Court On Appeal from Superior Court, Chittenden Unit,
Criminal Division February Term, 2017 A. Gregory Rainville,
Gregory Nagurney, Deputy State's Attorney, Montpelier,
Allison N. Fulcher of Martin & Associates, Barre, for
PRESENT Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Hassimiou Bangoura appeals his conviction for driving
under the influence (DUI), second offense, following a jury
trial. He argues that his conviction must be reversed because
of what he claims was error in how the trial court
established the existence of a predicate DUI offense. We
2. On December 13, 2014, defendant was arrested for DUI on
Interstate 89 in South Burlington, in violation of 23 V.S.A.
§ 1201(a)(2). He was subsequently charged with DUI,
second offense, based on that incident and an alleged earlier
conviction for a DUI in 2009, pursuant to 23 V.S.A.
§§ 1201(a)(2), 1210(c).
3. Defendant had a bifurcated jury trial in April 2016. In
the first stage of the trial, the question before the jury
was whether defendant drove under the influence on December
13, 2014. Had the jury reached the second phase of the trial,
it would have been presented with the question of whether or
not defendant had any prior DUI convictions that would have
exposed him to an enhanced sentence. Id. §
1210(c) (providing that person who is convicted of second
violation of § 1201 shall be fined up to $1500, subject
to prison term of up to 2 years, and required to either
perform at least 200 hours of community service or serve 60
consecutive hours of sentence of imprisonment); see also
State v. Cameron, 126 Vt. 244, 249, 227 A.2d 276,
279 (1967) (outlining procedural requirements for bifurcated
trial "[w]hen the prior status of the accused is denied
and the accused has been convicted of the principal
offense"). While the jury was deliberating the DUI
charge, however, defendant's counsel stipulated to
defendant's prior DUI conviction. Defendant was present
when the attorney made the stipulation, and there was no
objection. In response to the stipulation, the court informed
the parties that "we don't have to bifurcate the
trial, have the jury deliberate on the issue of whether
it's a DUI II or not, then." Again, neither
defendant nor his counsel objected to the court's
4. The jury returned a verdict of guilty of DUI in violation
of 23 V.S.A. § 1201(a)(2). At that point, the State
moved to admit a certified copy of the defendant's prior
DUI conviction, and defendant's counsel stipulated to its
admission. Defendant did not object. As a result, the court
did not submit the issue of the predicate DUI conviction to
the jury, nor did it make a finding that the stipulation had
established that element of the offense of DUI, second
offense beyond a reasonable doubt. Instead, the court entered
an adjudication of guilt for the DUI second offense and set
sentencing for a later date. Following defendant's
sentencing, he appealed to this Court.
5. On appeal, defendant raises two grounds for reversal.
First, he argues that his counsel's stipulation to his
prior DUI conviction deprived him of his right to a jury
determination of that issue, and he argues that the court
should not have accepted the stipulation because any waiver
of his right to a jury trial had to be made by him personally
rather than through counsel. Second, defendant contends that
the court was required to find that the stipulation proved
the existence of a predicate DUI beyond a reasonable doubt,
and because the court did not make that finding, his
conviction must be reversed because not all of the elements
of DUI, second offense were proven to the requisite standard.
Defendant does not dispute the existence of the predicate DUI
6. Because defendant did not preserve either of his
objections in the trial court, we review only for plain
error. See V.R.Cr.P. 52(b). Vermont Rule of Criminal
Procedure 52(b) "states the general proposition that an
appellate court will notice errors not properly raised before
it if they are obvious and affect the fair administration of
justice or defendant's constitutional rights. Exercise of
the power is exceptional but may be on the court's own
motion . . . ." Reporter's Notes, V.R.Cr.P. 52(b).
Plain error exists when the asserted error: (1) is
"obvious"; (2) "affects substantial
rights" of the defendant; (3) brings prejudice to the
defendant; and (4) "seriously affects the fairness,
integrity or public reputation of judicial proceedings."
State v. Myers, 2011 VT 43, ¶ 29, 190 Vt. 29,
26 A.3d 9 (quotation omitted).
7. As we have explained before, for this Court to grant
relief under the plain-error standard, "[p]rejudice must
exist to demonstrate that error undermined fairness and
contributed to a miscarriage of justice." State v.
Pelican, 160 Vt. 536, 539, 632 A.2d 24, 26 (1993).
Accordingly, even if we were to agree with defendant that
there was error associated with the court's treatment of
his prior conviction, [*] he is entitled to relief only if he
can establish prejudice. See Myers, 2011 VT 43,
¶ 29; Pelican, 160 Vt. at 539, 632 A.2d at 26.
Prejudice relates to the impact that any error might have had
on the outcome of the trial. See Myers, 2011 VT 43,
¶ 31 (acknowledging constitutional error but declining
to grant relief under plain error standard because outcome in
defendant's trial would not have changed absent error).
8. Here, both of the alleged errors that defendant
claims-that the court should not have accepted as sufficient
counsel's stipulation to a prior DUI conviction and that
the court did not make sufficient findings to establish that
defendant had a prior DUI conviction-relate to
defendant's prior conviction, the existence of which
defendant does not challenge. The fact that defendant does
not challenge his prior conviction draws into focus the
nature of his appeal: defendant seeks a new trial in order to
relitigate an issue that he does not contest. The errors that
defendant claims do not undermine confidence in the outcome
of the trial, given that he does not dispute the existence of
the predicate conviction or argue that he was not the person
convicted. See id. A certified copy of the prior
conviction was received in evidence without objection, and,
as such, there is ...