VERMONT TRIAL COURT CRIMINAL JURY INSTRUCTION PROJECT

Accompanying Notes as of December 13, 2010

                                                                                   

Notes of General Application

 

            These model instructions have been drafted by a committee which began meeting on August 3, 2001.  The original members were District Court Judge Paul F. Hudson and Attorneys Dan M. Davis, Matthew I. Levine, Kathleen M. Moore, and Thomas A. Zonay.  In the fall of 2006, District Court Judge Walter M. Morris Jr. replaced Judge Hudson as chair.  In the spring of 2007, Attorneys Kevin W. Griffin and Nancy J. Waples joined the committee, replacing Attorneys Moore and Zonay.  In the spring of 2008, Attorney Tracy Kelly Shriver joined the committee, replacing Attorney Davis.  The reporters are Judson D. Burnham and Dickson Corbett.

 

            Beginning in the summer of 2003, the committee consulted with language expert Peter M. Tiersma, a professor of law at Loyola Law School in Los Angeles, California, and the author of the book Legal Language (University of Chicago Press 1999).  He has assisted the committee with its efforts to draft instructions that are easier for jurors to understand.

           

            The instructions are intended as models that may be used in Vermont criminal trials.  They have not been adopted by the Vermont Supreme Court, and there is no requirement that they be used as drafted.  Judges and attorneys are encouraged to tailor their instructions to fit the circumstances.

 

            The committee encourages practitioners to use the name of the defendant instead of the words “the defendant.”  The instructions provide a blank with the designation (Def)_______________.  Exactly 15 blanks are used, so that a judge may use a “find and replace” function to insert the defendant’s name.  In most instructions, gender words such as “him” or “her” are placed in brackets; it is preferable to simplify the instructions by using only the words that fit the circumstances.  The use of actual names makes the instructions easier to follow, and it also avoids negative connotations from the word “defendant.”  For similar reasons, judges, lawyers and witnesses (especially police) should refer to the victim by name instead of using the word “victim.”  See State v. Wigg, 2005 VT 91, 179 Vt. 65 (where the commission of a crime is in dispute and the core issue is credibility, it is error for a trial court to permit a police detective to refer to the complainant as the “victim”).

 

            To some extent, the committee has drafted the instructions in a modular fashion, and some instructions refer to separate modules.  This approach allows for consistency, and it also encourages the drafter to tailor the instructions to fit the circumstances.

 

            Many instructions include bracketed material.  Generally this means that the bracketed instruction will be appropriate for some trials but not for others.  For example, the homicide instructions contain bracketed material giving additional instructions on the meaning of “unlawful killing.”  If the unlawfulness of the killing is not an issue in the case, then it is better to give the shorter instruction.  If the unlawfulness of the killing is an issue in the case, then the attorneys might want to request a more detailed instruction.

            Sometimes the brackets indicate a choice.  For example, when the State charges a defendant with simple assault, causing bodily injury, under 13 V.S.A. § 1023(a)(1), there is a choice between charging purposely, knowingly, or recklessly causing the bodily injury.  The instruction CR22-021 provides the choices in brackets.  The third essential element is that the defendant caused the injury [purposely] [knowingly] [recklessly].  The instruction anticipates that the State will charge one of the choices, and that the instructions will be tailored to reflect the State’s election.

 

            In some instances there is a choice, in brackets, between a reference to a [mental state] or [intent].  The committee suggests referring to intent when the mental element is intentionally, purposely, knowingly, or wilfully, and referring to the mental state when the mental element is of a lesser degree, such as recklessly or negligently.

 

            The model instructions encourage the use of specific instructions when specific acts are charged.  When the information specifies the conduct that forms the basis of the charge, it narrows the charge that the State must prove, and specific instructions are appropriate.  State v. Aiken, 2004 VT 96, 177 Vt. 566; State v. Brown, 2005 VT 104, 179 Vt. 22.  In many instructions the statement of the elements will include a space for specific acts.  (e.g. “(Def)_______________ caused bodily injury to (victim)_______________, by (specific acts)_______________.”)  Generally the discussion of the elements will also provide for a statement of the specific allegations, as follows: “Here the State alleges that (Def)_______________ caused bodily injury to (victim)_______________, by (specific acts)_______________.”  The committee recognizes that prosecutors do not always allege specific acts, and that a statement of the specific acts is not always required.  However, when the information charges specific acts, it helps to remind the jurors of the specific acts that are charged.

 

General Notes Concerning Legal Sufficiency of Jury Instructions:

 

            (1)  It is “the duty of the trial court to instruct the jury on all material issues raised by the evidence and the pertinent law. . . .  The charge to the jury must be full, fair and correct on all issues, theories and claims within the pleadings.”  State v. McLaren, 135 Vt. 291, 296 (1977).

 

            (2)  The defendant is entitled to instructions appropriate to the case made by his or her evidence.  The court has a duty to present the issues to the jury squarely, even in the absence of a request, “for it is always the duty of the court to charge fully and correctly upon each point indicated by the evidence, material to a decision of the case, whether requested or not.”  State v. Brisson, 119 Vt. 48, 53 (1955).

 

            (3)  However, a party excepting to the court’s instructions must “fairly and reasonably indicate to the court the particulars in which such instructions [are] claimed to be in error, or sufficiently apprise the court of the specific instruction he [or she] desire[s] on the subject matter.”  State v. Crosby, 124 Vt. 294, 297 (1964).

 

            (4)  The court must charge “fully and correctly upon each point indicated by the evidence [and] material to a decision of the case.”  State v. Gokey, 136 Vt. 33, 36 (1978).

Notes Regarding Chapters and Sections:

 

Chapter 1: Introductory General Instructions

 

01-011.  Questions to ask Jurors at Start of Trial, or During Trial

 

            These questions might be helpful in a high profile case; they are not necessary in every case.  Reasons for inquiry are discussed in State v. Onorato, 142 Vt. 99, 105-07 (1982).

 

01-021.  Juror Note Taking -- Introduction

 

            If jurors are allowed to take notes, the court must give them a brief introduction.  The procedures may vary from one court to another.  The model instruction is drafted in generic language, because in some cases “the record” may involve a stenographic recording, whereas in other cases it may involve audiotape or videotape.

 

01-101.  Introduction

 

            This is a short, generic instruction that may be used to introduce the closing instructions.

 

01-501.  American Sign Language Interpreters

 

            If a case requires the use of interpreters, the judge must explain their use early in the case.  The committee recommends discussing potential issues at least as early as the jury draw.  For example, the judge and the attorneys will want to know whether any jurors understand the language that is being interpreted, and some consideration should be given to the potential problem of jurors disagreeing with an interpretation that is given.

 

01-511.  Spanish Language Interpreters

 

            Instruction CR01-511 may be used as an instruction for any foreign language interpreters.  It can be converted for use with another language by substituting for the word “Spanish.”

 

 

Chapter 2: Miscellaneous General Instructions

 

02-021.  Reading of the Charge

 

            The instructions on the essential elements should begin with the reading of the charge.  For the sake of clarity, the committee recommends focusing on the charge itself, and not on the underlying statute.  The information controls.  It is dangerous and confusing to read or paraphrase the statute, which often includes concepts that are not part of the case.

 

02-061.  At or About

 

            The court should give this instruction only if the location of the offense is a material issue in the case.

 

 

Chapter 3: Concluding General Instructions

 

03-011.  Jury Deliberations

 

            The instructions on jury deliberations, including the requirement of unanimity, are usually given at the conclusion of the closing instructions.

 

03-021.  Juror Note Taking

 

            If jurors are have been allowed to take notes, they should be reminded that they should pay equal attention to all jurors, whether or not they have taken notes.  The concern is that a juror who has taken notes might exercise undue influence on others.

 

03-041.  Foreperson’s Duties

 

            Although the practice varies, the committee recommends that the judge announce the appointment of the foreperson toward the end of the closing instructions.  An earlier announcement could cause unnecessary distraction.

 

03-101.  Hung Jury Charge

 

            This is a version of the so-called Allen charge.  Use with caution.  State v. Perry, 131 Vt. 337, 339 (1973).  The judge should discuss this instruction with the attorneys before giving it to the jury.

 

03-106.  Partial Verdict Charge

 

This variation on the hung-jury charge is meant for those situations in which there are multiple counts and the jury has indicated that they cannot agree, but it is not clear whether the jury cannot agree on any count or only on some of the counts.  As with the hung-jury charge, CR03-101, this instruction should be used with caution, and the judge should discuss it with the attorneys before giving it to the jury.  State v. Perry, 131 Vt. 337, 339 (1973).  This instruction is meant for cases involving multiple counts, as opposed to cases in which the jury has been asked to consider lesser-included offenses.

 

 

Chapter 4: Burden of Proof

 

04-021.  Proof of Essential Elements

 

            This instruction, or one like it, is appropriately included after the substantive instructions on the elements of the charge.  The court must instruct the jury that one of the possible verdicts is that the defendant is not guilty of any crime.  See State v. Camley, 140 Vt. 483 (1981) (plain error found where judge failed to list a general not guilty verdict along with the other possibilities).

 

04-041.  Separate Counts

 

            In a complicated case, this instruction may help to emphasize that multiple counts must be considered separately.  In most cases, it will help to tailor the instruction to the circumstances.

 

04-061.  Presumption of Innocence

 

            The Vermont Supreme Court discussed the presumption of innocence in State v. Duff, 150 Vt. 329 (1988), and clarified the doctrine in State v. Powell, 158 Vt. 280 (1992).  The presumption of innocence is a piece of evidence which the jury should consider in the defendant’s favor.  It works in two ways, as a presumption with regard to each essential element, and as a presumption with regard to the degree of offense.  However, “[a]s long as a court specifically instructs the jury as to each offense charged that it must not convict unless it is convinced of the defendant’s guilt beyond a reasonable doubt, the ‘reasonable doubt between offenses’ instruction is not required.”  Id. at 286.

 

04-081.  Unanimous Verdict (where evidence might tend to show multiple acts)

 

            This instruction addresses a potential problem with jury unanimity.  The problem may appear in various forms.  For examples, see Woodmansee v. Stoneman, 133 Vt. 449 (1975), where the jury was presented with two separate theories of accomplice liability, and State v. Couture, 146 Vt. 268 (1985), where the jury was told it could convict the defendant of kidnapping, for confining any one of five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element that the defendant had confined a particular person.

 

            More recently, the problem appeared when the State introduced evidence of three separate sexual acts in support of one count of sexual assault.  State v. Martel, 164 Vt. 501 (1995).  The court instructed the jury that each juror had to agree as to which of the three sexual acts constituted the “sexual act” element of the crime, and that they would have to look to the evidence of that individual act in order to convict.  The defendant was convicted of sexual assault, and the Supreme Court affirmed, noting that the instruction eliminated much of the potential prejudice that had existed because of the absence of an election.  Id. at 504.

 

            The instruction on jury unanimity, CR04-081, represents an attempt to deal with the Couture problem by giving an instruction.  It is still preferable for the State to make an election.  If the instruction is used, it should be tailored to fit the circumstances of the case.

 

            The instruction on accomplice liability complies with the constitutional requirement of jury unanimity.  The State may prove that the defendant committed the crime either as an accomplice or as the principle actor.  State v. Green, 2006 VT 64, 180 Vt. 544.  The jury must still reach a unanimous verdict on the essential elements of the crime.

 

04-101.  Burden of Proof -- Beyond a Reasonable Doubt

 

            In a criminal case, the state must prove each of the essential elements of the offense beyond a reasonable doubt.  State v. Derouchie, 140 Vt. 437, 442 (1981) (citing In re Winship, 397 U.S. 358, 364 (1970)).  When describing the standard of proof beyond a reasonable doubt, brevity is a virtue.  State v. Francis, 151 Vt. 296 (1989).  Unless there is a request for elaboration, the instruction should be brief, and the words will carry their plain meaning.  State v. McMahon, 158 Vt. 640 (1992).  The jury’s role is to determine whether the state has proven the charge beyond a reasonable doubt.  The instruction tells the jury that, if the jury has a reasonable doubt, then it must find the defendant not guilty even if it thinks that the charge is probably true.  State v. Giroux, 151 Vt. 361, 365 (1989).

 

            In 2005, the committee modified its instruction in two ways: First, the instruction has been redrafted to avoid using the phrase “(Def)__________’s guilt,” which might suggest that he or she is in fact guilty.  Second, it has been simplified by eliminating the word “real” from the sentence that begins, “A reasonable doubt is a real doubt based on reason . . .”  This change responds to a suggestion in State v. Carr, No. 2004-304 (unp. entry dated April 2005).  The Court approved the instruction on reasonable doubt, but suggested that it would be better to avoid using the word “real.”

 

            The last sentence of the instruction states that if the jury is convinced of the defendant’s guilt beyond a reasonable doubt, then it must find the defendant guilty.  The committee rejected suggestions that the jury be told it should find the defendant guilty, or that it may find the defendant guilty.  Vermont follows the majority rule that jurors are not given instructions on jury nullification.  State v. Findlay, 171 Vt. 594 (2000).  Jurors are told that they must apply the law as it is given to them in the instructions.

 

            There may be circumstances where the jury should acquit even where the state has proven the essential elements beyond a reasonable doubt, such as where the defendant proves the elements of an affirmative defense.  That issue is dealt with in the instructions concerning the affirmative defense.  The jury will be told that if the defendant proves the elements of an affirmative defense by a preponderance of the evidence, then the jury must find the defendant not guilty.

 

04-121. Proof by a Preponderance of the Evidence

 

            This instruction applies to issues that are to be decided by a preponderance of the evidence.  In most cases, it should suffice to instruct that proof by a preponderance of the evidence means that the defense is more likely true than not true, and that this burden of proof is less than the burden of proof beyond a reasonable doubt.  The instruction also includes a paragraph analogizing this burden to a balance scale, for use when the judge believes the analogy would help with the explanation.

 

04-151.  Burden of Proof on Self-Defense

 

            “Once evidence raising the issue of self-defense appears in the case, the burden is on the State to prove, beyond a reasonable doubt, that appellant’s actions were not in self-defense.”  State v. Bartlett, 136 Vt. 142, 144 (1978) (assault context).  In a homicide case, the State’s burden of proving that the killing was unlawful may also require proof beyond a reasonable doubt that the defendant did not act in self-defense.  State v. Rounds, 104 Vt. 442, 450-51 (1932).

 

04-201.  Affirmative Defense -- Burden of Proof

            This instruction provides a framework for introducing a defense to the jury.  When an affirmative defense is presented, the defendant bears the burden of proving it by a preponderance of the evidence.  The court need not tell the jury that the defense is an “affirmative” defense.

 

 

Chapter 5: Evidence

 

05-031.  Statements by the Attorneys

 

            The model instructions refer to the attorneys as “attorneys.”  The committee concluded that “counsel” is too obscure, and that “lawyers” is too informal.

 

05-051.  Circumstantial Evidence

 

            The committee has simplified and shortened the instruction on circumstantial evidence.  The Supreme Court has approved similar instructions in State v. Baird, 2006 VT 86, 180 Vt. 243.

 

            This instruction is unusual in that it provides an example.  Most judges prefer to give an example of circumstantial evidence, although some would use a different example.  It is not necessary to use the example of cow tracks, which might not be understood by all audiences.

 

05-061.  Credibility of Witnesses

 

            This is a generic instruction on credibility of witnesses.  The model does not include an instruction on reconciling testimony, although it does tell the jury that it may consider inconsistencies or discrepancies.  There are potential problems with instructing the jury that it must try to reconcile conflicting testimony, because that might suggest that witnesses are presumed to tell the truth.  See State v. Percy, 156 Vt. 468, 472-73 (1991).

 

05-081.  Hearsay of Child (V.R.E. 804a)

 

            See State v. LaBounty, 168 Vt. 129 (1998); State v. Gallagher, 150 Vt. 341, 348 (1988).

