State v. Dow

• Decision Date: 19 August 2016
• Docket Number: Nos. 15-116 & 15-276,s. 15-116 & 15-276
• Citation: 152 A.3d 437
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Miles DOW

152 A.3d 437

STATE of Vermont

v.Miles DOW

Nos. 15-116 & 15-276

Supreme Court of Vermont.

August 19, 2016

William H. Sorrell, Attorney General, David Tartter, Assistant Attorney General, Montpelier, and Tracy Kelly Shriver, Windham County State's Attorney, Brattleboro, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for Defendant-Appellant.

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

DOOLEY, J.

¶ 1. Following an altercation with his wife and an ensuing conflict with police, defendant was charged with several counts, related to his conduct both towards his wife and to the responding police officers. During trial, based on improper questions from defense counsel, the court declared a mistrial on all counts involving defendant's wife (the complainant). The trial continued, and the jury found defendant guilty of aggravated assault on a law enforcement officer with a deadly weapon and attempted simple assault by menace on a law enforcement officer. Defendant appealed, arguing there was insufficient evidence, the jury instructions were faulty, and his convictions violated the Double Jeopardy Clause. Defendant also moved to dismiss the charges for which a mistrial was granted, arguing that the grounds for a mistrial were insufficient and jeopardy had attached. The court denied this motion, but granted defendant's request to bring an interlocutory appeal. We have consolidated defendant's direct and interlocutory appeals. Defendant's aggravated-assault conviction is affirmed, his simple assault conviction is vacated, and the court's denial of the motion to dismiss is reversed.

¶ 2. The following testimony was presented at trial. Defendant was angry because he found out that the complainant had posted a revealing photograph of herself on the internet. On March 29, 2014, they were arguing and defendant began yelling and knocking items off of shelves. The complainant was frightened and called 911. Two police officers came to the house, and the complainant let them into the kitchen. Defendant was in a bedroom down the hall. The officers called to defendant to come out and talk to them. Defendant responded no and started yelling at them to get out of the house. One officer testified that defendant's voice was "aggressive" and in response the officer removed his Taser. When the officers went down the hallway, defendant came out with a knife, running down the hallway. One officer described defendant's weapon as a machete and stated that defendant was coming down the hall in an angry and determined manner. The officer stated that defendant had the weapon in his hand half-raised and he was fearful and felt threatened.

¶ 3. One officer drew his firearm, and the two began to look for cover. They left the house, and defendant followed them out onto the deck. The officers instructed defendant to drop the knife, but defendant held onto it and went back into the house. The complainant was left in the house with defendant, but exited a few seconds later when defendant went to the bedroom. Defendant then appeared on the porch. He was angry and yelling for police to shoot him. Defendant went back inside and then appeared again with pills and a glass of water. He took a large number of white pills. Defendant eventually agreed to come out of the house based on a promise that he could see the complainant. Police entered the house, and defendant was taken away by an ambulance.

¶ 4. Following this incident, defendant was charged with seven criminal counts.¹ Five of the charges involved defendant's actions towards the complainant: second-degree aggravated domestic assault, reckless endangerment, interference with access to emergency services, second-degree unlawful restraint² , and attempted simple assault by menace. Two charges related to defendant's actions towards law enforcement: aggravated assault with a deadly weapon on a police officer and attempted simple assault on a police officer by menace.

¶ 5. During trial the court granted the State's request for a mistrial based on defense counsel's questioning of the complainant during cross-examination. The court concluded that the questions were not relevant to any issue and were prejudicial to the State's case. The court determined that the impact on the jury could not be ascertained and granted a mistrial on the charges that involved the credibility of the complainant. The trial proceeded on the remaining two counts, and the jury returned a guilty verdict on those counts. Following trial, defendant filed a motion seeking to bar retrial of the mistried counts, arguing that jeopardy had attached. The court denied the motion, but granted defendant's request to bring an interlocutory appeal.

