V.R.Cr.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). When reviewing jury instructions for plain error, we consider the instructions against the background of the entire record. State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292');">190 Vt. 292, 30 A.3d 1285. We will find plain error only if there is an obvious error affecting substantial rights and resulting in prejudice to the defendant, and which must be corrected to protect "the fairness, integrity, or public reputation of judicial proceedings." Id.

         ¶ 7. To understand defendant's argument, we first examine the elements of the crime for which defendant was initially charged and then the instructions to the jury with respect to those elements. Thereafter, we examine the elements of the lesser included offense and the jury instructions with respect to those elements.

         ¶ 8. Defendant was charged under 13 V.S.A. § 1043(a)(1), according to which "[a] person commits the crime of first degree aggravated domestic assault if the person . . . attempts to cause or willfully or recklessly causes serious bodily injury to ...


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