 

05-091.  Number of Witnesses

 

            The instruction on number of witnesses will generally appear after the instruction on the burden of proof.  The purpose is to point out that the evidence of one side or the other is not stronger merely because that side may have presented more witnesses.

 

05-111, 121, 131.  Witnesses Testifying under Plea Agreement, or Grant of Immunity, or Both

 

            These instructions must be tailored to the circumstances of each case, because agreements with witnesses come in many varieties.  The model instructions include one for plea agreements, one for grants of immunity, and one for both.

 

05-141.  Limited Relevance of Agreements With the State

 

            This instruction should be used only in rare circumstances where the jury is told the terms of a witness’s plea agreements with the state, and where the defendant is charged with participating in the same serious crime.  The instruction derives from State v. Marallo, No. 1468-10-98 RdCr.

 

05-161.  Police Witnesses

 

            The emphasis of this instruction is that the jury should not give greater or lesser weight to the testimony of a witness merely because the witness is a police officer.  Despite this emphasis, the jury may consider the officer’s testimony in light of the officer’s training and experience.

 

05-251.  Prior Inconsistent Statements

 

            If there is testimony about prior inconsistent statements by the witness which were not made under oath, then the out-of-court statements are introduced for impeachment only, under V.R.E. 613.  However, if the out-of-court statements were under oath and subject to penalties of perjury, then they may be admitted as substantive evidence, under V.R.E. 801(d)(1).  Statements are subject to perjury only if the person is lawfully required to depose the truth in a proceeding in a court of justice.  13 V.S.A. § 2901.  Deposition testimony may be admitted as substantive evidence if the deponent is unavailable for trial, or if the witness gives testimony at the trial that is inconsistent with his or her deposition.  See V.R.Cr.P. 15(e).  Prior inconsistent statements by the defendant may be admitted as substantive evidence against him or her, as admissions under V.R.E. 801(d)(2).  The model instruction attempts to cover the various possibilities, but the court might have to tailor it to fit the specific circumstances of each case.

 

05-301.  Defendant Not Testifying

 

            It is the defendant’s choice of whether the court will give this instruction, and the defendant also has some discretion in choosing the language to be used.  The following statute applies:

 

13 V.S.A. § 6601: Respondent as witness

 

            In the trial of complaints, informations, indictments and other proceedings against persons charged with crimes or offenses, the person so charged shall, at his own request and not otherwise, be deemed a competent witness.  The credit to be given to his testimony shall be left solely to the jury, under the instructions of the court but the failure of such person to testify shall not be a matter of comment to the jury by either the court or the prosecutor and shall not be considered by the jury as evidence against him.

 

            The Vermont Supreme Court has indicated that the defendant has the right to decide whether or not an instruction will be given.  The trial court asks:  Defendant, do you desire that the court comment on your failure to take the stand?  If the answer is no, say nothing.  If the answer is yes, then get the defendant’s request on the record.

 

            We are of the firm opinion that the better procedure is for the trial court to ascertain the position of a respondent who has not testified to determine whether he desires that the instruction be given and then give the instruction only when it is requested by him. This places the burden of choice on the respondent rather than the court to decide whether the jury shall be instructed as to the respondent’s rights under the statute. This decision is where it should rest in fairness to the respondent. He may feel that under the facts appearing in his case such an instruction would be prejudicial or, on the other hand, that it might be helpful or favorable to him if given. It should be for him to elect whether or not the instruction shall be given to the jury. 

 

State v. Emrick, 129 Vt. 330, 333 (1971).

 

05-311.  Defendant as Witness

 

            This instruction may be appropriate in a case where the defendant testifies as a witness, but the court should give the instruction only if the defendant requests it.

 

05-501.  Evidence of Flight by the Defendant

 

            The Supreme Court has discussed evidence of flight in State v. Giroux, 151 Vt. 361 (1989), and in State v. Unwin, 139 Vt. 186 (1980).  The committee has shortened the model based on the Court’s approval of the instruction given in State v. Alexander, 2005 VT 25, ¶ 5, 178 Vt. 482.

 

05-511.  Prior Bad Acts Evidence

 

            Generally, before evidence of prior bad acts is admitted, the trial court must determine the purposes for which the evidence is admitted.  A preliminary hearing under V.R.E. 104 and V.R.E. 403 is generally advisable.  Any limiting instruction must be tailored to fit the circumstances of the case.  Prior bad acts were admitted as part of a concerted scheme or plan of molestation in State v. Catsam, 148 Vt. 366, 380-81 (1987); prior acts were admitted as “signature” evidence to show identity in State v. Bruyette, 158 Vt. 21 (1992); other bad acts were a

dmitted to explain the context of a statutory rape in State v. Searles, 159 Vt. 525 (1993); and prior uncharged sexual misconduct was admissible because it tended to establish the defendant’s propensity to engage in sexual conduct with his daughter in State v. Forbes, 161 Vt. 327, 331 (1994).

 

05-601.  Identification Testimony

 

            Most criminal cases will include identity as the first essential element, with a short instruction such as CR09-011.  If the case is one in which the issue of identity turns on eyewitness identification, it may be appropriate to include a longer instruction.  Instruction CR05-601 derives from State v. Seifert, 151 Vt. 66 (1989).  Also see Devitt and Blackmer, Fed. Jury Inst. Vol 1. § 15.19; State v. Kasper, 137 Vt. 184, 192-93 (1979).  Instruction CR05-605 addresses testimony about identification in a line-up.  Instruction CR05-611 is designed to address the very specific circumstances of identification based on signature conduct.  See State v. Bruyette, 158 Vt. 21 (1992).

 

            Instruction CR05-601 has been shortened from the one given in Seifert.  The model instruction does not include a list of factors that could affect a witness’s opportunity to observe a suspect.  In Seifert, the list of factors was approximately as follows:

 

            (a) How much time was available for the observation?

            (b) How close was the witness to the person being observed?

            (c) How good were the lighting conditions?

            (d) Was the witness paying attention to the other person?

            (e) How accurate was the witness’s prior description of the alleged perpetrator?

            (f) How certain was the witness in making the identification?

            (g) How much time passed between the alleged offense and the witness’s identification?

            (h) Had the witness seen or known the other person in the past?

 

            The committee cautions against using a longer instruction on eyewitness identification.  One concern is that the jury might interpret a lengthy instruction as reflecting the judge’s views on the identification, without any firm basis in law.  Another concern is that the traditional views about factors to consider (such as the level of certainty) may conflict with modern research.  This is an evolving area of the law, and the court should consider attorneys’ requests for instructions in particular cases.  There is a developing body of research, and the general approach to eyewitness identification may be evolving.  See the article by Atul Gawande, “Under Suspicion – The fugitive science of criminal justice,” The New Yorker (January 8, 2001) at 50.

 

05-801.  Lost Evidence

 

            Vermont law recognizes that an instruction on lost evidence, or “spoliation,” may be appropriate to explain missing evidence in a civil trial.  See, e.g., In re Campbell’s Will, 102 Vt. 294 (1929).  The idea is to explain inferences that jurors may draw.  There are cases from other states holding that a “lost evidence” instruction may be appropriate in criminal trials, as a remedy short of dismissal.  See People v. Zamora, 28 Cal.3d 88, 615 P.2d 1361, 167 Cal.Rptr. 573 (Cal. 1980).  The Vermont Supreme Court has held that the trial court is not required to give a Zamora instruction where the loss of evidence does not prejudice the defendant’s constitutional right to a fair trial.  State v. Smith, 145 Vt. 121, 129 (1984).  For cases discussing circumstances that could support outright dismissal, see State v. Devine, 168 Vt. 566 (1998), and State v. Delisle, 162 Vt. 293 (1994).  For the most recent discussion by the Vermont Supreme Court, where the defendant was not entitled to any remedy beyond an instruction to the jury, see State v. Gibney, 2003 VT 26, 175 Vt. 180.

 

            The lost evidence instruction is designed to allow an inference in favor of the defendant, where a loss or destruction of evidence has prejudiced the defendant’s ability to defend himself or herself, but where the evidence of police misconduct is insufficient to support a dismissal.  The instruction should be given only where the missing evidence would have been material to the case, and the circumstances show a violation of due process.  With or without the instruction, the attorneys may comment on the evidence in their closing arguments, and defense counsel may argue that the missing evidence would have helped the defendant.  If the police are guilty of egregious misconduct, the defendant may argue to the court for a dismissal.

 

 

Chapter 6: Mental Elements

 

06-001.  Proof of Intent or Mental State

 

            This instruction guides the jury regarding the use of circumstantial evidence to determine the defendant’s mental state.  The committee recently shortened it from three sentences to two.  The change was made in the interest of brevity, and not because of any perceived error.

 

            Nevertheless, the change eliminated a sentence that the Supreme Court has criticized in State v. Brunelle, 2008 VT 87, 184 Vt. 589 (mem.).  The sentence in question states:  “A person ordinarily intends the natural and probable consequences of his or her voluntary acts, knowingly done.”  Although this is a permissible inference that the jury may draw, the Court suggested that it “may have been plain error” for the judge to give the instruction.  Id. at ¶ 18.  In the past, the Court has held that it is error to instruct this inference as a presumption, as in:  “A person is presumed to intend the natural and probable consequences of his acts.”  State v. Martell, 143 Vt. 275, 278 (1983) (citing Sandstrom v. Montana, 442 U.S. 510, 518-19 (1979)).  The Brunelle decision indicates that the court should be wary of suggesting the inference.  In light of Brunelle, the committee has eliminated the questionable sentence from all of its instructions.

 

06-011.  Specific Intent

 

            In most cases, the jury instruction will state the specific intent that must be proven, but it is not necessary to refer to the mental state as a “specific intent.”  When this project began, the committee used modules to refer to instructions within this chapter, but as the project has evolved, the trend is to spell out the intent to be proven within each separate instruction.

 

06-111.  Intentionally

 

            The Supreme Court has clarified that acting “intentionally” means to act “purposely” or with a specific “conscious object.”  State v. Jackowski, 2006 VT 119, 181 Vt. 73.  A charge that the defendant acted “intentionally” is not shown by “knowing” conduct, i.e. where the defendant was “practically certain” to cause a specific result.  The committee has reviewed its instructions on “intentional” conduct, to ensure consistency with the holding of Jackowski.

 

            The model instruction for “intentionally,” CR06-111, includes a space for stating the specific harm that is alleged to have been caused.  At some point the instruction must identify the intent that must have been proven.  The committee notes that not every case includes an allegation of harm to a victim.  For some crimes, the allegation is that the defendant has harmed society.

 

06-121.  Purposely

 

            The model instruction for “purposely,” CR06-121, is very similar to the instruction for “intentionally,” CR06-111.  As suggested by State v. Jackowski, 2006 VT 119, 181 Vt. 73, the two words have essentially the same meaning.

 

06-131.  Knowingly

 

            To act “knowingly” means to engage in conduct that will cause, or that will be practically certain to cause, a specific harmful result.  As the Supreme Court explained State v. Jackowski, 2006 VT 119, 181 Vt. 73, this is somewhat different from acting “intentionally” or “purposely.”

 

06-141.  Recklessly

 

            The instruction on recklessness generally derives from the Model Penal Code instruction § 2.02(2)(c), as recognized by the Vermont Supreme Court in State v. Hoadley, 147 Vt. 49, 55 (1986), and State v. O’Connell, 149 Vt. 114 (1987).  It also includes language from State v. Shabazz, 169 Vt. 448, 455 (1999), where the Court distinguished between recklessness pertaining to involuntary manslaughter (reckless conduct disregarding the possible consequence of death resulting), and wantonness pertaining to voluntary manslaughter (extremely reckless conduct that disregards the probable consequence of taking human life).

 

06-151.  Wilfully

 

            Acting “wilfully” is similar to acting “intentionally,” but it is not clear whether they mean the same thing in all contexts.  In State v. Penn, 2003 VT 110, 176 Vt. 565, the Supreme Court approved of an instruction defining “willfully” as “purposefully and intentionally, and not by accident, mistake or inadvertence.”  Id. ¶ 9.  The Court has also stated that the words “willful” and “intentional” are generally synonymous.  State v. Coyle, 2005 VT 58, ¶ 15, 178 Vt. 580, 585.

 

            The committee has recently amended the instructions for “wilfully,” to use language that is similar to the instruction for “intentionally.”  What is not yet clear, however, is whether the mental element of acting “wilfully” can be met by evidence that the defendant acted “knowingly.”  The Supreme Court has clarified that the word “intentionally” means essentially the same thing as “purposely,” and that the mental element of acting “intentionally” cannot be met by evidence that the defendant acted “knowingly.”  State v. Jackowski, 2006 VT 119, 181 Vt. 73.

 

06-161.  Criminal Negligence

 

            For discussions of criminal negligence, see State v. Free, 170 Vt. 605 (2000); State v. Beayon, 158 Vt. 133, 136 (1992); and State v. Stanislaw, 153 Vt. 517, 525 (1990).

 

Notes Concerning General Intent:

 

            The concept known as “general intent” means that the defendant generally knew what he or she was doing.  See LaFave and Scott, Substantive Criminal Law (1986), § 3.5(e) (“Criminal,” “Constructive,” “General,” and “Specific” Intent).  “[W]here the definition of a crime requires some forbidden act by the defendant, his [or her] bodily movement, to qualify as an act, must be voluntary.  To some extent, then, all crimes of affirmative action require something in the way of a mental element – at least an intention to make the bodily movement which constitutes the act which the crime requires.”  Id. at 314.  The most common distinction between “general intent” and “specific intent” is that “specific intent” designates a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.  Id. at 315.  In short, it is fair to say that all crimes require some sort of “general intent.”  However, it does not follow that an instruction on general intent will be helpful to the jury.

 

            The committee believes that “general intent” is rarely an essential element of a crime, and that giving the instruction rarely adds to the jury’s understanding of the case.  In the unusual case where the defendant had no idea what was going on, then the defendant might have a valid defense that the charged act was involuntary.  However, in most cases charging “general intent” crimes, there is no issue over the defendant’s intent in doing the act that the law has declared to be a crime.  If a case does present such an issue, the court should consider instructions proposed by the attorneys.

 

            For further discussion of this issue, see the notes regarding CR22-301 (Violation of Abuse Prevention Order).  Also see the notes regarding CR27-031, where the committee has included a general intent instruction in the instructions for lewd and lascivious conduct under 13 V.S.A. § 2601.  The Supreme Court has held that there is no essential element of specific intent for lewd or lascivious conduct, but it may be appropriate to include an instruction on general intent.

 

 

Chapter 7:  Defenses

 

07-101.  Self-defense

 

            Although characterized as a defense, self-defense is something the State must disprove once it is presented in the case.  However, the defendant is not entitled to an instruction on self-defense until there is prima facie evidence to support the defense.  State v. Little, 167 Vt. 577, 577-78 (1997) (mem.) (evidence did not support a charge); State v. Darling, 141 Vt. 358, 361-62 (1982) (any error in the charge was harmless, where the evidence did not support the charge); State v. Cantrell, 151 Vt. 130, 135-36 (1989) (in order to be entitled to an instruction on a defense, defendant must establish a prima facie case on its elements).

 

            The committee has discussed this instruction with Prof. Tiersma.  Instruction CR07-101 follows the traditional approach of explaining what self-defense is, and then explaining that the State must prove that the defendant did not act in self-defense.

 

            Self-defense is measured against the act of the crime.  The use of deadly force requires greater justification than the use of a lesser force.  A court should exercise caution in selecting the appropriate instruction to use in a particular case.  The general rules are summarized in State v. Rounds, 104 Vt. 442 (1932).  Other cases discussing self-defense include State v. Hoadley, 147 Vt. 49, 54 (1986); State v. Barrett, 128 Vt. 458, 460-61 (1970); State v. Dragon, 128 Vt. 568, 572 (1970); State v. Wilson, 113 Vt. 524, 527 (1944).

