State v. Swift

• Decision Date: 27 February 2004
• Docket Number: No. 02-414.,02-414.
• Citation: 844 A.2d 802
• Parties: STATE of Vermont v. Kent SWIFT.
• Court: Vermont Supreme Court

844 A.2d 802

STATE of Vermont v. Kent SWIFT.

No. 02-414.

Supreme Court of Vermont.

February 27, 2004.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Allison Fulcher of Martin and Associates, Barre, and Kent Swift, Pro Se, Jarratt, VA, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. JOHNSON, J.

Defendant appeals his conviction for one count of second-degree aggravated domestic assault in violation of 13 V.S.A. § 1044, and two counts of obstruction of justice for threatening a witness in violation of 13 V.S.A. § 3015. Defendant claims that the trial court erred by refusing to instruct the jury on simple assault, which is a lesser-included offense of second-degree aggravated domestic assault. Alternatively, defendant asserts that the jury instruction impermissibly limited the jury's ability to doubt the complaining witness's credibility, and thereby violated his constitutional right of confrontation. We affirm the trial court's decision not to instruct the jury on simple assault. We reverse and remand for a new trial because the court's instruction prejudicially impinged upon the jury's duty to weigh the evidence.

¶ 2. On July 26, 2000, defendant assaulted Cindy Lawrence, his then girlfriend. The following day, defendant was arraigned on domestic assault charges. At arraignment, the court imposed conditions of release that, among other things, prohibited defendant from contacting or harassing complainant Cindy Lawrence, and from being within 1000 feet of her, her home, or her place of employment. Despite those conditions, defendant went to complainant's home on August 10, 2000 where he allegedly threatened her. On August 24, 2000 defendant allegedly threatened plaintiff again, and punched her in the head. Defendant was subsequently arraigned and tried on one count of second-degree aggravated domestic assault and two counts of obstructing justice in the matter of his earlier assault on complainant.

¶ 3. At trial, complainant testified that she "dated the defendant" and lived together with him in a Barre apartment from January 2000 to July 2000. When asked on direct if she had a sexual relationship with defendant, she responded affirmatively. She was not cross-examined on any of this testimony. Defendant did not introduce any evidence on the issue.

¶ 4. After the close of the State's case, defendant moved for judgment of acquittal. The motion challenged the sufficiency of the State's evidence that complainant was a "household member" of defendant for purposes of the domestic assault statute, 13 V.S.A. § 1044(a)(1). In the context of the motion, defendant conceded that the evidence showed that he had a sexual relationship with complainant and that he had lived with her for approximately six months in 2000. Defendant argued that complainant's admittedly uncontroverted assertion that she had a sexual relationship with defendant and had lived with him for six months—without more—was insufficient to meet the State's burden of proof on the "household member" issue. The judge denied the motion, specifically stating that he believed the State had enough evidence on the issue.

¶ 5. The following day, defendant objected to the judge's decision not to give the jury an instruction on simple assault, a lesser-included offense of domestic assault. Defendant argued that the jury should have had the option to convict on the simple assault offense in the event that it decided that the State had not established the "household member" element of domestic assault beyond a reasonable doubt. The judge found this argument unpersuasive, and stated that "the evidence about domestic partner [household member] just seems totally uncontested and uncontroverted."

¶ 6. On appeal, defendant renews his argument that the judge should have instructed the jury on simple assault as well as domestic assault. The State correctly concedes that the elements of simple assault are incorporated within the elements of second-degree aggravated domestic assault, and thus simple assault is a lesser-included offense. Nonetheless, the State maintains that defendant failed to present evidence or contradict the State's evidence on the "household member" element that distinguishes the two offenses, and thus defendant was not entitled to a simple assault instruction. The record provides ample support for the State's position.

