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State v. Reed

Supreme Court of Vermont

May 12, 2017

State of Vermont
Jeffrey Reed

         On Appeal from Superior Court, Bennington Unit, Criminal Division David A. Howard, J.

          Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender, and William Gardella, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

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

          DOOLEY, J.

         ¶ 1. Defendant appeals from a judgment of conviction, based on a jury verdict, of knowingly giving false information to a law enforcement officer with the purpose of deflecting an investigation from himself, in violation of 13 V.S.A. § 1754(a). Defendant contends the evidence was insufficient to support the verdict. We reverse.

         ¶ 2. The record evidence may be summarized as follows. A witness testified that he was hunting at Kirby Hollow in Dorset on the morning of November 23, 2013, when he heard a gun shot and saw a deer fall about thirty yards away. He did not see who fired the shot. The witness testified that, shortly thereafter, an individual later identified as defendant came down the "blood trail" and "the first thing he said was, 'I'm going to have a heck of a time making this into a three pointer.' " The witness told defendant that the deer was not legal and that he was going to report it, and defendant responded that he would stay with the deer and "[s]ee if the two people that walked by this morning come over to claim the deer." The witness recalled that the deer did not have two points on one side, but "just a little nub." The witness then returned to the check station, called the State police, and waited for the game warden.

         ¶ 3. A State game warden testified that, on the morning of November 23, 2013, he responded to two telephone calls concerning the killing of a spikehorn deer[1] at Kirby Hollow in Dorset. The first call was from the witness who had observed the deer fall, and the second was from defendant, who also later called to report the deer. The warden arrived at a pull-off in Kirby Hollow at about 10:30 a.m. The deer in question was there along with four people: the witness, defendant, and defendant's father and uncle. The warden confirmed that the deer was a spikehorn: it had only two antlers, and no other points. The warden observed that the deer was not yet field dressed and noticed what he believed to be "a clear mark of where someone had cut, or hacked at . . . one of the antlers."

         ¶ 4. The warden spoke first with the witness and then defendant. The warden recalled that he told defendant that he was not under arrest and was free to leave and defendant said he had done nothing wrong and therefore was "fine" talking with the warden. The warden noted that the conversation with defendant lasted no more than five minutes, and that "[i]t was difficult to follow the progression of what [defendant] was saying." The warden asked defendant to return with him to where the deer fell, and defendant continued to recount what had occurred. According to the warden, defendant "kept changing what happened." Defendant said that he saw the deer, walked down to it, and spoke with the witness. Then he said that he heard a shot, sighted the deer through his scope, and had a discussion with the witness. He also said that he had returned to his normal hunting spot-roughly thirty yards uphill from where the deer had fallen-before following the deer and meeting the witness. Defendant also initially mentioned seeing what he believed to be a father and son in camouflage in the woods but said nothing about seeing them again. Later, however, defendant told the officer that, while waiting with the deer after the witness left to call the police, an individual in camouflage walked up, looked at the deer, and walked away.

         ¶ 5. The warden testified that he asked defendant about the deer's antlers. Defendant at first said he did not know "how they got cut off" but then "maybe even blamed [the witness]." He then indicated that he "would admit to the antler point, " explaining that he had "laid [a one-inch knife blade] on the antler point, and the antler point fell off." Defendant did not say where the broken antler tip went, but he walked over to where the deer had been lying and "rustled around in the leaves a little bit" without finding anything. The warden acknowledged that it was not possible for a deer antler to break off "simply by laying a piece of metal against it."

         ¶ 6. The warden then inspected defendant's gun; he smelled gunpowder and observed gunpowder residue in its chamber. Defendant told the warden that he had fired the gun the night before but not on that day. Defendant also offered one of the bullets he was using that day; it did not match the bullet later recovered from the deer. Back at the pull-off, the deputy game warden inspected the guns belonging to defendant's father and uncle and observed that they had not been fired recently.

         ¶ 7. After informing defendant that he was free to leave, the warden and his deputy returned to the spot where the deer had fallen and noticed two "brown plastic shopping bag[s]" tied to trees. Just below those bags were salt licks. The first was roughly five to ten yards from the spot where the deer had fallen and the second was roughly thirty yards from defendant's normal hunting spot. In a follow-up conversation with defendant several weeks later, defendant told the warden that the salt lick "wasn't anything to him." The warden also asked defendant how often he hunted in the area. Defendant initially responded that he had hunted there numerous times but later said he had hunted there only on two or three occasions some weeks before the deer was shot. Defendant later mentioned that there had been a lot of deer in Kirby Hollow the day before the deer was shot.

         ¶ 8. The State charged defendant with three offenses: (1) a violation of 13 V.S.A. § 1754(a) by knowingly giving false information to a law enforcement officer with the purpose of deflecting an investigation from himself; (2) a violation of 10 V.S.A. § 4747 by taking big game by the aid of a salt lick; and (3) a violation of 10 V.S.A. § 4781 by possessing big game taken by an illegal device, in this case a salt lick. The charging information for the first count contained only the statutory language. The warden's supporting affidavit stated that "defendant kept adding and changing facts" and "changing pieces of the story" but did not otherwise specify which information he gave the officer was false and intended to deflect the investigation from himself.

         ¶ 9. At the close of the State's case, defendant moved for judgment of acquittal, arguing that "as much as the State wants to say that it's three different stories . . . it could all be part of the same story [and] . . . is not internally inconsistent." The State maintained that defendant "simply gave false information to deflect the investigation, and he gave multiple stories about what had occurred." The court denied the motion. The defense presented no additional evidence. In its closing argument, the State emphasized that defendant "told multiple versions" of what he did immediately after the deer was shot, of what took place after the witness left to call the warden, of how the cut marks appeared on the antlers, and of how frequently he had hunted in the area. The only specific statements that the prosecutor expressly characterized as false, however, were those concerning the antlers, which he also asserted were made "to deflect the investigation because that was an illegal buck."[2] The jury found defendant guilty of the first count and not guilty of the other two. The court later sentenced defendant to a $300 fine. This appeal followed.