 

07-111.  Self-defense (use of deadly force)

 

            The instruction on the use of deadly force in self-defense, CR07-111, includes an instruction that under certain circumstances, the law does not require the defendant to retreat.  See State v. Hatcher, 167 Vt. 338, 348 (1997).

 

07-121.  Self-defense, and defense of another (context of homicide)

 

            The instruction for self-defense, and defense of another, CR07-121, derives from the trial court’s instructions in State v. Verrinder, 161 Vt. 250 (1993).  However, these instructions have been shortened significantly.  One of the changes is to eliminate an instruction on duty to retreat.  In State v. Hatcher, 167 Vt. 338 (1997), the trial court instructed the jury that if the defendant honestly and reasonably believed “it was immediately necessary to use deadly force to protect himself from an imminent threat of death or bodily injury, the law does not require him to retreat.”  Id. at 348.

 

            The committee notes that “defense of another” provides justification for a homicide only if the necessary relationship exists.  See 13 V.S.A. § 2305(1).

 

07-131.  Defense of Property

 

            The Vermont Supreme Court has recognized defense of property as a legal defense.  The components derive from case law.  The instruction is drafted in generic form.  It should be tailored to fit the circumstances of each case.

 

07-153 to 07-159.  Intoxication and Diminished Capacity

 

            Evidence of intoxication, or other condition of impairment, may be relevant to a variety of claims.  A defendant may claim, for example, (1) that he or she was legally insane at the time of the alleged acts, (2) that he or she suffered from a diminished capacity to form the requisite mental state, or (3) that, because of the impairment, he or she did not form the requisite mental state.  The Vermont Supreme Court has explained the concept of “diminished capacity” as follows, in State v. Smith, 136 Vt. 520, 527-28 (1978).

 

            The concept is directed at the evidentiary duty of the State to establish those elements of the crime charged requiring a conscious mental ingredient.  There is no question that it may overlap the insanity defense in that insanity itself is concerned with mental conditions so incapacitating as to totally bar criminal responsibility.  The distinction is that diminished capacity is legally applicable to disabilities not amounting to insanity, and its consequences, in homicide cases, operate to reduce the degree of the crime rather than to excuse its commission.  Evidence under this rubric is relevant to prove the existence of a mental defect or obstacle to the presence of a state of mind which is an element of the crime, for example:  premeditation or deliberation.

 

            “Evidence of reduced mental capacity is not a defense on which a defendant bears a burden of proof. . . .  The mental state of a defendant must be proved by the State.”  State v. Duff, 150 Vt. 329, 333 (1988) (citing State v. Messier, 145 Vt. 622, 629 (1985)).  However, if the defendant formed the requisite mental state before becoming intoxicated, and if he or she then drank to brace himself or herself to prepare for committing the act, or if he or she became intoxicated knowing that it would predispose him or her to violence, then the reduced mental capacity does not excuse the criminal conduct.  State v. Pease, 129 Vt. 70, 76 (1970).

 

            Often the judge must assess the evidence in deciding how to instruct the jury.  See, e.g., State v. Kinney, 171 Vt. 239, 243-44 (2000) (court should normally give the charge, if it is supported by the evidence, but evidence of alcohol consumption will not by itself require the instructions).  The court may refuse to instruct on diminished capacity where there is insufficient evidence to justify it.  State v. Duford, 163 Vt. 630 (1995). 

 

            Jury instructions on diminished capacity, given by Judge Grussing, are quoted in State v. Wheelock, 158 Vt. 302, 311 (1992), as follows:

 

In general, diminished capacity refers to a mental disability of the defendant at the time of the alleged commission of the offense which precludes or prevents the defendant from forming a specific intent or having the required state of mind which is an essential element of the offense. . . .  [It] results in malice being negated. . . .

             . . .

 . . . [D]iminished capacity recognizes that voluntary consumption of drugs or alcohol or both may impair a person’s mental functioning to such an extent as to prevent that person from forming the specific intent or intents that are a necessary element of the offenses.

             . . .

 . . . [I]n considering diminished capacity, you should look to the evidence as you find it to be with regard to the extent of the Defendant’s ingestion of alcohol and or drugs and the evidence as to the observed effects upon him and determine to what degree his mental ability to form the specific intent was impaired.

 

            The relevance of diminished capacity evidence requires examination of the mens rea element of the charge.  “When specific intent is an element of a crime, evidence of either voluntary or involuntary intoxication may be introduced to show that the defendant could not have formed the necessary intent.”  State v. Joyce, 139 Vt. 638, 639-40 (1981) (citing State v. D’Amico, 136 Vt. 153, 156 (1978)).  In Joyce, the defendant was charged with a crime which included an element of specific intent, namely aggravated assault, by attempting to cause serious bodily injury to another, under 13 V.S.A. § 1024(a).  In contrast, intoxication does not negate recklessness, which is often charged as the mental element of simple assault under 13 V.S.A. § 1023(a)(1).  State v. Galvin, 147 Vt. 215, 216 (1986) (citing State v. Murphy, 128 Vt. 288, 293 (1970)).  In State v. Bolio, 159 Vt. 250 (1992), the Supreme Court indicated that the defense of diminished capacity could be applied to a charge of aggravated assault (attempting to cause or purposely or knowingly causing bodily injury to another with a deadly weapon, under 13 V.S.A. § 1024(a)(2)), to possibly reduce the degree of crime to the lesser included offense of simple assault under § 1023, because the element of recklessness is necessarily included within the element of specific intent.  Id. at 252-54.

 

            Diminished capacity may be employed to negate the knowledge element found within a charge of simple assault on a police officer under 13 V.S.A. § 1028.  State v. Galvin, 147 Vt. 215 (1986).  On the other hand, diminished capacity does not apply to the mental element of aggravated assault when a defendant is charged with causing serious bodily injury recklessly under circumstances manifesting extreme indifference to the value of human life, under 13 V.S.A. § 1024(a)(1).  State v. Allen, 169 Vt. 615 (1999).

 

            Diminished capacity does not apply where the charge does not include an essential element of intent.  State v. Gadreault, 171 Vt. 534 (2000) (cruelty to animals).  It also does not apply to a charge of DUI, where diminished capacity is an essential element of the crime.  State v. Godfrey, 137 Vt. 159 (1979).

 

            Where the evidence supports the elements of the crime charged, but where there is also evidence of diminished capacity that may cut against the State’s evidence of specific intent, the issue is properly decided by the jury verdict.  State v. Kennison, 149 Vt. 643, 651-53 (1987); State v. Pease, 129 Vt. 70 (1970).

 

            In the homicide context, diminished capacity is recognized as a mitigating circumstance that may reduce a killing from second degree murder to voluntary manslaughter.  See State v. Sexton, 2006 VT 55, 180 Vt. 34 (defense of diminished capacity, here caused by voluntary ingestion of drugs, may be asserted to reduce charge of murder to offense of manslaughter).  Also see State v. Blish, 172 Vt. 265, 271-72 (2001); State v. Shaw, 168 Vt. 412 (1998); State v. Duff, 150 Vt. 329, 331 (1988).  Logically, diminished capacity may also be available to reduce a killing to involuntary manslaughter.  The Supreme Court has held that the intent component of voluntary manslaughter is the same as that required for second degree murder, Blish at 272 (citing State v. Shabazz, 169 Vt. 448, 453 (1999)), and the court may expect that defendants with evidence of diminished capacity will argue that the offense should be reduced to involuntary manslaughter.

 

07-176.  Insanity

 

            The statute, 13 V.S.A. § 4801, places the burden of proof on the defendant.  The Supreme Court upheld the constitutionality of the statute in State v. Messier, 145 Vt. 622 (1985).  The statute does not relieve the State’s burden of proving all of the essential elements – including any mental element, beyond a reasonable doubt.

 

07-301.  Necessity Defense

 

            The Vermont Supreme Court has recognized the necessity defense on numerous occasions, although it appears that the defense rarely succeeds.  See State v. Warshow, 138 Vt. 22 (1979) (long-term hazards of nuclear power plant are not “imminent”); State v. Shotton, 142 Vt. 558 (1983) (defendant entitled to raise defense that she drove out of necessity, to escape from husband and drive to hospital); State v. Squires, 147 Vt. 430 (1986) (driving while intoxicated not justified where defendant’s own conduct created the emergency); State v. Sullivan, 154 Vt. 437 (1990) (insufficient evidence of necessity where hunter said he didn’t affix tag to deer because he was afraid it would come off in transport); State v. Baker, 154 Vt. 411 (1990) (defendant, who bears burden of proving necessity, failed to persuade jury that his driving while license suspended was necessary due to medical emergency); State v. Cram, 157 Vt. 466 (1991) (defendant not entitled to raise defense of necessity, for criminal trespass onto range where GE tested Gatling guns, because he could not have reasonably believed that his actions would abate the harm).

 

            The elements of the defense derive from LaFave & Scott, Handbook on Criminal Law § 50 (1972) (cited in State v. Warshow, 138 Vt. at 22).  The elements are restated in State v. Cram, 157 Vt. 466, 469 (1991).

 

            The necessity defense is not available if the legislature has excluded it from consideration.  State v. Pollander, 167 Vt. 301 (1997) (context of DUI civil suspension proceedings).

 

            In the case known as the “Trial of the Winooski 44,” the necessity defense was successfully invoked by protesters who had refused to leave Senator Stafford’s office until he agreed to hold a public discussion about the government’s involvement with the war in Nicaragua.  The case is official known as State v. Keller et al., No. 1372-4-84 CnCr.  Judge Frank Mahady instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the necessity did not exist or apply.  See the book Por Amor Al Pueblo: Not Guilty! (Front Porch Publishing 1986).  Also see the article by Linda Vance, Esq., “The Necessity Defense in Political Trials:  An Appraisal,” which appeared in The Vermont Bar Journal & Law Digest, Vol. 12, No. 2, April 1986.

 

07-503.  Duress

 

            The instruction on duress, CR07-503, attempts to provide a simple explanation of some complicated issues.  Readers should be aware that duress does not function as a complete defense to all crimes.  When the crime in question is an intentional killing, duress may serve to mitigate the crime to manslaughter.  See 2 LaFave & Scott, Substantive Criminal Law, § 7.11(c) (“Imperfect” Defense of Coercion or Necessity).

 

Chapter 9: Other General Concepts

 

09-011.  Identity of Defendant as First Element

 

            Most criminal charges include identity as the first essential element, with a short instruction such as CR09-011.  In some cases it may be appropriate to elaborate, such as where the issue of identity turns on eyewitness identification.  See CR05-601 and the accompanying notes.  The essential element of identity may be shown by circumstantial evidence.  State v. Danforth, 2008 VT 69, 184 Vt. 122.

 

09-021.  Alibi

 

            The instruction explains that the jury should return a verdict of not guilty if they have a reasonable doubt as to whether defendant was present at the time and place alleged.  State v. Ovitt, 148 Vt. 398, 402–03 (1987).  Defendant does not bear any burden of proving an alibi, because it is always the burden of the state to prove that defendant was the one who committed the charged offense.  Id.; Stump v. Bennett, 398 F.2d 111, 114–15 (8th Cir. 1968).  Even if defendant does not persuade the jury that he or she was at some other specific place at the time of the alleged offense, the jury may still question whether the state’s evidence proved beyond a reasonable doubt that defendant was the one who committed the charged offense. 

 

            In some cases, however, the state may introduce affirmative evidence showing that defendant’s evidence of alibi is not only unworthy of belief but actually fabricated or false.  In these cases, the judge may decide to instruct the jury that if they find the alibi evidence to be actually fabricated or false beyond a reasonable doubt, then they may consider the attempt to fabricate evidence to be some evidence of consciousness of guilt that may be considered along with all of the other evidence in the case.  State v. Forty, 2009 VT 118; State v. Ovitt, 148 Vt. 398, 402–03 (1987); State v. Ladabouche, 127 Vt. 171, 177 (1968); State v. Conley, 107 Vt. 72, 76 (1935); State v. Ward, 61 Vt. 153, 194 (1888).

 

            Use of the “false or fictitious alibi” language requires a distinction between actual fabrication of evidence and mere failure to establish an alibi.  An instruction that suggests that the jury may infer guilt if the defendant offers an alibi defense but fails to prove it is impermissible because it “implies a shifting of the burden of proof from the state to the defendant, and as such, violates due process.”  Ovitt, 148 Vt. at 402.  Use of the “false or fictitious alibi” instruction, therefore, is best limited to cases in which the state has introduced affirmative evidence tending to show the outright falsity of the alibi.  Forty, 2009 VT 118, ¶ 18.

 

            Additional caution is warranted because “consciousness of guilt” evidence (e.g., evidence of flight, or false exculpatory explanations offered to a police officer) has limited probative value and is not sufficient by itself to support a conviction.  State v. McAlister, 2008 VT 3, ¶¶ 28, 32–33, 183 Vt. 126 (Dooley, J., dissenting); State v. Onorato, 171 Vt. 577, 578–79 (2000) (mem.); State v. Unwin, 139 Vt. 186, 193 (1980).  The judge may decide whether to give the “false or fictitious alibi” instruction based on the circumstances of the case and the arguments of counsel.

 

09-051.  Causation

 

            In most cases, the court should not elaborate on the meaning of causation, because jurors already understand it.  The description of “efficient intervening cause” is appropriate only if there is evidence supporting it.  Nevertheless, there will be cases in which elaboration is desirable and appropriate.  In such cases the lawyers should raise the issue with the judge.

 

            The Vermont Supreme Court has indicated approval of a short, simple explanation of causation, in State v. Johnson, 158 Vt. 508, 512 (1992).  Recently, the Court has affirmed that the defendant’s actions must be a cause, rather than the cause of the harm.  State v. Martin, 2007 VT 96, ¶ 40, 182 Vt. 377.  Martin disapproved of a statement from State v. Yudichak, 151 Vt. 400, 403 (1989), that the defendant’s acts had to have been the cause of the harm, and reaffirmed the earlier explanation of causation from State v. Rounds, 104 Vt. 443, 453 (1932), that “respondent’s unlawful acts need not be the sole cause of death; it is sufficient if they were a contributory cause.”

 

09-201.  Attempt

 

            The instruction recognizes that an attempt requires an act coupled with a specific intent.  Some of the language derives from State v. Morse, 130 Vt. 92, 94 (1971).

 

09-301, 305.  Accomplice Liability

 

            The instruction on accomplice liability states the general rule from State v. Barr, 126 Vt. 112 (1966), and State v. Orlandi, 106 Vt. 165 (1934).  The Supreme Court has re-stated and clarified the rule in the context of felony murder, in the companion cases State v. Bacon, 163 Vt. 279 (1995), and State v. Hudson, 163 Vt. 316 (1995).  The requirement that the defendant must have acted with the same intent as that of the principal perpetrator is discussed in Bacon, 163 Vt. at 289.  See State v. Doucette, 143 Vt. 573 (1983) (reinterpreting Vermont’s felony murder statute, 13 V.S.A. § 2301).

 

            These instructions note that State has charged the defendant as an accomplice.  If the evidence is unclear about who was the principle actor, the instructions should explain that the State may prove that the defendant committed the crime either as an accomplice, or as the principle actor.  In State v. Green, 2006 VT 64, 180 Vt. 544, the Supreme Court held that it was not plain error for the court to instruct, on the actus reus element, that “the defendant or his accomplice” must have sold the heroin.  The instruction meets the constitutional requirement that the jury reach a unanimous verdict on the essential elements of the crime.  Compare State v. Couture, 146 Vt. 268 (1985) (where the jury was told it could convict the defendant of kidnapping, for confining any one of the five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element that the defendant had confined a particular person).