¶ 7. As a general rule, a defendant is entitled to an instruction on a lesser offense than the offense charged if the elements of the lesser offense are necessarily included in the greater offense, and if the facts in evidence reasonably support such an instruction. State v. Delisle, 162 Vt. 293, 301, 648 A.2d 632, 637 (1994); State v. Bolio, 159 Vt. 250, 252, 617 A.2d 885, 886 (1992). The purpose of the rule is to "allow the jury to consider the evidence in the light of all of the alternative verdicts fairly presented, and not to have to elect between only a guilty verdict and an acquittal, where the evidence is susceptible of sustaining a lesser-included offense." Bolio, 159 Vt. at 254, 617 A.2d at 887. A defendant may be denied an instruction on the lesser-included offense when the evidence does not support the instruction. State v. Alexander, 173 Vt. 376, 383, 795 A.2d 1248, 1254 (2002); see also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (evidence must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater).

¶ 8. For purposes of this appeal, the key distinction between the charged offense— second-degree aggravated assault—and the lesser offense—simple assault—is the identity of the victim. A simple assault becomes a domestic assault when it is perpetrated against a "family member," or, as is alleged here, a "household member." Compare 13 V.S.A. § 1044(a) (second-degree aggravated domestic assault incorporates the "household member" element from 13 V.S.A. § 1042) with 13 V.S.A. § 1023(a) (simple assault lacks the "household member" element). The definition of "household member," as used in the domestic assault statutes, is supplied by 15 V.S.A. § 1101(2): "`Household members' means persons who, for any period of time, are living or have lived together, are sharing or have shared occupancy of a dwelling, are engaged in or have engaged in a sexual relationship ...." (emphasis added); 13 V.S.A. § 1041 (incorporating the foregoing definition into the domestic assault statutes by reference).

¶ 9. No rational jury could have concluded that defendant and complainant were not "household members" for the purposes of the domestic assault statute. Defendant assaulted complainant on August 24, 2000. It appears from the evidence that this was only a short time after the complainant had moved out of the Barre apartment she shared with defendant for the six months prior to the assault. Under the statute, two persons are "household members" if they either lived together or had a sexual relationship at any time prior to the assault. The evidence shows complainant and defendant satisfied both of these alternative requirements. In light of the statute's broad temporal scope and defendant's concession that complainant's testimony about their relationship was accurate, the question of whether defendant and complainant were household members was not something that a rational jury could reasonably doubt. Accordingly, defendant was not entitled to an instruction on the lesser-included offense. Therefore, we affirm the trial court's ruling on this issue. ¶ 10. We now turn to the question of the challenged jury instruction that concerns "evidence of tolerance of abuse." Though the State had not requested it, the judge offered the following instruction as a rule for weighing evidence:

The law does not recognize evidence that a person remains in an abusive relationship as consent to abuse. Nor does the law recognize such conduct as evidence, by itself, to question the credibility of a complaining witness. To the contrary, the law recognizes that the more vulnerable partner in an abusive relationship will often remain in or return to this relationship for a number of fearful reasons. The jury may find other reasons from the evidence to question the credibility of a witness regarding the issues; but the law does not recognize this fact of remaining in or returning to an apparently abusive relationship as evidence to question the witness' credibility. (emphasis added).

¶ 11. The trial court denied repeated objections to this instruction before the jury retired. The State claims that defendant's objection lacked the specificity required to preserve this issue for appeal. This argument is unpersuasive. Defendant's objection referred to the precise sentences that were objectionable, and further stated that the issue of credibility goes to the heart of defendant's case. Defense counsel clearly communicated his fear that the jury charge would give the impression that both the cross-examination on this topic, and reference to it in closing argument, were in some way improper and should be disregarded by the jury. This trial objection closely parallels the substance of defendant's claim on appeal and therefore meets the specificity standards we have established in previous cases. See, e.g., State v. Covino, 163 Vt. 378, 380-81, 658 A.2d 916, 917-18 (1994) (explaining that purpose of the rule is to apprise the trial court of what defendant intends to preserve for appeal, and permit the trial court to correct the error in the first instance).

¶ 12. The instruction in this case, while well intentioned, was not supported by the evidence or the law. A defendant is entitled to jury instructions that are "full, fair, and correct on all issues, theories, and claims" presented by the evidence. State v. Day, ...