State v. Kuzawski

• Decision Date: 15 December 2017
• Docket Number: No. 2016-244,2016-244
• Citation: 2017 VT 118
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Justin R. Kuzawski

2017 VT 118

State of Vermont
v.
Justin R. Kuzawski

No. 2016-244

Supreme Court of Vermont

September Term, 2017
December 15, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Bennington Unit, Criminal Division

David A. Howard, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Emily Tredeau and Joshua S. O'Hara, Appellate Defenders, Montpelier, for Defendant-Appellant.

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

¶ 1. CARROLL, J. Defendant Justin Kuzawski appeals his conviction for aggravated domestic assault with a deadly weapon. He argues that there was insufficient evidence to find that he used a deadly weapon or to show that he intended to threaten the victim of his actions. We affirm.

¶ 2. In 2015, defendant was living with his girlfriend. His girlfriend had a six-year-old daughter, E.P., from a prior relationship. E.P. lived primarily with her father, but spent one night a week at the home shared by her mother and defendant. On one of those evenings, defendant was cutting boxes with a box cutter. The box cutter defendant was using was not a typical box cutter; unlike most box cutters, the sharp blade at the cutting end of the tool was covered with a sheath of hard plastic. The blade was exposed on the sides of the tool, though this cutting edge was less than half an inch long and the plastic guard on the top extended down the sides and past the cutting

Page 2

edge by approximately a centimeter. Because of the guard, the tool had a much smaller cutting edge than a typical box cutter. While defendant was using this tool to work with boxes, six-year-old E.P. approached him and asked what he was doing. Defendant initially told her "[n]othing, none of your business." E.P. persisted, and defendant then held the box cutter he was using next to E.P.'s stomach and told her that he would kill her in her sleep. He then laughed, and E.P. ran away.

¶ 3. The next day, E.P. told her father's sister about this incident. She said that she had not slept well the night before and that when she woke up she checked to make sure that another child also spending the night at the house was still alive, since E.P. herself was still alive. E.P.'s aunt contacted both E.P.'s father and the police.

¶ 4. After the police questioned defendant, the State charged him with two counts of first degree aggravated domestic assault pursuant to 13 V.S.A. § 1043(a)(2) and § 1043(a)(3). The first of these charges alleged that defendant "was armed with a deadly weapon and threatened to use the deadly weapon on a family or household member." See id. § 1043(a)(2) ("A person commits the crime of first degree aggravated domestic assault if the person . . . is armed with a deadly weapon and threatens to use the deadly weapon on a family or household member . . . ."). The second charge alleged that defendant "wilfully caused a family or household member to fear imminent serious bodily injury and has previously been convicted of aggravated domestic assault." See id. § 1043(a)(3) ("A person commits the crime of first degree aggravated domestic assault if the person . . . commits the crime of domestic assault and has been previously convicted of aggravated domestic assault."); see also id. § 1042 (providing that domestic assault occurs when person "wilfully causes a family or household member to fear imminent serious bodily injury"). The State also charged defendant with one count of cruelty to a child, alleging that he had "wilfully assaulted, ill treated, neglected or abandoned or exposed the child, or caused or procured the child to be assaulted, ill treated, neglected, abandoned or exposed, in a manner to cause the child unnecessary suffering, or to endanger the child's health." Id. § 1304.

Page 3

¶ 5. Following a bench trial, but before returning a verdict, the trial court noted that the State should have elected one of the two offenses charged under 13 V.S.A. § 1043. The State deferred to the court, which dismissed the charge under § 1043(a)(3). The court then found defendant guilty of first degree aggravated domestic assault pursuant to § 1043(a)(2) and not guilty of cruelty to a child pursuant to 13 V.S.A. § 1304. This appeal followed.

¶ 6. Defendant raises two arguments related to the sufficiency of the State's evidence. First, he argues that the State did not present evidence to support the court's conclusion that the box cutter used in the incident described above was a deadly weapon. And second, he argues that the State did not present evidence to support the court's conclusion that he had the specific intent to threaten that is necessary for a conviction of first degree aggravated domestic assault. We address each of these arguments in turn.