 

            Accomplice liability may be shown by encouragement by someone who was present at the scene.  See State v. Orlandi.  However, the committee questions whether a defendant may be convicted of accomplice liability based on encouragement by someone who was not present at the scene.  For that reason, “encouragement” is included in CR09-301, but not in CR09-305.

 

            The committee recognizes that the jurors might be unfamiliar with the term “express agreement.”  The following definitions appear in Black’s Law Dictionary (6th ed.):

 

Express.  Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous.  Declared in terms, set forth in words.  Directly and distinctly stated.  Made known distinctly and explicitly, and not left to inference. . . .  Manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.  The word is usually contrasted with “implied.” [citations omitted].

 

09-601, 606.  Territorial Jurisdiction

 

            This instruction should be given only if the territorial jurisdiction is a material issue in the case.  See, e.g., State v. Pellerin, 164 Vt. 376 (1995), and State v. Mosher, 143 Vt. 197 (1983).  The pertinent statute provides the following:

 

            13 V.S.A. § 2. Crimes committed partly outside state.

 

            A person who, with intent to commit a crime, does an act within this state in execution or part execution of such intent, which culminates in the commission of a crime either within or without this state, shall be punished for such crime in this state in the same manner as if the same had been committed entirely within this state. A crime committed by means of an electronic communication, including a telephonic communication, shall be considered to have been committed at either the place where the communication originated or the place where it was received. 

 

            The statute, and the instruction, include some difficult concepts.  The committee recommends tailoring the instruction to the circumstances of the case.  The instruction given should use the defendant’s name, and it probably should also name any other locations that might be involved.

 

            Instruction CR09-606 provides a simpler version of the instruction on territorial jurisdiction.  It was drafted for use in a case where a single act was alleged, and where the act might have occurred in either New Hampshire or Vermont.

 

 

Chapter 10: Definitions

 

10-311.  Definition of “Family Member”

 

            Although the definition of “family member” sounds simple, there are a number of unresolved issues, having to do with past marriages, distant relatives, etc.  For recent guidance from the Vermont Supreme Court, see Embree v. Balfanz, 174 Vt. 560 (2002).

 

10-321.  Definition of “Firearm”

 

            The committee’s understanding is that the word “firearm” should be construed broadly to include guns, pistols, revolvers, rifles, etc.  The definition in CR10-321 derives from 13 V.S.A. § 3019.  Although the statute limits the use to the particular section of the criminal code, there is no indication that the word “firearm” should be construed more narrowly in other contexts.

 

10-418.  Definition of “Harassing” (in context of violation of condition of release)

 

            The definition derives from various dictionary definitions.  Black’s Law Dictionary (6th ed.) provides the following discussion:

 

Harassment. . . .  Term is used in variety of legal contexts to describe words, gestures and actions which tend to annoy, alarm and abuse (verbally) another person. . . .  A person commits a petty misdemeanor if, with purpose to harass another, he (1) makes a telephone call without purpose of legitimate communication; or (2) insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; or (3) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or (4) subjects another to an offensive touching; or (5) engages in any other course of alarming conduct serving no legitimate purpose of the actor.    Model Penal Code, § 250.4.

 

 

Chapter 20:  Arson and Burning (Title 13, chapter 11)

 

            The act of arson is described under the statute in various ways, applying, for example, to someone who “burns” or “sets fire to” or “causes [a structure] to be burned.”  The terms “burn” and “set fire to” are essentially synonymous.  State v. Babcock, 51 Vt. 570, 576-77 (1879).

 

            An actual burning need not occur for the crime of attempted arson.  See 13 V.S.A. § 509 (attempts); State v. Dennin, 32 Vt. 158 (1859).  In one case where the defendant was found kneeling in the middle of the floor, matches in hand, together with a cone-shaped roll of newspaper, with a jar of paint thinner beside him and in the presence of a strong odor of gasoline, while the apartment was dark, and the striking of a match would have consummated the crime, this evidence supported a conviction for attempted arson.  State v. Woodmansee, 124 Vt. 387, 391 (1964).  In another case, where the defendant had supplied flammable material, and disabled a sprinkler system which would have stopped the fire, the evidence sufficed to prove that he had participated in the planning of the illegal act, and had furthered the act.  State v. Polidor, 130 Vt. 34, 36 (1971).  It is a crime to procure an attempted burning as well as an actual burning.  State v. Ciocca, 125 Vt. 64 (1965).

 

            The definition of “structure” derives from the statutes on municipal and regional planning and development, 24 V.S.A. § 4303(11).

 

            The word “wilfully,” as used in the statute, means intentionally and by design.  The word “maliciously” has a darker meaning, and requires in addition a deliberate and evil intention to destroy the property.  State v. Sylvester, 112 Vt. 202, 206 (1941).

 

            After discussion, the committee has included the instruction on a presumption that a fire was the result of an accident or some natural cause, as long as it is balanced by the instruction that an intentional burning may be proven by circumstantial evidence.  These two concepts are discussed together in State v. Bessette, 129 Vt. 87, 89-90 (1970).

 

            “[I]n order to prove the corpus delicti of arson it is not sufficient to show a burning, which may have been the result of an accident.  It must be proved beyond a reasonable doubt that the burning was not accidental, but was wilfully and maliciously caused by some person who was morally responsible for his [or her] actions.”  State v. Teitle, 117 Vt. 190, 205 (1952).

 

 

Chapter 21: Assault and Robbery (Title 13, chapter 13)

 

21-011, et seq.  Assault and Robbery

 

            The instructions on Assault and Robbery, 13 V.S.A. § 608, should be tailored to the specific evidence in the case.  The “assault” which is part of “assault and robbery” incorporates the elements of simple assault under §§ 1021 and 1023.  State v. Reynolds, No. 2008-452 (Vt. Nov. 2009) (unpub. mem.); State v. Francis, 151 Vt. 296 (1989).  Any instructions on identity or causation may be expanded or contracted, depending on the significance of those issues in the case.  The definition of “bodily injury” is found in 13 V.S.A. § 1021(1).  The definition of “dangerous weapon” derives from State v. Deso, 110 Vt. 1, 8 (1938).  A gun may be considered a “dangerous weapon” whether or not it is loaded.  State v. Parker, 139 Vt. 179 (1980).  Other relevant cases include State v. Powell, 158 Vt. 280 (1992); State v. Dennis, 151 Vt. 223, 224 (1989); State v. Murphy, 128 Vt. 288, 291-92 (1970); and State v. McClellan, 82 Vt. 361 (1909).

 

 

Chapter 22.  Breach of the Peace; Disturbances (title 13, chapter 19)

 

22-011, et seq.  Simple Assault

 

            There are many options within the simple assault statute, 13 V.S.A. § 1023.  The committee has separated attempting to cause bodily injury (CR22-011) from causing bodily injury (CR22-021).

 

            The definition of “recklessly” derives from State v. Hoadley, 147 Vt. 49, 55 (1986) (quoting the Model Penal Code definition of “recklessly”); and State v. O’Connell, 149 Vt. 114, 115-16 (1987) (applying the definition in case involving § 1023(a)(1)).

 

            “Bodily injury” is defined in 13 V.S.A. § 1021(1).  “Serious bodily injury” is defined in 13 V.S.A. § 1021(2).  “Deadly weapon” is defined in 13 V.S.A. § 1021(3).  Also see State v. Dennis, 151 Vt. 223 (1989); State v. Kennison, 149 Vt. 643 (1987); State v. Galvin, 147 Vt. 215, 216-18 (1986); State v. Martel, 142 Vt. 210 (1982); State v. Blakeney, 137 Vt. 495, 501 (1979); and State v. D’Amico, 136 Vt. 153 (1978).

 

22-036.  Simple Assault (with a deadly weapon)

 

            The term “deadly weapon” is defined in 13 V.S.A. § 1021(3).  Research indicates that the test is an objective one, as explained in the following case from New Hampshire:

 

            The term “known” is commonly understood as meaning “generally recognized.”  Webster’s Third New International Dictionary 1253 (unabridged ed. 1961).  Thus, the legislature clearly intended to limit the definition of deadly weapon to those instruments which are objectively understood to be capable of causing death or serious bodily injury in the manner in which they are used, intended to be used, or threatened to be used. . . .

 

State v. Hatt, 740 A.2d 1037, 1038 (N.H. 1999) (original emphasis).

 

            In a recent Vermont case, there was sufficient evidence that the knife used was a deadly weapon, because the stabbing manner in which it was used to inflict injury was known by defendant to be capable of producing serious bodily injury.  State v. Turner, 2003 VT 73, 175 Vt. 595.      

 

22-041.  Simple Assault (physical menace)

 

            If the defendant used a gun, the State need not prove that the gun had a present ability to fire.  An apparent ability to inflict serious bodily injury is sufficient.  State v. Riley, 141 Vt. 29, 32 (1982). The State must prove that the defendant intended to place the victim in fear of serious bodily injury.  The jury may determine intent from the defendant’s conduct and all the surrounding circumstances.  State v. Godfrey, 131 Vt. 629 (1973).

 

22-046.  Simple Assault by Mutual Consent

 

            See 13 V.S.A. § 1023(b); State v. Sturgeon, 140 Vt. 240, 244 (1981).

 

22-081.  Aggravated Assault

 

            The definition of “serious bodily injury” is found in 13 V.S.A. § 1021(2).  “Circumstances manifesting an extreme indifference to the value of human life” are those events surrounding the imposition of serious bodily injury which demonstrate a blatant disregard for the victim’s life.  State v. Joseph, 157 Vt. 651 (1991); State v. Saucier, 512 A.2d 1120, 1125 (N.H. 1986).

 

22-121, 22-126.  Reckless Endangerment

 

            Based on case law, the State must prove actual danger.  If the charge is that the defendant pointed a firearm at the victim, the firearm must have been operational.  See State v. Longley, 2007 VT 101, 182 Vt. 452; State v. Emilo, 146 Vt. 277 (1985); State v. McLaren, 135 Vt. 291 (1977) (overruling part of State v. Cushman, 133 Vt. 121 (1974)).

 

            The statute, 13 V.S.A. § 1025, was amended in 2000 by the addition of the phrase “and whether or not the firearm actually was loaded.”  Thus, the State need not prove that the firearm was loaded.  However, the State still must prove that it was operational or operable.  State v. Messier, 2005 VT 98, 178 Vt. 412.  The word “operational” means that the firearm was capable of operation.  It need not be loaded and cocked.

 

            Even though the statute describes a presumption, the model instruction is drafted to describe a permissive inference, to avoid a potential problem with conclusive presumptions under Sandstrom v. Montana, 442 U.S. 510, 514 (1979).

 

            When a defendant is charged with reckless endangerment under 13 V.S.A. § 1025 for aiming an unloaded firearm, the judge and the attorneys should be aware of another statute, 13 V.S.A. § 4011, under which the aiming of a firearm may be punished by a fine not exceeding $50.  The existence of § 4011 may affect a judge’s interpretation of § 1025 when the charge is based on aiming an unloaded firearm.

 

22-151, -156, -161, -166, and -171.  Disorderly Conduct                 

            Under the introductory language of the statute, 13 V.S.A. § 1026, the state may charge that the defendant either (1) acted with intent to cause public inconvenience or annoyance, or (2) recklessly created a risk thereof.  If the defendant is charged with an intent to cause public inconvenience, the State must prove that the defendant acted purposely, with the conscious object of causing public inconvenience.  State v. Jackowski, 2006 VT 119, 181 Vt. 73.

 

22-151.  Disorderly Conduct (violent, tumultuous or threatening behavior)

 

            The word “threaten” includes an element of volition.  A threat is a communicated intent to inflict harm on person or property.  Threatening behavior is behavior that communicates the requisite intent.  (Black’s Law Dictionary).  The statute requires some aspect of intent.  See State v. Cole, 150 Vt. 453, 456 (1988).

 

22-161.  Disorderly Conduct (abusive or obscene language)

 

            CR22-161 is designed for a charge of disorderly conduct based on abusive or obscene language under 13 V.S.A. § 1026(3).  The scope of the statute is narrowed by judicial gloss, to protect free speech under the first amendment.  The committee drafted this instruction following the Supreme Court’s decision in State v. Allcock, 2004 VT 52, 177 Vt. 467.  Earlier the Court had recognized, in State v. Read, 165 Vt. 141 (1996), that the statute may only be applied to the “fighting words” exception described in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

 

            In Allcock, a 3-2 majority of the Court upheld the defendant’s conviction based on recklessness (as opposed to a more specific intent), and CR22-161 is drafted with recklessness as an option.  The committee also agrees with a point made in Justice Dooley’s dissent, that the “fighting words” requirement is an essential element to be proven, and not just a synonym for “abusive language.”  See Allcock, 2004 VT 52, ¶ 23.

 

22-166.  Disorderly Conduct (disturbing a lawful assembly)

 

            CR22-166 is designed for a charge of disorderly conduct based on disturbing a lawful assembly without lawful authority, under 13 V.S.A. § 1026(4).  The model instruction derives from the charge given in State v. Maunsell, No. 489-4-05 Wrcr.  It includes a brief description of first amendment rights, explaining that there are limits to the right to free speech, and that one person does not have a right to exercise free speech in a way that prevents others from exercising their own rights of free association and discussion.  The fifth element was added in 2009 in response to the decisions in State v. Colby and State v. Wardinski, 2009 VT 28.

 

22-201.  Disturbing the Peace by Telephone or Other Electronic Communications

 

            The statute is written in the disjunctive, and the prosecution must select the specific act or acts which make up the crime so that the defendant can be sufficiently apprised of the charges against which he or she must defend.  V.R.Cr.P. 7(b); State v. Hastings, 133 Vt. 118 (1974).  It is not enough that a threat is made during a phone call.  The intent element must exist at the time the telephone call is made.  State v. Wilcox, 160 Vt. 271, 275 (1993).  The statute, 13 V.S.A. § 1027(b), authorizes the court to instruct the jury on drawing inferences regarding the defendant’s intent.

 

22-231, et seq.  Simple Assault on Law Enforcement Officer

 

            There is an essential element of constructive knowledge, which is satisfied if the defendant knew or should have known that the victim was a law enforcement officer.  State v. Roy, 151 Vt. 17, 22 (1989); State v. Galvin, 147 Vt. 215 (1986); State v. Peters, 141 Vt. 341, 348 (1982).  The term “law enforcement officer” is defined in V.R.Cr.P. 54(c)(6).  The element of performing a lawful duty is discussed in State v. Hart, 149 Vt. 104 (1987); and State v. Desjardins, 142 Vt. 255, 258 (1982).  Excessive force is discussed in Peters, 141 Vt. at 347.

 

22-301.  Violation of Abuse Prevention Order

 

            The instruction, as drafted, does not include a mental element.  The text of the statute, 13 V.S.A. § 1030, does not refer to any mental element.  The State does not have to prove that the defendant intended to violate the order, or even that the defendant knew his or her conduct would violate the order.  State v. Crown, 169 Vt. 547 (1999).  A person who is served with an abuse prevention order “has the responsibility to read and understand the order and conform his [or her] conduct to it.”  State v. Mott, 166 Vt. 188, 197 (1997).

 

            In Mott, the Supreme Court expressed approval of the instruction the trial court had given on the mens rea.  Id. at 197 (“trial court correctly charged on the mens rea element”).  That instruction, which is quoted on pages 195-96, essentially requires a showing that the defendant knew he was sending his letter, and that it wasn’t a mistake, an accident, or a misunderstanding.  The concept that the defendant knew what he was doing reflects the requirement of “general intent.”

 

            However, it is not clear that an instruction on general intent is helpful to the jury.  The committee believes that, in most cases, giving the instruction is not helpful.  See further discussion of “general intent” in the notes under Chapter 6 -- Mental Elements.