¶ 6. Defendant now appeals both his convictions and the denial of his motion to dismiss. As to the convictions, he contends (1) there was insufficient evidence to support the convictions; (2) the court erred in instructing the jury; (3) the court erred in admitting evidence of defendant's prior bad acts; and (4) the two convictions are for the same conduct and violate double jeopardy. In his interlocutory appeal, defendant argues that the court erred in granting a partial mistrial, as well as that double jeopardy precludes retrial of the remaining counts.

I. Acquittal

¶ 7. Defendant first argues that the State did not present sufficient evidence to demonstrate the specific-intent element required to prove aggravated assault with a deadly weapon and attempted simple assault. This Court reviews the denial of a motion for acquittal de novo. State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. In reviewing whether a motion for acquittal was properly granted, this Court considers "whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (mem.) (quotation omitted). A motion for judgment of acquittal will be granted "only if the State has failed to put forth any evidence to substantiate a jury verdict." Id.

¶ 8. Defendant's arguments focus on the specific intent required for the aggravated-assault and attempted-simple-assault charges. Defendant was charged with aggravated assault, which the statute defines as when a person "is armed with a deadly weapon and threatens to use the deadly weapon on another person." 13 V.S.A. § 1024(a)(5). This is a specific-intent crime, and the State must prove that "defendant subjectively intended to threaten the individual with the deadly weapon." State v. Cahill, 2013 VT 69, ¶ 10, 194 Vt. 335, 80 A.3d 52 ; see State v. Bourn, 2012 VT 71, ¶ 11, 192 Vt. 270, 58 A.3d 236 (explaining that aggravated assault is specific-intent crime). Similarly, to prove the intent element of attempted simple assault, 13 V.S.A. § 1028, the State was required to prove defendant intended to commit the assault. See State v. Devoid, 2010 VT 86, ¶ 10, 188 Vt. 445, 8 A.3d 1076 (explaining that attempt requires intent to commit crime and overt act to carry out intent). "Intent is rarely proved by direct evidence; it must be inferred from a person's acts and proved by circumstantial evidence." State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988).

¶ 9. Defendant moved for a judgment of acquittal at the end of the State's case and renewed his request in a post-judgment motion. The court denied the motions, concluding that the facts were sufficient for the jury to infer defendant's intent.

¶ 10. On appeal, defendant asserts that his intent was to harm only himself and points to several facts in support. While some facts could support a finding that defendant harbored an intent to harm himself at certain times during the incident, this does not preclude a finding by the jury, based on other evidence, that defendant also intended to threaten the officers at the same or at different times during the incident. Here, the facts when viewed in the light most favorable to the State are as follows. After the police officers arrived at defendant's house, defendant was in a bedroom and yelling at the officers to leave. Defendant then came running down the hallway towards the officers in a determined manner. He was carrying a knife, described by one officer as a machete, and the knife was in a half-raised position. Defendant was angry, aggressive, and yelling. One officer was fearful and felt threatened. This circumstantial evidence, particularly the fact that defendant was angrily running down the hall towards the officers carrying a knife, was sufficient for the jury to conclude beyond a reasonable doubt that defendant acted with the specific intent to threaten the officers. See Cahill, 2013 VT 69, ¶ 12, 194 Vt. 335, 80 A.3d 52 (explaining that communication of intent through actions and surrounding circumstances sufficient to support verdict).

II. Jury Instructions

¶ 11. Next, defendant argues that the court erred in instructing the jury on the intent element of the charges. The court generally instructed the jury that the State must prove defendant's mental state beyond a reasonable doubt, and that this intent could be proven by "circumstantial evidence." The court explained:

It is not the secret intent of the defendant but that intent which can be determined from his conduct and all the other circumstances which surround it; that is, you may consider all the surrounding facts and circumstances including the defendant's words and actions, any relevant history in evidence and determine his mental state by inference from those surrounding facts and circumstances.

¶ 12. On appeal, defendant argues that the court erred by instructing the jury not to consider defendant's "secret intent" because in doing so the court failed to make it clear that the crimes alleged required the State to prove defendant's...