         ¶ 10. Defendant contends the evidence was insufficient to demonstrate that he made a knowingly false statement with the purpose of deflecting the investigation from himself. "We review de novo a motion for judgment of acquittal." State v. Vuley, 2013 VT 9, ¶ 30, 193 Vt. 622, 70 A.3d 940. The question on appeal is whether the State's evidence could fairly and reasonably support a jury finding of guilt beyond a reasonable doubt. Id. Because we cannot know which of the three inconsistent statements presented by the State the jury found knowingly false, or whether all jurors found the same statement or statements knowingly false, we can affirm defendant's conviction only if every statement meets each element of the statute. In this case, none of the three inconsistent statements satisfies the last statutory element.

         ¶ 11. We begin with two preliminary points concerning the statutory wording and the specific theory on which the case against defendant was tried.

         ¶ 12. First, defendant was convicted of violating 13 V.S.A. § 1754(a), a misdemeanor with a maximum punishment of a year in jail or a $1000 fine or both. The statute provides:

(a) A person who knowingly gives false information to any law enforcement officer with purpose to implicate another or deflect an investigation from the person or another person shall be imprisoned for not more than one year or fined not more than $1, 000 or both.

         In this case, defendant was charged with giving false information to a law enforcement officer with the purpose of deflecting an investigation from himself, one of the two alternative mental elements in the statute-the other being an intent to implicate another person. In State v. Albarelli, 2016 VT 119, ¶ 33, __ Vt. __, __ A.3d __, we explained that the statute contains three essential elements: (1) knowingly giving false information, (2) to a law enforcement officer, (3) with the purpose to deflect an investigation from the person or another. This case is about the third element.

         ¶ 13. Application of the statute to the facts of this case begins with the charge. As noted, the information recited only the statutory language, relying upon the supporting affidavit of the warden to provide the necessary factual allegations. See V.R.Cr.P. 7(b) (stating information must contain "essential facts constituting the offense charged"); State v. Brown, 153 Vt. 263, 272, 571 A.2d 643, 648 (1989) (noting that to determine information is sufficient it must be read with affidavit). The affidavit did not specify which statements given by defendant were false. It stated that defendant "changed his story a number of times and it was difficult to follow, " "kept adding and changing facts, " "kept changing pieces of the story, " and noted that one statement during a final interview "was different than what he had just told us less than [ten] minutes before and also different than when we first met him at the scene."

         ¶ 14. The State's evidence, consisting largely of the warden's testimony, was consistent with the affidavit, again providing no specific identification of what information the State claimed was false. The prosecutor's closing argument to the jury amplified that testimony, enumerating five subject areas of inconsistency. In addition, the prosecutor identified for the first time what was allegedly false, characterizing all of the defendant's statements concerning the antlers as "false information."[3] The ensuing jury instructions gave no explanation about how the jury was to determine whether defendant gave false information. They did not say, for example, whether the jury could find that any of the statements given to the warden would meet the element. The instructions did not say that the statement must relate to the antlers. Nor did they specify which of defendant's statements with respect to the antlers the jury must find was false.

         ¶ 15. Second, the statute does not assign criminal responsibility to "inconsistent" statements to law enforcement officers. Instead, it assigns criminal responsibility to knowingly false statements. It is entirely possible that two statements made by the same person can be inconsistent without either being knowingly false, and, as the prosecutor essentially argued, two statements can be inconsistent with both being false. Our pleading rules require the State to present the essential facts that show each element of the crime was met, see V.R.Cr.P. 7(b), but the State failed to do so with respect to the element of a knowingly false statement. The affidavit supported the State's claim that the statements were inconsistent but failed to show which, if any, was false.

         ¶ 16. As we have stated on numerous occasions, this error becomes one of constitutional magnitude if a case is presented to the jury with multiple possible statements meeting an element of the offense and no specification of which statement all the jurors must find was knowingly false. As we explained in State v. Gilman:

Defendant correctly cites the general rule that where there is evidence of more than one act that would constitute the offense charged, the State must specify the act for which it seeks a conviction. The required election protects the defendant from the possibility that part of the jury will base its decision to convict on evidence of conduct different from that considered by the rest of the jury. Such a decision would deprive the defendant of his right to a unanimous verdict based on a single offense.

158 Vt. 210, 215, 608 A.2d 660, 664 (1992) (citations omitted). This requirement was clearly violated here.

         ¶ 17. Although the above is primarily context because defendant has not challenged the jury's verdict on this ground, context is important because of its impact on the argument that is preserved and raised here. The deficiency is in the knowingly-false-information element, but it carries over into the purpose element. Even if we look only at the statements identified by the prosecutor in closing argument as false[4]-that is, the statements with respect to the antlers-there are statutory construction issues with respect to the deflection element for each of them. Because we do not know what statement any particular juror found to be knowingly false, we can affirm only if we can conclude that the deflection element is met with respect to all of the statements. The record here does not allow such a conclusion.

         ¶ 18. The most obvious problem is with the second statement-that the witness broke off the antler piece. This statement may appear to support the element that defendant acted to deflect the investigation from him because he blamed another person. But the statement directly and explicitly invokes the alternative purpose element in the statute that defendant intended "to implicate another, " an element the State did not charge. Unless we construe the statute as allowing the State to prosecute a person twice, under each with an alternative purpose element, we cannot affirm a conviction for acting ...

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