 

            In the case where a defendant innocently violates an order by inadvertently encountering the other person on the street, where the order prohibits coming within a certain distance of the other, an instruction on general intent would not solve the problem.  Instead, the solution to this problem is to draft the orders using more specific language.  For example, a defendant could be ordered not to knowingly come within a certain distance of the other person.  Under that scenario the State would have to prove that the defendant knew or should have known that he or she was coming within the prohibited distance, to show a violation of the order.  However, an instruction requiring the State to prove that the defendant knowingly violated the order would differ from an instruction on the mental element known as “general intent.”  If the attorneys in a given case believe that the court should instruct the jury on general intent, the attorneys should submit their request to the judge, along with a proposed instruction.  V.R.Cr.P. 30.

 

            The definition of “harassing” derives from 13 V.S.A. § 1061(4), the former statutory definition in the context of stalking.  This definition is more specific, and requires a greater showing than the broad definition which the Supreme Court criticized in State v. Goyette, 166 Vt. 299 (1997).  There are alternative definitions of “harassing” in CR10-418 and CR10-421.  The definition of “following” derives from State v. Malshuk, 2004 VT 54, 177 Vt. 475.

 

22-331.  Domestic Assault

 

            The definition of “household member,” and an explanation of “dating,” derive from the statute at 15 V.S.A. § 1101(2).

 

22-336.  Domestic Assault -- Fear of Imminent Serious Bodily Injury

 

            It is not clear under Vermont law whether the court should instruct the jury with regard to the reasonableness of the victim’s apprehension.  As a penal statute, 13 V.S.A. § 1042 is to be accorded a strict construction, and the “rule of lenity” applies.  However, the statute appears to have been enacted to address the unique dynamic of domestic assault cases, where one party knows about traits of the other party which may be subject to exploitation in a manner that would not be operative in a case involving assaults among strangers.  This dynamic is known as “pushing buttons.”

 

            The case State v. Riley, 141 Vt. 29 (1982), discussed the matter of apprehension, indicating that Vermont adheres to the civil notion of assault by menace, but the decision does not address the question of whether the standard is one of reasonableness or a purely subjective test (“a threat of immediate battery resulting in apprehension, even when intended only as a bluff, is so likely to result in a breach of the peace that it should be a punishable offense”).  One may argue that, in codifying the offense of domestic assault, the legislature did not intend the application of an objective standard.  A subjective standard might be appropriate, given the unique circumstances of violence within the family and other close relationships, and the operative effects of such phenomena as patterned abuse and battered women’s syndrome.

 

            Under the common law of civil assault, apprehension of imminent battery is subject to an objective test of reasonableness:  The apprehension must be one which would normally be aroused in the mind of a reasonable person.  However, there is authority to the contrary, the theory being that “if the defendant has knowledge of the plaintiff’s peculiar and abnormal timidity, and intends to act upon it, there should be a right to recover.”  Prosser and Keeton, Law of Torts, § 10.  Prosser also notes that the Restatement of Torts (Second) § 27 provides that reasonableness of the victim’s apprehension is irrelevant, as long as the defendant acts with intent to place the other in apprehension of immediate bodily harm.

 

            In at least one case, the trial court declined to instruct the jury as to either standard, over objection of both the State and Defendant, who had each requested instructions favorable to their respective theories.  The court indicated that no instruction would be given as to the standard for assessment of apprehension unless, upon deliberation, the jury requested clarification.  The court also pointed out that the jury would be instructed that each of the elements, including fear of imminent serious bodily injury, would have to be established beyond a reasonable doubt, and that the jurors were obliged to consider all pertinent evidence and surrounding circumstances in their assessment of proof of the element of placing another in fear of imminent harm as well as all other elements.

 

22-351, -356.  First Degree Aggravated Domestic Assault and Transition to Domestic Assault

 

            The defendant has a right to choose between a “hard” or “soft” transition.  The hard transition requires a verdict on the highest offense before the jury considers any lesser included offenses.  The soft transition allows jurors to consider the lesser offense if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.”  State v. Duff, 150 Vt. 329, 336-37 (1988).  The committee has used “soft” transitions, because most defendants prefer “soft” transitions over hard.  The following is an example of a “hard” transition, in case the defendant prefers that approach:

 

            You must first consider the charge of first degree aggravated domestic assault.  If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations.  If you decide that the State has not proven each and every one of the essential elements of first degree aggravated domestic assault, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of domestic assault.

 

22-361, -362.  First Degree Aggravated Domestic Assault

 

            The instructions on first degree aggravated domestic assault, under 13 V.S.A. § 1043, illustrate the difficulty of deciding whether to charge an explicit element of intent.  On one hand, CR22-362 includes an explicit element of intent because the charge would be vague without it.  The terms “using” and “deadly weapon” are both vague unless they are put into context, and thus it is helpful to examine the defendant’s intent.  See State v. Stanislaw, 153 Vt. 517, 523-24 (1990) (describing factors to consider in determining implied elements of mens rea).  On the other hand, instruction CR22-361, charging that the defendant threatened to use a deadly weapon, does not include an explicit element of intent, because to “threaten” means to communicate an intent to inflict harm upon the other person.  It is not necessary to charge a separate explicit element of intent.

 

22-371, -372.  Second Degree Aggravated Domestic Assault -- Violation of Court Order

 

            The statute at 13 V.S.A. § 1044(a)(1) does not specifically require notice of the court order, and the model instruction does not include an element that the defendant received a copy of the order.  (Also see CR22-506, aggravated stalking under 13 V.S.A. § 1063(a)(1)).  In contrast, the statute for violation of an abuse prevention order (13 V.S.A. § 1030) specifically requires notice.  Notwithstanding this difference, the committee notes that, in the rare case when the defendant has not received notice of the order, it would be unfair to consider violation of the order as an aggravating factor.  In such cases, the element of notice must be proven.

 

            There are two versions of this instruction, CR22-371 and CR22-372.  The first version includes violation of a criminal court order as the fifth essential element, whereas the second version treats that element as an enhancement element that must be proven in the second phase of a bifurcated proceeding.  Bifurcation is appropriate when the prejudice arising from the introduction of an existing criminal court order outweighs any relevance that the order might have to the charged offense.  State v. Brillon, 2010 VT 25.  A judge may select from the two instructions, based on the circumstances of the case and arguments of counsel.

 

22-501, -502.  Stalking

 

            The stalking statutes are relatively new, and there are some open questions concerning the proper interpretation of the statute.  Areas of uncertainty include (1) the meaning of “legitimate purpose,” and (2) whether specific intent must be proven.  Also note that the legislature amended the statutes in 2005.  Some of the model instructions apply to pre-amendment behavior; whereas some of them apply to post-amendment behavior.  See State v. van Aelstyn, 2007 VT 6, 181 Vt. 274 (upholding conviction based on prior statute).

 

            Under 13 V.S.A. § 1061(1)(A), the State must prove that the defendant’s course of conduct “serves no legitimate purpose.”  It is not clear what the court can say to help explain this element.

 

            The original stalking statute, § 1062, prohibiting intentional stalking, was ambiguous regarding the specific intent that needed to be proven.  Applying the rule of lenity, the committee interpreted the statute as requiring proof that the defendant intended to cause the specific harm (i.e. the defendant intended to cause the victim to fear for his or her physical safety, or the defendant intended to cause the victim substantial emotional distress).  However, the 2005 amendments to the definitions section changed the meaning of “stalk” to a more objective standard.  Whereas the earlier definition required a course of conduct which “causes the person to fear for his or her physical safety or causes the person substantial emotional distress,” the post-2005 definition requires a course of conduct which “would cause a reasonable person to fear for his or her physical safety or would cause a reasonable person substantial emotional distress.”  13 V.S.A. § 1061(1)(B). 

 

Based on the 2005 amendments to the statute, the committee amended the mental element for stalking to reflect the view that the State must show that the defendant’s intentional conduct would cause a reasonable person to fear for his or her physical safety, or that it would cause a reasonable person substantial emotional distress.  These amended instructions appeared in CR22-502, 22-507, 22-522, and 22-527.

 

The committee amended CR22-502 again in 2009 in response to State v. Hinchliffe, 2009 VT 111, and State v. Ellis, 2009 VT 74, 186 Vt. 232, which suggested that stalking is not a specific intent crime.  The amendment also clarifies that the third essential element involves an objective standard that is “measured by examining whether a reasonable person in the victim’s circumstances would be afraid.”  Hinchliffe, 2009 VT 111, ¶ 25.

 

22-506, -507.  Aggravated Stalking -- Violation of Court Order

 

            The statute at 13 V.S.A. § 1063(a)(1) does not specifically require notice of the court order, and the model instruction does not include an element that the defendant received a copy of the order.  (Also see CR22-371, second degree aggravated domestic assault, under 13 V.S.A. § 1044(a)(1)).  In contrast, the statute for violation of an abuse prevention order (13 V.S.A. § 1030), specifically requires notice.  Notwithstanding this difference, the committee notes that, in the rare case when the defendant has not received notice of the order, it would be unfair to consider violation of the order as an aggravating factor.  In such cases, the element of notice must be proven.

 

 

Chapter 23: Burglary

 

23-101.  Burglary of an Occupied Dwelling, 13 V.S.A. § 1201

 

            After considering an ambiguity in the statute, the committee concludes that the term “occupied dwelling” means that the building is used as a place of residence.  Accordingly, the State need not prove that someone was physically present in the building at the time of the entry.  Resolving the ambiguity is a matter of statutory construction.  The Vermont statute, § 1201, classifies buildings or structures according to whether or not they are occupied dwellings.  There is no alternative category consisting of “unoccupied dwellings.”  Under these circumstances, the committee agrees with the following interpretation by the Michigan Court of Appeals:

 

            Under Michigan law, a residence need not in fact be occupied when the offense takes place in order for the offense to constitute a breaking and entering of an occupied dwelling. . . .  Any dwelling house habitually used as a place of abode, whether or not an occupant is physically present at the time of the breaking and entering, is an occupied dwelling within the meaning of the statute under which defendant was convicted.  When an inhabitant intends to remain in a dwelling as his residence, and has left it for a temporary purpose, such absence does not change the dwelling into an unoccupied one in the eyes of the law.  The intent to return following an absence controls; the duration of the absence is not material. . . .

 

People v. Traylor, 298 N.W.2d 719, 722 (Mich. App. 1980) (citations omitted).  Also see People v. Abarrategui, 761 N.Y.S.2d 632, 634 (N.Y. A.D. 2003) (hotel was a “dwelling” for purposes of the burglary statute, even if no guests were physically present).  In a case reaching a different result, the statute distinguished between an “inhabited dwelling house” and an “uninhabited dwelling house.”  Given that distinction, the Alabama Supreme Court held that an “inhabited dwelling house” requires the physical presence of an occupant in the building.  Reeves v. State, 16 So.2d 699 (Ala. 1943).

 

 

Chapter 24: Homicide

 

            The task of drafting model instructions for homicide cases has presented the committee with difficult and complex issues.  Areas of concern include (1) the detail to be included in the explanation for the term “unlawful killing,” (2) the explanations for the various mental elements for each degree of homicide, including the lesser included offenses, (3) proper treatment of the transitions, and (4) proper statement of all the requirements for felony murder when accomplice liability is at issue.

 

            Within the explanation for the term “unlawful killing,” the bracketed text is provided for use in a case where the evidence supports a claim that the killing was justified.  See 13 V.S.A. § 2305.  The shorter instruction is preferred in cases lacking any evidence of justification.  However, it is appropriate to spell out a plausible justification if the evidence supports it.  Any additional explanation should be tailored to fit the evidence presented in the case.

 

            Within the area of homicide, instructions on the lesser included offenses are made more difficult by the fact that the mental elements are often described differently for the different degrees.  As one example, first degree murder might require proof of a wilful, deliberate and premeditated killing under 13 V.S.A. § 2301, whereas the mental element for involuntary manslaughter is generally stated as criminal negligence as described in State v. Stanislaw, 153 Vt. 517, 525 (1990).  Usually the instructions for first degree murder do not include an instruction for criminal negligence, unless the manslaughter instruction is given as a lesser included offense.  The idea is that deliberation and premeditation are higher mental states, and proof of the higher culpable mental states will necessarily include proof of any lower mental states.  See State v. Bolio, 159 Vt. 250, 253-54 (1992) (discussion of lower mental states included within higher mental states, in context of aggravated assault).

 

            Second degree murder is a lesser included offense within first degree murder, even though first degree murder might require proof of a wilful, deliberate and premeditated killing, whereas the mental element for second degree murder requires proof that the defendant acted with an intent to kill, or an intent to do great bodily harm, or a wanton disregard of the likelihood that death or great bodily harm would result.  See State v. Johnson, 158 Vt. 508, 518 (1992) (in either felony murder or second-degree murder, the mental element may be premised on any of the three components of the definition of malice enunciated in State v. Doucette, 143 Vt. 573 (1983)).

 

            The committee has concluded that the Supreme Court’s definition of the three-part mental element for second degree murder, as found in Doucette and Johnson, actually sets forth a hierarchy of mental states that comprise the mental element.  The three mental states, from highest to lowest, are “intent to kill,” “intent to do great bodily harm,” and “wanton disregard of the likelihood that death or great bodily harm would result.”  According to this view, proof of the higher mental state will also establish the lower included mental states.  See State v. Bolio, 159 Vt. 250, 253-54 (1992) (context of aggravated assault).  The Supreme Court appears to have adopted this view by holding that an essential element of intent to kill may be proven by evidence that the defendant acted with wanton disregard for life.  State v. Olsen, 165 Vt. 208, 212 (1996).  The Court has also held that there is no inconsistency in a jury finding that the defendant acted with both “intent to do great bodily harm” and a “wanton disregard of the likelihood that the conduct would cause death or great bodily harm.”  State v. Little, 167 Vt. 577, 578 (1997) (mem.).

 

            The conclusion that the three parts of the mental element actually describe a hierarchy tends to resolve an issue that has been raised in a handful of trial court cases.  If the three parts of the mental element were construed as three separate-but-equal elements that may satisfy the mental element for second degree murder, then the trial court would have to take extra steps to ensure jury unanimity, such as by asking the jury to specify which one of the three mental states has been proven beyond a reasonable doubt.  The potential problem is that each juror might find the defendant guilty on one of the three theories, even though the jury as a group does not reach a unanimous verdict regarding which theory has been proven.  As examples of problems with jury unanimity, see Woodmansee v. Stoneman, 133 Vt. 449 (1975), where the jury was presented with two separate theories of accomplice liability, and State v. Couture, 146 Vt. 268 (1985), where the jury was told it could convict defendant of kidnapping, for confining any one of the five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element of defendant’s confinement of a particular person.

 

            In the second trial for felony murder in State v. Bacon (reviewed at 169 Vt. 268 (1999)), the trial court instructed the jury to work toward a unanimous verdict regarding whether the state had proven any one of the three mental states that would satisfy the intent element.  The court further instructed the jury that, if it reached a unanimous verdict, the court would inquire as to which one of the mental states had been proven beyond a reasonable doubt.  This type of instruction raises questions about the appropriate legal consequences where each of the 12 jurors finds that one of the three mental states has been proven, but where the 12 jurors do not agree about which one of the three mental states has been proven.  These questions are resolved when the three separate mental states are applied as a hierarchy.  The Supreme Court appears to have approved this view of the hierarchy in State v. Little, 167 Vt. 577 (1997) (mem.), and State v. Olsen, 165 Vt. 208, 212 (1996).