¶ 7. When we consider a challenge to the sufficiency of the evidence, we "must determine if the evidence, viewed in the light most favorable to the State and excluding modifying evidence, fairly and reasonably supports a finding beyond a reasonable doubt." State v. Vargas, 2009 VT 31, ¶ 18, 185 Vt. 629, 971 A.2d 665 (mem.) (quotation omitted). We review the trial court's determinations on matters of law de novo, including the court's interpretation of a statute. State v. Amsden, 2013 VT 51, ¶ 8, 194 Vt. 128, 75 A.3d 612. We review the court's findings of fact "under a clear-error standard." Id.

¶ 8. A deadly weapon is "any firearm, or other weapon, device, instrument, material, or substance, whether animate or inanimate which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury." 13 V.S.A. § 1021(a)(3). Serious bodily injury is injury that creates "a substantial risk of death; . . . a substantial loss or impairment of the function of any bodily member or organ; . . . a substantial impairment of health; or . . . substantial disfigurement." Id. § 1021(a)(2)(A). Defendant argues that this statutory definition lists two discrete categories of deadly weapon: (1) .items specifically designed to injure, or per se deadly weapons—those objects that are designed to be used to produce death or serious

Page 4

bodily injury, such as a loaded firearm; and (2) objects that can be called deadly weapons only if the actor actually uses them in a manner that can produce death or serious bodily injury—such as a pillow used to suffocate a victim. Defendant argues that the box cutter he held to E.P.'s stomach falls into neither of these categories. It is not an item intended to be used to injure because it is designed to cut boxes, and thus it is not a per se deadly weapon. Nor is it an item that, in this case, was actually used in a manner that could produce death or serious bodily injury because defendant held it to E.P.'s stomach, but he did not physically harm her.

¶ 9. This reading of the statute is borne out in neither the statute's plain language nor our caselaw. When this Court considers the meaning of a statute, we begin with its plain language. State v. Kimmick, 2007 VT 45, ¶ 12, 181 Vt. 635, 928 A.2d 489 (mem.). If the language of the statute is clear, "we are bound to follow it." Id. (quotation omitted). Here, the statute provides that an object can be labelled a deadly weapon if that object "in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury." 13 V.S.A. § 1021(a)(3). Defendant's reading of § 1021(a)(3) seems to suggest that the phrase "is used or is intended to be used" modifies the list of objects included at the beginning of the provision. Thus, according to defendant's interpretation, an object is a per se deadly weapon when that object is designed or "intended to be used" to cause death or serious bodily injury. Following this reasoning, because a loaded firearm has no purpose other than to cause death or serious bodily injury, it is a per se deadly weapon and as a matter of law would satisfy the statutory definition. An object may be found to be a deadly weapon, even if it is not a per se deadly weapon "intended to be used" to cause death or serious bodily injury, if it "is used" to cause death or bodily injury. Thus, a box cutter, not specifically designed to injure but used to cut deeply enough to cause death or serious bodily injury, would be a deadly weapon because of the way it "is used," while a box cutter held to a stomach but not used to cut cannot be found a deadly weapon because its "use" causes no bodily injury.

Page 5

¶ 10. We read the phrase "is used or is intended to be used" to modify the word "manner." That is, "any firearm, or other weapon, device, instrument, material or substance, whether animate or inanimate" falls within the statutory definition of "deadly weapon" when, during the incident giving rise to a charged offense, the object "is used or is intended to be used" in a "manner" to cause either death or serious bodily injury. See also Benson v. Muscari, 172 Vt. 1, 9, 769 A.2d 1291, 1298 (2001) (noting deadly weapons definitions are "unhelpful to defining a [probationer's deadly weapons] possession prohibition . . . because they depend upon the use or intended use of the weapon, which cannot be determined from possession alone" (emphasis added)). Whether an object is a deadly weapon is tied to the way that an object is used or is intended to be used in the commission of a crime—whether the object is a loaded firearm or a pillow. Whether an object is a deadly weapon is not tied to the object's intrinsic use or purpose—as an object intended to be used to injure or an...