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
The instructions are intended as
models that may be used in
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
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
General Notes Concerning Legal Sufficiency of Jury Instructions:
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
(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
(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,
(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
Notes Regarding Chapters and Sections:
Chapter 1: Introductory General Instructions
01-011. Questions to ask Jurors at Start of Trial, or During Trial
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
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.
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
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.
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
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
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.”
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.
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
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.
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
04-101. Burden of Proof -- Beyond a Reasonable Doubt
criminal case, the state must prove each of the essential elements of the
offense beyond a reasonable doubt. State
v. Derouchie, 140
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.”
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.
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
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.
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.
05-081. Hearsay of Child (V.R.E. 804a)
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.
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
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
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
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.
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.
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.
Court has clarified that acting “intentionally” means to act “purposely” or
with a specific “conscious object.” State
v. Jackowski, 2006 VT 119, 181
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.
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
“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
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
“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
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
06-161. Criminal Negligence
discussions of criminal negligence, see State v. Free, 170 Vt. 605
(2000); State v. Beayon, 158
Notes Concerning General Intent:
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.”
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
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
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
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.
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.”
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,
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.
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
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
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
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
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
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).
elements of the defense derive from LaFave & Scott, Handbook on Criminal
Law § 50 (1972) (cited in State v. Warshow, 138
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
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
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
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,
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
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
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
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.
The instruction recognizes that an
attempt requires an act coupled with a specific intent. Some of the language derives from State v.
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
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
Accomplice liability may be shown by
encouragement by someone who was present at the scene.
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
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
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
The definition of “structure” derives from the statutes on municipal and regional planning and development, 24 V.S.A. § 4303(11).
“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
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
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
Chapter 21: Assault and Robbery (Title 13, chapter 13)
21-011, et seq. Assault and Robbery
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 (
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).
definition of “recklessly” derives from State v. Hoadley, 147
“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
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
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
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,
22-046. Simple Assault by Mutual Consent
13 V.S.A. § 1023(b); State v. Sturgeon, 140
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
22-121, 22-126. Reckless Endangerment
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.
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
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
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
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
22-151. Disorderly Conduct (violent, tumultuous or threatening behavior)
“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
22-161. Disorderly Conduct (abusive or obscene language)
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.
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
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.
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
22-301. Violation of Abuse Prevention Order
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
the Supreme Court expressed approval of the instruction the trial court had
given on the mens rea.
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.
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
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
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
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.
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
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 (
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.
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.
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.
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
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
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
There are few
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 (
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
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 (
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
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
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.”
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).
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
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
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.
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
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
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.”
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
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
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
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.
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
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
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.”
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
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
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
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.
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)
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
Chapter 28: Other Crimes Under Title 13
28-041. Endeavoring to Incite a Felony, 13 V.S.A. § 7
to incite a felony differs from an attempt.
State v. Hudon, 103
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
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
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
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.
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.
28-104. Cruelty to a Child
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
28-161. Cruelty to Animals
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
28-166. Cruelty to Animals – Jury Interrogatories
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.
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.
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,
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
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
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
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
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
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
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
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
may testify about his or her observations supporting a conclusion that the
defendant was under the influence. State
v. Baldwin, 140
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.
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
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
“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
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
30-171. DUI: Second Offense under § 1201(a)(2), Phase II Proceeding
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.
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
30-221. DUI: Evidence of Alcohol in the Blood
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.
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
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
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.”
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
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,
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
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.
Chapter 35: LSA
35-051. Leaving the Scene of an Accident -- 23 V.S.A. § 1128(a)
requires both knowledge of an accident and knowledge of resultant injury to
either the person or property of another.
State v. Sidway, 139
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.
“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
“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.