 

            There also may be some open questions concerning the precise distinction between second degree murder and voluntary manslaughter.  The Supreme Court has stated that “the intent component of voluntary manslaughter is the same as that required for second degree murder – actual intent to kill, intent to do serious bodily injury, or extreme indifference to human life.”  State v. Blish, 172 Vt. 265, 272 (2001) (citing State v. Shabazz, 169 Vt. 448, 453 (1999)).  The distinction is that “[v]oluntary manslaughter is an intentional killing committed under extenuating circumstances that may negate willfulness, such as sudden passion or provocation that would cause a reasonable person to lose control.”  Blish, 172 Vt. at 270 (quoting State v. Hatcher, 167 Vt. 338, 345 (1997), and citing numerous other cases).  See further discussion of this distinction below.

 

24-011.  Murder By Means Of Poison

 

            Under the statute, 13 V.S.A. § 2301, murder by means of poison is defined as first degree murder.  LaFave and Scott have explained the nature of this crime as follows:

 

            It is not necessarily murder by poison to kill another person with poison, as where one administered poison innocently and for a lawful purpose and yet produces a death.  The homicide must first amount to murder, either because the defendant had an intent to kill or do serious bodily injury, or because his conduct evinced a depraved heart, or because the death by poison resulted from the defendant’s commission or attempted commission of a felony.  A poison is not necessarily something administered internally; it may be inhaled or injected.

 

2 LaFave and Scott, Substantive Criminal Law (1986), § 7.7 at 243 (footnotes omitted).  One of the cases cited in the footnotes defines “poison” as meaning “any substance introduced into the body by any means which by its chemical action is capable of causing death.”  State v. Jeffers, 661 P.2d 1105, 1126 (Ariz. 1983) (cited in LaFave and Scott, § 7.7 at 243, footnote 49).  Jeffers held that heroin is considered a poison in the criminal context.  Id.

 

            There are few Vermont cases dealing with, or discussing, murder by poison.  See Rogers v. State, 77 Vt. 454 (1905) (murder by chloroform); State v. Sargood and Doyle, 77 Vt. 80 (1904) (poisoning colts and attempting to poison two persons); State v. Meaker, 54 Vt. 112 (1881) (murder by poison); State v. McDonnell, 32 Vt. 491 (1860) (“Killing by poison indicates malice, where the poison is given in such quantities as ordinarily to produce death.”).  The State must show a state of mind sufficient to prove murder.  State v. Bacon, 163 Vt. 279 (1995) (context of felony murder).

 

            Cases from other jurisdictions provide interesting reading, and also illustrate some of the difficulties that may arise when the proof is by circumstantial evidence.  See People v. Hanei, 403 N.E.2d 16 (Ill. App. 1980), cert. denied, 450 U.S. 927 (thalium on a doughnut); Langham v. State, 11 So.2d 131 (Ala. 1942) (insufficient evidence to show death by poison); Edge v. State, 164 S.W.2d 677 (Texas Cri. App. 1942) (insufficient evidence that wife murdered husband by putting strychnine in the peregoric); State v. Koontz, 183 S.E. 680 (W. Va. 1936) (proof by circumstantial evidence that defendant gave kids candy she had made with arsenic); Cassell v. Commonwealth, 59 S.W.2d 544 (Ky. App. 1933) (question was whether death by poison was murder or suicide); State v. Hyde, 136 S.W. 316 (Mo. 1911) (questions sufficiency of evidence that the defendant had provided “fever pills” containing strychnine and possibly cyanide); Commonwealth v. Danz, 60 A. 1070 (Pa. 1905) (poisoning with a form of arsenic labeled as “Rough on Rats”); State v. Nesenhener, 65 S.W. 230 (Mo. 1901) (not clear that wife had administered morphine to her husband, or that he had died from morphine poisoning); Johnson v. State, 15 S.W. 647 (Texas App. 1890) (charge of murder by strychnine in the water bucket; case discusses difficulty of explaining burdens of proof).

 

24-021.  Murder By Lying in Wait

 

            Under 23 V.S.A. § 2301, a murder committed “by lying in wait” is murder in the first degree.  There is little or no discussion of this provision in Vermont case law.  In the instruction, CR24-011, the definition of “lying in wait” derives from Black’s Law Dictionary (6th ed.), and from 2 LaFave and Scott, Substantive Criminal Law (1986), § 7.7 at 242.  Similar language may be found in cases from other jurisdictions, including United States v. Shaw, 701 F.2d 367 (5th Cir. 1983); People v. Ward, 27 Cal.App.3d 218, 103 Cal.Rptr. 671 (Cal.App. 1972); State v. Brooks, 445 P.2d 831 (Ariz. 1968); People v. Thomas, 261 P.2d 1, 3 (Cal. 1953).

 

            In a variety of cases, courts have held that watching and waiting alone will not satisfy the element of “lying in wait” if there has been no attempt at concealment or secrecy.  See State v. Brooks, 445 P.2d 831 (Ariz. 1968) (it was not lying in wait to stand outside building with shotgun in hand waiting for victim); People v. Kahn, 198 Cal.App.2d 326, 17 Cal.Rptr. 793 (1961) (there was no element of concealment, where defendant waited for victim in his living room, at the invitation of victim’s family); People v. Merkouris, 297 P.2d 999, 1012 (Cal. 1956) (not lying in wait to sit in parked car across street from victim’s shop).

 

24-101.  Second Degree Murder

 

            It is not entirely clear how the court should instruct the jury on the burden of proof for second degree murder.  Typically an instruction on second degree murder does not include “lack of provocation” as an essential element.  However, if lack of provocation is the difference between second degree murder and manslaughter, then it might be appropriate to include it as an essential element that must be proven beyond a reasonable doubt.  “Where passion or provocation is implicated, the court must instruct the jury that to establish murder the State must prove beyond a reasonable doubt that the accused did not kill under the influence of passion or provocation.”  State v. Hatcher, 167 Vt. 338, 345-46 (1997) (citing State v. Duff, 150 Vt. 329, 333 (1988) (state’s burden of proving mental elements might require disproof of diminished capacity)).  In Mullaney v. Wilbur, 421 U.S. 684 (1975), the United States Supreme Court held that, as a matter of due process, under the common law of the state of Maine, conviction for second degree murder required the state to disprove provocation.  The U.S. Supreme Court has also held that, when the burdens are clearly stated in the statute, a state may constitutionally place the burden of proving mitigation on the defendant.  Patterson v. New York, 432 U.S. 197 (1977).

 

            The committee has not included “lack of provocation” as an essential element that must always be proven in a prosecution for second degree murder.  See, e.g., State v. Blish, 172 Vt. 265 (2001) (lack of provocation not considered as an essential element).  Nevertheless, in a proper case involving substantial evidence of provocation, the lack of provocation becomes an essential element that the state will have to prove beyond a reasonable doubt.  State v. Hatcher, 167 Vt. 338, 345-46 (1997) (citing State v. Duff, 150 Vt. 329, 333 (1988)).

 

24-201.  Voluntary Manslaughter

 

            As explained above, the Vermont Supreme Court discussed the provocation doctrine in State v. Blish, 172 Vt. 265 (2001).  Voluntary manslaughter “is an intentional killing committed under extenuating circumstances that may negate willfulness, such as sudden passion or provocation that would cause a reasonable person to lose control.”  Id. at 270 (quoting State v. Hatcher, 167 Vt. 338, 345 (1997)).  This definition is in accord with a majority of states which recognize voluntary manslaughter as a distinct crime:

 

            Voluntary manslaughter in most jurisdictions consists of an intentional homicide committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing.  The principal extenuating circumstance is the fact that the defendant, when he killed the victim, was in a state of passion engendered in him by an adequate provocation (i.e., a provocation which would cause a reasonable man to lose his normal self-control).

 

Id. at 83 (quoting Vol. 2, LaFave and Scott, Substantive Criminal Law (1986), § 7.10 (Heat-of-Passion Voluntary Manslaughter) at 252).

 

            The LaFave and Scott treatise, cited in Blish for the definition of manslaughter, provides a helpful explanation of the historical reasoning behind the provocation doctrine:

 

            7.10(h) Rationale of Voluntary Manslaughter.  Why is it that there exists such a crime as voluntary manslaughter to aid one who kills when provoked into a passion, yet there is no crime like, say, voluntary theft or voluntary mayhem to aid others who, reasonably provoked into a passion, steal from or maim their tormenters?  The answer is historical.  With most crimes other than murder the English court came to have discretion as to the punishment and so could take extenuating circumstances into account in the sentencing process; but with murder the penalty remained fixed at death, without the possibility of making any allowance for the extenuating fact that the victim provoked the defendant into a reasonable passion.  “The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness.” [note 109]

 

            This, of course, “fails to explain the doctrine’s continued viability,” [note 110] and courts have by and large failed to articulate a modern rationale.  It has been suggested, however, that the present rationale for heat-of-passion manslaughter is that when

 

the provocation is so great that the ordinary law abiding person would be expected to lose self-control so that he could not help but act violently, yet he would still have sufficient self-control so that he could avoid using force likely to cause death or great bodily harm in response to the provocation, then . . . the actor’s moral blameworthiness is found not in his violent response, but in his homicidal violent response.  He did not control himself as much as he should have, or as much as common experience tells us he could have, nor as much as the ordinary law abiding person would have. [note 111]

 

Vol. 2, LaFave and Scott, Substantive Criminal Law (1986), § 7.10(h), at 270. [Note 109 refers to the Report of the Royal Commission on Capital Punishment 52-53 (1953).  Note 110 refers to Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J.Crim.L. & C. 421, 423 (1983).  Note 111 refers to the Dressler article at 466-67.]

24-251.  Involuntary Manslaughter

 

            The instruction for involuntary manslaughter includes the element of criminal negligence, as that term is defined in State v. Stanislaw, 153 Vt. 517, 525 (1990).  It is also possible for the State to charge, and prove, reckless manslaughter.  State v. Brooks, 163 Vt. 245, 250-51 (1995).  A person acts recklessly by consciously disregarding a substantial and unjustifiable risk that death or serious bodily injury will result from his or her conduct.  Id. at 251 (citing Model Penal Code).  In contrast, criminal negligence occurs when the actor should be aware that a substantial and unjustifiable risk exists or will result from his or her conduct.  Id. (citing Stanislaw).  Proof of the higher culpable mental state will include proof of the lower included mental state.  See State v. Bolio, 159 Vt. 250, 253-54 (1992) (context of aggravated assault).

 

            The committee anticipates that the instruction for involuntary manslaughter will most often appear as an instruction on a lesser included offense, and that it will usually be appropriate to give the Stanislaw instruction on criminal negligence.

 

24-301.  First Degree Murder, with Transitions to Lesser Included Offenses

 

            Often, when a defendant is charged with first degree murder, the court also instructs the jury on all of the lesser included degrees of homicide.  Either party may request such instructions, if they are supported by the evidence.  13 V.S.A. § 14.  The Vermont Supreme Court has listed the following four factors to consider, in determining whether a manslaughter instruction is supported by evidence of provocation:  (1) adequate provocation, (2) inadequate time to regain self-control or “cool off,” (3) actual provocation, and (4) actual failure to “cool off.”  State v. Perez, 2006 VT 53, ¶ 13, 180 Vt. 388.

 

            As noted above, the transitions for homicide differ somewhat from the transitions for other crimes, because within homicides, evidence establishing a high mental state will also establish the lower included mental states.  See State v. Bolio, 159 Vt. 250, 253-54 (1992) (discussion of lower mental states included within higher mental states, in the context of aggravated assault).

 

            The defendant has a right to choose between a “hard” or “soft” transition.  The hard transition requires a verdict on the highest offense before the jury considers any lesser included offenses.  The soft transition allows jurors to consider the lesser offense if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.”  State v. Duff, 150 Vt. 329, 336-37 (1988).  The committee generally uses “soft” transitions, because most defendants prefer “soft” transitions over “hard.”  The following is an example of a “hard” transition, in case the defendant prefers that approach:

 

            You must first consider the charge of first degree murder.  If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations.  If you decide that the State has not proven each and every one of the essential elements of first degree murder, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of second degree murder.

 

24-511.  Aggravated Murder (In Custody For Murder)

 

            The instructions to be given following the close of evidence point out that a person need not be confined within a correctional facility in order to be in custody under sentence.  As an example, a prisoner on furlough is still “in custody under sentence.”

 

24-556.  Aggravated Murder (Effecting Escape)

 

            Under the statute, 13 V.S.A. § 2311(a)(5), a murder may be aggravated murder if it is committed for the purpose of “effecting an escape by any person from lawful custody of a law enforcement officer.”  The committee notes an anomaly, in that this section probably does not apply where a prisoner murders a corrections officer for the purpose of effecting an escape.  Corrections officers are not usually considered as “law enforcement officers,” but they are sometimes employed to transport prisoners to and from court hearings.

 

24-561.  Aggravated Murder (Defendant Hired Another to Commit Murder)

 

            The law may be unclear about how explicit an agreement must be before a defendant may be convicted of hiring another to commit murder.  After brief discussion, the committee concluded that this question is best addressed on a case-by-case basis.

 

 

Chapter 25: Kidnapping (Title 13, chapter 55)

 

25-141.  Unlawful Restraint of a Mentally Incompetent Person

 

            The statute, 13 V.S.A. § 2406(a)(2), proscribes the taking or enticing of a “mentally incompetent person” without the consent of the custodian.  If the complaining witness is a mentally incompetent adult, and therefore legally unable to consent, it is not clear whether the State must prove an adjudication of incompetency, or whether the State may simply prove that the person is mentally incompetent.

 

 

Chapter 26:  Larceny and Embezzlement (Title 13, chapter 57)

 

26-051.  Grand Larceny

 

            The Supreme Court explained the definition of grand larceny in State v. Reed, 127 Vt. 532 (1969).  “A person steals if he takes property from one in lawful possession without right, with the intention to keep it wrongfully.”  Id. at 538 (citing Morissette v. United States, 342 U.S. 246).  The question of criminal intent is for the jury to consider according to all the circumstances brought before them.  Id. at 538 (citations omitted).

 

            Larceny requires proof that the defendant “intended to permanently separate the owner from his [or her] property, or at least deliberately act so as to make it unlikely that the owner and his [or her] property would be reunited.”  State v. Hanson, 141 Vt. 228, 232 (1982).  “Larceny specifically requires an intent to steal at the very moment the property in question is taken into possession by the defendant.”  Id. at 232.  The State need not prove that the defendant intended to steal an item of particular value.  State v. Houle, 157 Vt. 640 (1991).

 

            The instructions have a bracketed explanation for fair market value.  The discussion of fair market value is not necessary in cases charging larceny of cash.

 

26-071.  Petit Larceny

 

            When the defendant is charged with petit larceny under 13 V.S.A. § 2502, at issue is whether the property stolen had some monetary value.  It should not be necessary for the State to prove that the value of the property does not exceed $500.  See State v. Nelson, 91 Vt. 168 (1917) (evidence showed that the stolen chickens had some value).  Compare State v. Persons, 117 Vt. 306 (1952), where the Court reversed the conviction for petit larceny, and remanded the case for a jury to determine the value and whether it was over or under $50, and where, upon remand to the trial court, the State dropped the charge of petit larceny and charged defendant with grand larceny.  State v. Persons, 117 Vt. 556 (1953).

 

            Where the money or property need only have “some value,” the jury need not find any particular value, and there is no need to discuss “fair market value.”

 

26-081.  Larceny From the Person

 

            The Vermont Supreme Court discussed the limits of “larceny from the person” in State v. Brennan, 172 Vt. 277 (2000).  Mr. Brennan, a hitchhiker who stole money from the purse in the back seat of the car, was not guilty of larceny from the person.  The item stolen need not be touching the owner, but it must be immediately within the owner’s control or presence.  In State v. Setien, 173 Vt. 576 (2002), the defendant committed the crime of larceny from the person when he ripped a necklace off the victim’s neck.

