State v. Levitt, 15–164.

• Citation: 148 A.3d 204,2016 VT 60
• Decision Date: 27 May 2016
• Docket Number: No. 15–164.,15–164.
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Willy LEVITT.

148 A.3d 204

2016 VT 60

STATE of Vermont

v.Willy LEVITT.

No. 15–164.

Supreme Court of Vermont.

May 27, 2016.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

DOOLEY, J.

¶ 1. Defendant was convicted of simple assault in a jury trial in December 2014 and placed on probation. He requests that this Court reverse his conviction and remand for a new trial because the trial court improperly defined reasonable doubt for the jury, thus lowering the standard of proof. In the alternative, he raises three arguments regarding his probation conditions: (1) that they were unlawfully imposed on the grounds that the sentencing court mistakenly believed they were “standard”; (2) that the court failed to inform defendant of the content of the conditions at sentencing; and (3) that the imposed individual conditions were overbroad and vague, impermissibly delegated court authority to his probation officer, were unrelated to his offense, rehabilitation, or public safety, and were not supported by factual findings. We affirm defendant's conviction and conditions H, J, and L, but remand on condition I and strike all the other complained-of conditions.

¶ 2. Defendant was tried for simple assault in a jury trial on December 15, 2014, stemming from an incident at a protest at Vermont Gas headquarters in May 2014. In charging the jury, the trial judge informed the jurors that the State was obligated to prove defendant's guilt beyond a reasonable doubt, stating that:

Few things in life are absolutely certain. To say that you believe something beyond a reasonable doubt is to say that you are convinced of it with great certainty. But proof beyond a reasonable doubt does not require you to be absolutely or 100 percent certain. A reasonable doubt may arise from the evidence or from the lack of evidence.

Defendant did not object to this instruction.

¶ 3. The jury returned a guilty verdict. Defendant was sentenced in a hearing on March 13, 2015. The State argued for fourteen days of incarceration, while the defense requested a fine or suspended sentence. No evidence was presented, and no mention of probation was made. Ultimately, the court imposed a sentence of three to six months, suspended but for twenty days of work crew, and a $300 fine and a surcharge. The court also placed defendant on probation, imposing—without naming or describing—“standard conditions A through N, and also condition P,” which are as follows:

A. You shall notify your probation officer within 48 hours if you are arrested or given a citation for a new offense.

B. You must not be convicted of another crime.

C. You must regularly work at a job or look for work, if your probation officer tells you to do so. You must get job training if your probation officer tells you to do.

D. You must regularly work at a community service job if the court orders you to do so.

E. You must support your dependents and meet other family responsibilities.

F. You must meet with your probation officer or designee whenever he/she tells you to do so.

G. If you change your address or move, you must tell your probation officer within two days.

H. If you change or lose your job, you must tell your probation officer within two days.

I. You cannot leave the State without written permission from your probation officer.

J. Upon request, and without delay, you must allow the probation officer to visit you wherever you are staying.

K. If the probation officer or the court orders you to go to any counseling or training program, you must do so. You must participate to the satisfaction of your probation officer.

L. You must not buy, have or use any regulated drugs unless they are prescribed by a doctor.

M. Your probation officer or any other person authorized by your probation officer can require you to have random urinalysis testing.

N. Violent or threatening behavior is not allowed at any time.

P. You shall not drink alcoholic beverages to the extent they interfere with your employment or the welfare of your family, yourself, or any other person. You must submit to any alcosensor test or any other alcohol test when your probation officer or their designee tells you to do so.

Defendant did not raise any objections to these conditions at sentencing. The probation order also included condition 31, which stated “Standard conditions A–N and P apply[;] Condition N is amended to include verbal, written, or electronic threats of personal injury or property damage are not permitted.” The court also added conditions preventing defendant from having contact with a VT Gas Systems communications coordinator—the complainant in the criminal case—and from going on VT Gas Systems' property. This timely appeal followed.

¶ 4. On appeal, defendant makes four primary arguments: (1) the trial court committed structural error by defining “reasonable doubt” for the jury as it did and, as a result, diminished the constitutional burden of proof; (2) the conditions the trial court imposed because they are “standard” were erroneously imposed because they are not standard, but discretionary; (3) because the trial court announced it was imposing standard conditions without informing defendant as to the content of those conditions, defendant was deprived of his right to be present at his sentencing; and (4) probation conditions C, D, E, H, I, J, K, L, M, and P are overbroad and vague, impermissibly delegated the court's authority to sentence to the probation officer, are unrelated to the conduct for which defendant was convicted, are not related to the legitimate goals of sentencing, and are not supported by factual findings. In response to the defendant's challenges to specific conditions, the State concedes that conditions C, D, E, K, M, and P may be struck, leaving in issue conditions H, I, J, and L. We affirm defendant's conviction and conditions H, J, and L, but remand condition I, strike those conditions the State has agreed to eliminate, and order condition 31^* to be amended accordingly.

¶ 5. First, we consider defendant's argument that in endeavoring to define the phrase “beyond a reasonable doubt” for the jury as meaning convinced “with great certainty” the trial court diminished the State's burden of proof under In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which observes that the “government cannot adjudge [a defendant] guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.” This language in Winship was part of the explanation of why due process requires a beyond-a-reasonable-doubt standard of proof in juvenile delinquency cases; it did not require that the term “utmost certainty” be part of jury instructions. Defendant argues, however, that it applies to jury instructions and by using the words “great certainty” rather than “utmost certainty” the court committed structural error, mandating automatic reversal of his conviction. We disagree and affirm defendant's conviction.

¶ 6. In order to preserve an objection to jury instructions, a criminal defendant must object “before the jury retires to consider its verdict, stating distinctly the matter to which objection is made and the ground of the objection.” V.R.Cr.P. 30 ; see State v. Hinchliffe, 2009 VT 111, ¶ 33, 186 Vt. 487, 987 A.2d 988 (noting purpose of Rule 30 is “to give the trial court one last opportunity to avoid an error” (quotation omitted)); State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992) (noting that “failure to object to an instruction after it is given to the jury is considered a waiver of any error even if the substance of the objection is made known before the jury charge.”). Where a defendant fails “to comply with Rule 30, we review only for plain error.” State v. Vuley, 2013 VT 9, ¶ 40, 193 Vt. 622, 70 A.3d 940. In reviewing a jury instruction for plain error, we determine whether the alleged error “would result in a miscarriage of justice,” considering whether there was an error, whether the error was obvious, whether the error affected substantial rights and resulted in prejudice to defendant, and whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285. In determining whether there was a miscarriage of justice, we look at “the record evidence as a whole.” Id.

¶ 7. Here, it is undisputed that defendant failed to object to the reasonable doubt instruction after it was read to the jury, so we review the instruction for plain error.

¶ 8. The U.S. Constitution “neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). As long as the trial court “instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, ... the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof.” Id. (citation omitted). Instead, the reviewing court must determine whether, “taken as a whole, the instructions ... correctly convey the concept of reasonable doubt to the jury.” Id. (some alterations and quotation omitted); accord Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.

¶ 9. We have not yet considered the relationship of the Winship language to our criminal jury instructions in a precedential opinion. See State v. Brandt, No. 2011–109, 2012 WL 5974987, at *2 (Vt. Sept. 26, 2012) (unpub. mem.), https://www.vermontjudiciary.org/UPEO2011Present/eo11-109.pdf (considering identical jury instructions and finding no error because “reference to ‘great certainty’ did not diminish [the reasonable doubt]...