 

26-201.  Embezzlement

 

            The Vermont Supreme Court has recently reinterpreted the embezzlement statute, 13 V.S.A. § 2531, in the three companion cases State v. Willard-Freckleton, State v. Tanner, and State v. Orfanidis, 2007 VT 67.  Previously the Court had defined embezzlement as “the fraudulent conversion of the property of another by one who is already in lawful possession of it.”  State v. Ward, 151 Vt. 448 (1989).  It was not embezzlement when Mr. Ward took money out of his employer’s cash drawer, because the money was in the constructive possession of the owner.  Also see State v. Rathburn, 140 Vt. 382 (1981).  The new case recognizes the significance of language in the statute to the effect that the money could be in defendant’s possession, or it could be “under his [or her] care,” by virtue of his or her employment.  Willard-Freckleton, 2007 VT 67 at ¶ 10.

 

            The instruction minimizes any emphasis on the type of organization, based on the Supreme Court’s observation that the statutory list exhausts the universe of possible principals.  The precise status of the principal “is a technical distinction that is not an essential element of the crime.”  State v. Joy, 149 Vt. 607, 616 (1988).  Based on Willard-Freckleton, the committee has amended the instruction to apply when the defendant has “care” of the money but not necessarily “possession.”

 

26-411.  Retail Theft (taking merchandise of some value)

 

            In a situation similar to that of petit larceny, the essential element concerning value is that the merchandise taken must have some value.  The State should not need to prove that the value of the property does not exceed $100.

 

26-551, -553, -561, -563.  Theft of Rented Property

 

            The statute, 13 V.S.A. § 2591, is complicated, and the instruction is drafted with seven elements.  CR26-551 and CR26-561 are drafted in the usual format, with a statement of all the elements followed by explanations for all the elements.  Because of the large number of elements, the committee has also drafted alternative instructions, which discuss the elements in order without repeating them in a separate discussion.  Prof. Tiersma has pointed out that this alternative formulation, allowing for shorter instructions, is used in some other states.

 

 

Chapter 27: Sex Crimes (Title 13, chapters 59 and 72)

 

27-031.  Lewd and Lascivious Conduct

 

            The instruction for lewd and lascivious conduct, under 13 V.S.A. § 2601, contains an element of general intent.  The instruction does not elaborate upon intent, because there is no specific intent element (i.e. that the defendant intended to achieve a specific harm or result), and it is not clear whether it is necessary to give any instruction on intent.  The judicial guidance concerning this statute derives from State v. Millard, 18 Vt. 574 (1846), where the Court explained:  “The common sense of community, as well as the sense of decency, propriety, and morality, which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.”  Id. at 577.  The Court also concluded that the conduct in question there was sufficient to support the conviction, as follows (at 577-78):

 

            That the conduct of the respondent, in this case, was lewd and lascivious is beyond question. A public exposure of himself to a female, in the manner this respondent did, with a view to excite unchaste feelings and passions in her and to induce her to yield to his wishes, is lewd, and is gross lewdness, calculated to outrage the feelings of the person, to whom he thus exposed himself, and to show, that all sense of decency, chastity, or propriety of conduct, was wanting in him, and that he was a proper subject for the animadversion of criminal jurisprudence. 

 

            More recently, the Court has held that § 2601 does not contain an element of specific intent on the part of the defendant that he or she be seen committing the act.  State v. Maunsell, 170 Vt. 543, 544 (1999).  The Court explained that, if the Legislature had intended to include a specific intent to achieve a precise harm or result, it would have done so in § 2601, as it did in § 2602.  Id. at 544 (citing State v. Grenier, 158 Vt. 153, 156 (1992)).  Also see State v. Gabert, 152 Vt. 83, 85 (1989) (court need not discuss specific intent as part of Rule 11 colloquy when accepting guilty plea for lewd and lascivious conduct).  In an unpublished opinion, the Supreme Court held that specific intent is not an element of § 2601.  See State v. Gall, No. 2001-512 (unp. decision, December 2002).

 

            The model instruction, CR27-031, includes an element that the defendant intentionally engaged in the conduct alleged in the charge.  This is designed as a general intent instruction; it has been modified from an earlier version to make clear that there is no essential element of specific intent.  This is one of the few instructions from this project containing a general intent instruction.  See notes under Chapter 6.

 

            The instructions as drafted address the difference between lewd and lascivious conduct, under 13 V.S.A. § 2601, and lewdness under 13 V.S.A. § 2632(a)(8).  The conduct under § 2601 must be lewd and lascivious, whereas the conduct under § 2632(a)(8) need only be lewd.  For an instruction on lewdness under § 2632(a)(8), see CR27-041, which includes lewdness as a lesser included offense to lewd and lascivious conduct under § 2601.

 

27-041.  Transition to Lesser Included Lewdness

 

            The defendant has a right to choose between a “hard” or “soft” transition.  The hard transition requires a verdict on the highest offense before the jury considers any lesser included offenses.  The soft transition allows jurors to consider the lesser offense if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.”  State v. Duff, 150 Vt. 329, 336-37 (1988).  The committee has generally used “soft” transitions, because most defendants prefer “soft” transitions over “hard.”  The following is an example of a “hard” transition, in case the defendant prefers that approach:

 

            You must first consider the charge of lewd and lascivious conduct.  If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations.  If you decide that the State has not proven each and every one of the essential elements of lewd and lascivious conduct, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of lewdness.

 

27-051.  Lewd or Lascivious Conduct with a Child

 

            A charge of lewd or lascivious conduct with a child, under 13 V.S.A. § 2602, can involve any part of the victim’s body.  The actual lewd “act upon or with” the body of a child cannot be viewed in isolation from the context in which the touching occurs and, in particular, the intent of the perpetrator.  State v. Squiers, 2006 VT 26, 179 Vt. 388.  “[T]he determination of whether an act is ‘lewd’ under § 2602 depends on the nature and quality of the contact, judged by community standards of morality and decency, in light of all the surrounding circumstances, accompanied by the requisite, specific lewd intent on the part of the defendant.”  Id. at ¶ 11.

 

27-108.  Engaging in Prostitution

 

            The model instruction for engaging in prostitution, 13 V.S.A. § 2632(a)(8), focuses on “the offering or receiving of the body for sexual intercourse for hire,” under § 2631.  The committee is not aware of any prosecution under that section for “the offering or receiving of the body for indiscriminate sexual intercourse without hire.”  The committee’s understanding is that the statutory reference to “sexual intercourse” is limited to the insertion of a man’s erect penis into a woman’s vagina.  See The Oxford Dictionary and Thesaurus (American Edition 1996), at 1388.  The scope of the statute is limited to the ordinary meaning of the term, under the rule of lenity.  This interpretation is consistent with the discussion of prostitution in State v. George, 157 Vt. 580 (1991).

 

27-135.  Inducing Female to Live Life of Prostitution

 

            This instruction, like the instruction for “engaging in prostitution,” focuses on sexual intercourse for hire.  A prosecution for inducing a female to engage in indiscriminate sexual intercourse without hire is unlikely.  Compare State v. Corologos, 101 Vt. 300 (1928) (prosecution for indiscriminate sale of ice cream and beverages on Sunday).    

 

27-211.  Sexual Assault (lack of consent)

 

            Lack of consent may be shown without proof of resistance.  Evidence that the victim’s cooperation arose out of fear may show lack of consent.  State v. Desautels, 2006 VT 84, 180 Vt. 189.

 

 

Chapter 28: Other Crimes Under Title 13

 

28-041.  Endeavoring to Incite a Felony, 13 V.S.A. § 7

 

            Endeavoring to incite a felony differs from an attempt.  State v. Hudon, 103 Vt. 17 (1930).  Endeavoring may be punished as a crime under § 7, whether or not there is any attempt, and whether a resulting attempt succeeds or fails.  State v. Ciocca, 125 Vt. 64 (1965).  The Supreme Court has referred to endeavoring as the crime of solicitation.  The crime of endeavoring may be completed whether or not the crime solicited is actually completed.  See State v. Brown, 147 Vt. 324, 326-27 (1986), where the defendant was convicted as a principal under the doctrine of innocent agent, but where he could have been prosecuted for endeavoring to incite the crime under § 7.

 

            The instruction calls for the insertion of the elements of the incited crime.  Where a defendant is charged with endeavoring to incite a felony, it is probably necessary to list all of the essential elements.  However, the amount of additional description of the felony may depend upon the facts of the specific case.  For a discussion about the appropriate amount of “detailing” see State v. Davignon, 152 Vt. 209 (1989).

 

28-061.  Habitual Criminal, 13 V.S.A. § 11

 

            When the state seeks to penalize a defendant as an habitual criminal, it must provide notice by filing a separate charge.  The defendant is entitled to a bifurcated proceeding, including a jury trial on the second phase to consider (1) the sufficiency of the record alleged as to the prior convictions, and (2) the defendant’s identity as the person previously convicted.  See State v. Angelucci, 137 Vt. 272, 281 (1979); State v. Cameron, 126 Vt. 244, 249 (1967).

 

            The defendant is not entitled to a jury determination as to whether a previous conviction constitutes a felony, because that issue presents a pure question of law.  The court’s determinations as to whether crimes committed in other states would have been felonies in Vermont are reviewed as questions of law.  Angelucci at 285.  This approach avoids the need to ask jurors to compare Vermont statutes with foreign statutes, to match essential elements.

 

            The instruction states: “To be convicted means to be found guilty of a crime and sentenced.”  Under V.R.Cr.P. 32(b), “[a] judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence or conditions of deferment thereof.”  The reporter’s notes explain that “[t]he rule provides for the entry by the clerk of a formal ‘judgment of conviction’ after the sentencing of the defendant.”  V.R.Cr.P. 32(b), reporter’s notes to 1980 amendment, at 182.

 

            The Vermont Supreme Court has held that a judgment of guilt pursuant to a deferred sentence is considered a “conviction” for purposes of reporting a sex offense to the Department of Public Safety for inclusion in the sex offender registry.  See State v. Stoddert and State v. Thompson, 174 Vt. 172 (2002).  The committee believes that Stoddert and Thompson is limited to issues of registration, and does not alter the general rule that to be “convicted” means to be found guilty of a crime and sentenced.

 

28-104.  Cruelty to a Child

 

            Where the statute refers to a person who “wilfully assaults, ill treats, neglects or abandons or exposes [the] child,” the instruction ties the element of wilfulness to each of the possible specific allegations.  The Vermont Supreme Court has stated, in reviewing a complaint of abandonment: “It was essential that the complaint allege that the abandonment was wilful and that it was done in a manner to cause the child unnecessary suffering or to endanger its health.”  State v. Greenough, 116 Vt. 227, 281 (1950).  In this context, “neglect” is not synonymous with “negligence.”

 

28-161.  Cruelty to Animals

 

            Parts of this instruction were drafted in connection with the trial in State v. Stevens, 1481-11-01 Wrcr (DiMauro, J.).  Ms. Stevens was charged under 13 V.S.A. § 352(4), which is a strict liability offense.  See State v. Gadreault, 171 Vt. 534 (2000).  She was found not guilty on all counts.

 

28-166.  Cruelty to Animals – Jury Interrogatories

 

            These jury interrogatories were drafted in connection with the trial in State v. Stevens, 1481-11-01 Wrcr (DiMauro, J.).  The form derives from the earlier case State v. Gadreault, 171 Vt. 534 (2000), where Judge Cheever presided over the trial.  When the State charges the defendant with various options under the statute, stated in the disjunctive, either the State must prove all of the options beyond a reasonable doubt, or the jury must complete jury interrogatories to insure that any verdict is unanimous.  For discussion of this issue, see State v. McDermott, 135 Vt. 47, 50-52 (1977).  The form may be repeated and used for multiple counts.

 

28-206.  False Public Alarm

 

            The definition of “public alarm” derives, in part, from discussion of the term in People v. Kim, 630 N.W.2d 627 (Mich. App. 2001), and in State v. Chakerian, 900 P.2d 511 (Or. App. 1995).  The Michigan Court of Appeals observed that a defendant causes public terror or alarm “any time a segment of the public is put in fear of injury either to their persons or their property.”  Kim, 630 N.W.2d at 630 (quoting from People v. Garcia, 187 N.W.2d 711 (Mich. App. 1971)).  The Oregon Court of Appeals noted that the term “alarm” is defined as “fear or terror resulting from a sudden sense of danger.”  Chakerian, 900 P.2d at 516 (quoting from State v. Moyle, 705 P.2d 740 (Or. 1985)).  The Oregon Court of Appeals also observed that “Public alarm is collective and communal, rather than individual and innately idiosyncratic.”  Chakerian, 900 P.2d at 517.

 

28-261, -266, -271, -276.  False Pretenses and False Tokens

 

            The instructions do not cover all possible violations of the statute, but rather address the more common situations that might arise.  See, e.g., State v. Agosta, 173 Vt. 97 (2001); State v. Allen, 146 Vt. 569 (1986); State v. Bissonette, 145 Vt. 381 (1985); State v. Foley, 140 Vt. 643 (1982).

 

28-301.  Home Improvement Fraud

 

            The model instruction includes the permissive inference set forth in 13 V.S.A. § 2029(c). In drafting the instruction, some members of the committee noted concern that operation of the inference might be overbroad or vague as applied in some circumstances.  Trial counsel should consider whether to raise the issue in a particular case.

 

28-531.  Perjury

 

            The model instruction contains an essential element of wilfulness.  The requirement that the false testimony be given “wilfully” was included as a supplemental instruction in State v. Wood, 99 Vt. 490, 498 (1926).  The jury was told that false testimony given “wilfully” means that it was given knowingly and understandingly.  Id. at 498.

 

            When a defendant is charged with perjury under 13 V.S.A. § 2901, the State must prove that he or she made the false statement in a proceeding in a court of justice.  The model instruction also requires that the defendant made the false statement when he or she was lawfully required to depose the truth, even though it may be presumed that an oath had been administered as required by law.  State v. Lawrence, 134 Vt. 373, 375 (1976) (citing State v. Chamberlin, 30 Vt. 559 (1859)).

 

            “A false statement under oath generally may be punished as perjury only if it was material to an issue in the proceeding in which it was made.”  State v. LaCourse, 168 Vt. 162, 163-64 (1998).  The Supreme Court suggested, without deciding, that the question of materiality is an essential element of the charge that must be submitted to the jury.  Id. at 164 (citing United States v. Gaudin, 515 U.S. 506 (1995)).

 

            Perjury must be proven “by the testimony of two witnesses, or by the testimony of one witness with independent corroborating evidence.”  State v. Tinker, 165 Vt. 548 (1996) (quoting State v. Wheel, 155 Vt. 587, 607 (1990)).  The testimony of one witness, corroborated by the testimony of another or by circumstances, is sufficient, “if thereby the crime is proved beyond a reasonable doubt.”  State v. Woolley, 109 Vt. 53, 57 (1937).  “The independent corroborating evidence must be equal in weight to the testimony of another witness, and it must be, by itself, inconsistent with the innocence of the defendant.”  State v. Tonzola, 159 Vt. 491, 497 (1993) (quoting People v. Fueston, 717 P.2d 978, 980 (Colo. App. 1985), rev’d on other grounds, 749 P.2d 952 (Colo. 1988)).  The Vermont Supreme Court recently affirmed the requirement of corroborating evidence in State v. Hutchins, 2005 VT 47, 178 Vt. 551.

 

28-551.  Resisting Arrest

 

            The statute specifies that the attempt to prevent the arrest must take place “when it would reasonably appear that the latter is a law enforcement officer.”  13 V.S.A. § 3017.  The instruction explains that the element is satisfied by a standard of objective reasonableness, i.e. under all the circumstances, it would have appeared to an objective reasonable observer that the person attempting to make the arrest was in fact a law enforcement officer.

 

28-801, et seq.  Unlawful Mischief

 

            Unlawful mischief is a specific intent crime.  The State must prove that the defendant caused damage purposely or knowingly, but no showing of malice is required.  State v. Patch, 145 Vt. 344, 351-52 (1985). 

 

            The several subsections of the statute, 13 V.S.A. § 3701, relate to the amount of the damage inflicted and the penalties that may be imposed.  The word “value” refers to the amount of the damage inflicted, not the value of the property which is damaged.  State v. Breznick, 134 Vt. 261, 266 (1976).  According to the statutory language, § 3701(c) applies to damages “not exceeding $250.00,” but the committee concludes that § 3701(c) actually applies to damages “of some monetary value.”  This interpretation is supported by Breznick, and by reading the various subsections in pari materia.  The State need not prove that the value of the damages did not exceed $250, and the instructions need not mention the figure of $250.  Where the defendant is charged under § 3701(c), the State may not amend the information during trial to a charge that the damages exceeded $250, under § 3701(b).  State v. Verge, 152 Vt. 93 (1989).

 

            Subsection 3701(d) applies to damages caused “by means of an explosive.”  The definition of “an explosive” derives from 13 V.S.A. § 1603(2).

 

28-871.  Unlawful Trespass (dwelling house)

 

            The unlawful trespass statute, 13 V.S.A. § 3705(d), derives from the model penal code.  The third essential element requires proof of the defendant’s subjective knowledge that he or she was neither licensed nor privileged to do so.  This element may be satisfied by circumstantial evidence.  State v. Cram, 2008 VT 55, 184 Vt. 531 (mem.). 

 

 

Chapter 30: DUI

 

30-011.  Definition of “Alcohol Concentration” -- 23 V.S.A. § 1200(1)

 

            Under the statutory definition, the “alcohol concentration” may be stated as a number, without corresponding units.  Thus the number 0.15 may refer to 0.15 grams of alcohol per 100 milliliters of blood, or it may refer to 0.15 grams of alcohol per 210 liters of breath.  Although the “alcohol concentration” may roughly correspond to the percentage of alcohol in the blood by weight, it is potentially confusing, and incorrect under the statutory definition, to refer to the number as a percentage, such as 0.15 %.

 

30-031.  Under the Influence of Intoxicating Liquor

 

            The Supreme Court has repeatedly upheld an instruction that a driver was “under the influence” if he or she was affected “in the slightest degree” by intoxicating liquor.  This so-called “Storrs instruction,” based on State v. Storrs, 105 Vt. 180, 185 (1933), is appropriate “in cases where testimony supports a claim of loss of control of physical and mental faculties, [but] not where the evidence deals solely with the chemical level of alcohol.”  State v. Carmody, 140 Vt. 631, 638 (1982).

 

            A layperson may testify about his or her observations supporting a conclusion that the defendant was under the influence.  State v. Baldwin, 140 Vt. 501, 515 (1981).  “Recognition of the fact of intoxication requires no particular scientific knowledge or training.”  State v. Coburn, 122 Vt. 102, 107 (1960).

 

30-101.  DUI: Under the Influence of Intoxicating Liquor -- 23 V.S.A. § 1201(a)(2)

 

            DUI has been heavily litigated over many years.  Although DUI law continues to evolve, the basic elements of DUI under 23 V.S.A. § 1201(a)(2) are well established.

            The element of operation is defined broadly under 23 V.S.A. § 4(24).  Operation may consist of turning the ignition switch, State v. Storrs, 105 Vt. 180 (1933), sitting behind the steering wheel with the engine running, State v. Hedding, 122 Vt. 379 (1961), directing the vehicle while it descends a hill by the use of gravity, State v. Lansing, 108 Vt. 218 (1936), attempting to steer the vehicle while it is being towed, State v. Tacey, 102 Vt. 439 (1930), or attempting to extricate the vehicle from a ditch, State v. Parkhurst, 121 Vt. 210 (1959).  The element of operation may be established by the defendant’s admission that he or she had been driving, together with the officer’s observation of the defendant behind the steering wheel.  State v. Constantine, 148 Vt. 629 (1987).  In the DUI context, a charge of “attempting to operate a motor vehicle” means essentially the same thing as “operating a motor vehicle.”  State v. Parker, 123 Vt. 369, 371-72 (1963).

 

            A defendant may be found to have been in actual physical control of a motor vehicle on a highway if the defendant had the potential to operate the vehicle; an “immediate potential” to operate the vehicle is not required.  State v. Stevens, 154 Vt. 614 (1990).  A defendant may be found to have been in “actual physical control” even if he or she only intended to roll up the car windows.  State v. Kelton, 168 Vt. 629 (1998).  A defendant also may be in “actual physical control” despite being asleep or unconscious.  State v. Blaine, 148 Vt. 272 (1987); State v. Trucott, 145 Vt. 274 (1984); State v. Godfrey, 137 Vt. 159 (1979).  The defendant need not have been inside the vehicle and behind the steering wheel.  State v. Stevens, 154 Vt. 614 (1990).   Moreover, conviction of being in actual physical control does not require a demonstration that the defendant’s vehicle was fully operable.  State v. Garber, 156 Vt. 637 (1991).

 

            “Motor vehicle” is defined in 23 V.S.A. § 4(21), as modified by 23 V.S.A. § 1200(6).  The model instruction contains virtually all of the language deriving from § 4(21), but the exceptions are bracketed because they will not be relevant in the usual case involving an automobile or truck.  In unusual cases it may be necessary to modify the instruction by reference to § 1200(6) or other statutes.

 

            “Highway” is defined in 23 V.S.A. § 4(13), as modified by 23 V.S.A. § 1200(7).  Here, too, the model instruction contains most of the statutory language, but some of the words are bracketed because they will not be relevant in the usual case.  In some cases it may be necessary to modify the instruction by reference to § 1200(7) or other statutes.

 

            “Intoxicating liquor” is defined in 23 V.S.A. § 1200(4).

 

            The instruction on the meaning of “under the influence of intoxicating liquor” derives from State v. Storrs, 105 Vt. 180 (1933), and its progeny.  See notes to instruction CR30-031.

 

30-151.  Driving Under the Influence of Other Drug, or Under Combined Influence

 

            In comparison to 23 V.S.A. § 1201(a)(2), there have been relatively few cases interpreting § 1201(a)(3), the charge of operating under the influence of a drug other than alcohol, or under the combined influence of alcohol and another drug.  The most significant difference is that, under § 1201(a)(3), the connection between the impairment and the influence of any drug must be proven by expert testimony.  This difference is explained in State v. Rifkin, 140 Vt. 472 (1981).  Also see the cited cases, State v. Tiernan, 302 A.2d 561 (N.J. County Court 1973), and Smithhart v. State, 503 S.W.2d 283 (Texas Crim. App. 1973).  A later New Jersey case concluded that it is not always necessary to identify the drug.  State v. Tamburro, 346 A.2d 401 (1975).

 

30-171.  DUI: Second Offense under § 1201(a)(2), Phase II Proceeding

 

            When the state seeks to penalize a defendant as a repeat offender, he or she is entitled to a bifurcated proceeding, including a jury trial on the second phase to consider (1) the sufficiency of the record alleged as to the prior convictions, and (2) the defendant’s identity as the person previously convicted.  See State v. Angelucci, 137 Vt. 272, 281 (1979); State v. Cameron, 126 Vt. 244, 249 (1967).  Bifurcated proceedings have been used to address repeat DUI convictions, under 23 V.S.A. § 1210, in State v. Carpenter, 170 Vt. 371 (2000); State v. Porter, 164 Vt. 515 (1996); and State v. Baril, 155 Vt. 344 (1990).

 

            To the extent there may be issues over the use of a prior conviction based on a prior law, or based on a conviction from another state, the defendant is not entitled to a jury determination on whether the prior conviction is sufficient under Vermont law.  Those issues present pure questions of law.  Accordingly, it will not be necessary to instruct the jury about whether a conviction from another state will qualify as a Vermont conviction for DUI under 23 V.S.A. § 1201.  This is consistent with the committee’s approach to habitual criminals, CR28-061.

 

30-221.  DUI: Evidence of Alcohol in the Blood

 

            This instruction derives from State v. Bushey, 149 Vt. 378 (1988).  Although it may be rare, it can happen in a prosecution under 23 V.S.A. § 1201(a)(2) that the numerical result of an evidentiary test is excluded, where the State has obtained an evidentiary test but is unable to relate the test result back to the time of operation.  See State v. Dumont, 146 Vt. 252, 255 (1985).

 

            In Bushey, the State did not introduce the test result, but the State introduced expert testimony about the amount of drinks the defendant would have had in order to achieve the test result.  The Supreme Court found that the procedure was acceptable, and that it avoided the specific prejudice identified in Dumont.  State v. Bushey, 149 Vt. at 381 (citing State v. McQuillen, 147 Vt. 386, 388 (1986), and State v. Dumont, 146 Vt. 252, 255 (1985)).

 

 

Chapter 31: DLS

 

31-051.  Driving with License Suspended or Revoked -- 23 V.S.A. § 674

 

            The statute, 23 V.S.A. § 674, does not require notice or knowledge of suspension on the part of the offender, and actual notice is not required.  State v. Hebert, 124 Vt. 377, 379 (1964).  The required notice may be satisfied by evidence that the written notice had been sent at least three days earlier, by registered mail or by certified mail.  The statute at 23 V.S.A. § 204 states that a suspension shall be deemed to be in effect three days after deposit in the United States mails, and a reasonable interpretation of that statute is that a notice will be effective three days after mailing.

 

            The Supreme Court approved an instruction on notice, similar to the model instruction, in State v. Cattanach, 129 Vt. 57 (1970).  Where the commissioner had mailed the notice more than  three days prior to the offense, “[t]he defendant’s failure to receive delivery of the notice of suspension is not sufficient to bar his conviction for operating a motor vehicle after the revocation went into full force and effect.”  Id. at 61.  A driver has a continuing duty to inform the commissioner of any change of address.  State v. Chicoine, 154 Vt. 653 (1990).

 

            Although § 204 suggests that notice of the suspension will be effective three days after mailing by first class mail, the above cases involved convictions based on certified mail.  It is not clear whether mailing by first class mail would sustain a conviction.

 

 

Chapter 32.  Negligent Operation

 

32-121.  Grossly Negligent Operation, with Transition to Negligent Operation

 

            The defendant has a right to choose between a “hard” or “soft” transition.  The hard transition requires a verdict on the highest offense before the jury considers any lesser included offenses.  The soft transition allows the jurors to consider the lesser offense if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.”  State v. Duff, 150 Vt. 329, 336-37 (1988).  The committee has generally used “soft” transitions, because most defendants prefer “soft” transitions over “hard.”  The following is an example of a “hard” transition, in case the defendant prefers that approach:

 

            You must first consider the charge of grossly negligent operation of a motor vehicle.  If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations.  If you decide that the State has not proven each and every one of the essential elements of grossly negligent operation of a motor vehicle, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of negligent operation of a motor vehicle.

 

 

Chapter 33:  Attempting to Elude

 

33-071.  Attempting to Elude a Police Officer

 

            This instruction omits any knowledge element, based on the Vermont Supreme Court’s decision in State v. Roy, 151 Vt. 17, 25-27 (1989).  The instruction has been modified from the earlier CR33-061, based on legislative changes that took effect in 2003.

 

33-081.  Attempting to Elude by Other Means

 

            Instruction CR33-081 attempts to give effect to the new subsection of the statute at 23 V.S.A. § 1133(e)(1).  Although this subsection seems to broaden the definition of “operator,” the apparent intent is to broaden the prohibited acts to include leaving the vehicle and running away in an attempt to elude the officer.

 

 

Chapter 34: Operating Without Owner’s Consent

 

34-031.  Operating Without Owner’s Consent -- 23 V.S.A. § 1094

 

            The Vermont Supreme Court has noted a requirement of general intent, i.e. that the defendant knew or should have known that he or she was operating the vehicle without the owner’s permission. In State v. Day, 150 Vt. 119 (1988), the trial court did not instruct the jury on any separate element of knowledge or intent, but the Supreme Court affirmed the conviction on the ground that the consent instruction sufficiently covered defendant’s lack-of-consent theory.  Id. at 123-24.

 

 

Chapter 35: LSA

 

35-051.  Leaving the Scene of an Accident -- 23 V.S.A. § 1128(a)

 

            The statute requires both knowledge of an accident and knowledge of resultant injury to either the person or property of another.  State v. Sidway, 139 Vt. 480 (1981).

 

 

Chapter 40:  Possession and Control of Regulated Drugs -- Title 18, Chapter 84

 

Units of Measurement

 

            The statutes within title 18, chapter 84, are inconsistent in that they do not all use the same system of measurement.  For example, under 18 V.S.A. § 4231(3) and (4), cocaine is measured in pounds and ounces, which are units of weight or force in the English system, whereas under 18 V.S.A. § 4231(2), the cocaine is measured in grams, which is a unit of mass in the metric system.  Sometimes it is necessary to ask the expert witnesses to convert their measurements into the appropriate units.  The committee suggests that the drug statutes should be amended to provide for consistent use of the metric system, which is preferred for scientific measurement and calculations.

 

“Dispensing”

 

            The word “dispense” is defined under 18 V.S.A. § 4201(7) to include “distribute, leave with, give away, dispose of, or deliver.”  It is the committee’s understanding that “dispensing” a regulated drug necessarily involves a transfer to another individual.  One who disposes of regulated drugs by flushing them down the toilet is not thereby guilty of dispensing.  While it may be a crime to possess the drug, it is not a crime to dispossess oneself of cocaine so long as the dispossession does not involve selling or dispensing.  State v. Harris, 152 Vt. 507, 509 (1989).

 

“Heroin”

 

            “Heroin” is defined by statute, 18 V.S.A. § 4201(36).  The State may have to present evidence that a substance has been designated as heroin by a rule adopted by the board of health, and the court may have to address the preliminary question of whether or not the rule has been adopted by following the Vermont Administrative Procedures Act.

 

40-411 to 40-471, Depressant, Stimulant, or Narcotic Drugs (18 V.S.A. § 4234)

 

            The statute prohibits possession, selling, or dispensing a depressant, stimulant or narcotic drug, other than heroin or cocaine.  There are lengthy statutory definitions for “depressant or stimulant drug” under 18 V.S.A. § 4201(6), and for “narcotic drug” under § 4201(16).  The model instructions provide a choice of how to instruct on whether the charged substance fits into the statutory definitions.  The State must prove to the jury that the defendant possessed the substance that is charged.  In some cases the court will decide whether the charged substance is one that is regulated by the statutes.  This determination is best done by stipulation.  If there is a real question about the issue, the model instructions allow for reading the statutory definition to the jury, and letting the jury decide whether or not the charged substances falls within the statute.

 

 

Chapter 50:  Illegal Taking of Game

 

50-023.  Taking.  10 V.S.A. § 4001(23)

 

            The statutory definition of “taking” lists various lesser acts prohibited by the statutes.  Thus a person may be charged with shooting at a wild animal whether or not the animal is killed.  A person may also be charged with “disturbing,” “harrying,” “worrying,” etc.

 

50-256. Shooting at Wild Animal From Within 10 ft. of a Public Highway - 10 V.S.A.  § 4705(c)

 

            This instruction derives from Judge Hudson’s instructions in State v. David Borry, No. 2-1-02 Wrfw (6/26/02).  Shooting at a wild animal falls within the definition of taking or attempting to take a wild animal, under the broad language of 10 V.S.A. § 4001(23).

 

Chapter 60: All Other Crimes

 

60-111.  Abuse of a Vulnerable Adult.  33 V.S.A. § 6913(a)

 

            The legislature amended this section generally in 2005.  Whereas the section once defined certain crimes, it now provides for administrative penalties.  Abuse of a vulnerable adult is now proscribed as a crime under 13 V.S.A. § 1376(a).  See CR28-911.