State v. Turner, 01-428.

• Decision Date: 17 July 2003
• Docket Number: No. 01-428.,01-428.
• Citation: 830 A.2d 122
• Parties: STATE of Vermont v. Clayton TURNER.
• Court: Vermont Supreme Court

830 A.2d 122

STATE of Vermont v. Clayton TURNER.

No. 01-428.

Supreme Court of Vermont.

July 17, 2003.

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

ENTRY ORDER

¶ 1. Defendant Clayton Turner was convicted of aggravated assault following a jury trial in Windham District Court. Defendant appeals the court's denial of his motion for judgment of acquittal and motion for a new trial. Defendant claims that the trial court erred in denying his motions because (1) the State presented insufficient evidence that the knife used in the incident was a "deadly weapon"; (2) the trial court committed prejudicial error by allowing a witness to testify that he was threatened by defendant's brother following a juror's request for clarification of the witness's testimony; and (3) the trial court failed to give the jury a proper limiting instruction regarding that witness's testimony. We disagree and affirm. ¶ 2. This appeal arises out of a dispute over a video game. The record demonstrates that on July 2, 2000, defendant stabbed 14 year-old Kyle Wright in the leg with a knife after an unsuccessful attempt to borrow a video game. Defendant was charged with aggravated assault with a deadly weapon under 13 V.S.A § 1024(a)(2). Following a two-day jury trial, defendant was convicted and subsequently sentenced to three to twelve years imprisonment.

¶ 3. During the course of the trial, several witnesses testified as to the facts of the incident, including Jason Bushey, who was present during the stabbing. Prior to trial, Bushey stated to defendant's investigator that he did not witness the stabbing and signed a written statement to that effect. Bushey also told the police that he did not know defendant or the victim. At trial, Bushey testified that he saw defendant "get mad" and purposely stab Kyle Wright in the leg with a three inch long knife. On direct examination, the State asked Bushey to explain his prior statements. Bushey admitted he had lied previously because he did not "want any bodily harm to be caused to [him] for snitching on somebody," and that he had decided to testify truthfully because "it's not right that Clayton stabbed a 14-year-old kid over a video game." Defense counsel did not object to this testimony.

¶ 4. Following Bushey's testimony, the court asked whether the jurors had questions for the witness.¹ A juror requested clarification of Bushey's testimony regarding his fear of harm for "snitching." Defense counsel objected to the juror's question, arguing that the potential testimony would be more prejudicial than probative. The court overruled this objection, adjourned the jury upon the State's suggestion, and asked Bushey to clarify his previous testimony. Bushey explained to the court that he was afraid of Kenneth Turner, defendant's brother. Defense counsel renewed their objection to this testimony. Upon further inquiry, Bushey claimed that Kenneth Turner threatened to "put [Bushey] in the hospital" if Bushey "snitched" on his brother. Bushey also stated that Kenneth Turner did not in any way indicate that defendant had prompted the threat. Again, defense counsel objected to this testimony, which the court overruled, holding that the testimony was clearly probative. Bushey then testified about Kenneth Turner's threats before the jury, explaining that these threats prompted his prior inconsistent statements.

¶ 5. At the close of the State's case, defendant moved for judgment of acquittal pursuant to V.R.Cr.P. 29(c), arguing that the State did not meet its burden in proving that defendant caused injury to Wright, and that the evidence was not sufficient to prove that defendant used a "deadly weapon." The court denied these motions and charged the jury. No objections were made to the jury instructions. Defendant was convicted of aggravated assault. Defendant moved for judgment of acquittal or a new trial notwithstanding the jury verdict in a post-verdict filing. The court denied these motions. This appeal followed.

¶ 6. On appeal, defendant raises three claims. First, defendant claims that the State presented insufficient evidence that the knife used in the stabbing was a "deadly weapon" as defined by 13 V.S.A. § 1021(3), and that he is therefore entitled to a judgment of acquittal. Second, defendant argues that the trial court committed prejudicial error by allowing Bushey to explain that threats made by defendant's brother caused him to deny knowledge of the stabbing prior to trial. Third, defendant claims the court's admission of Bushey's testimony and subsequent failure to give the jury a limiting instruction regarding the usage of that testimony warrants a new trial. Defendant is incorrect.

¶ 7. Defendant first claims that he is entitled to a judgment of acquittal because the State failed to meet its burden in proving that the knife used in the stabbing was a "deadly weapon." The standard of review for the denial of a V.R.Cr.P. 29 motion for judgment of acquittal is 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. Delisle, 162 Vt. 293, 307, 648 A.2d 632, 641 (1994) (internal quotations omitted). A judgment of acquittal is proper only if the State has failed to put forth any evidence to substantiate a jury verdict. State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999).

¶ 8. We reject defendant's assertion that the evidence was insufficient to find that the knife used by defendant was a "deadly weapon." Defendant was charged with aggravated assault under 13 V.S.A. § 1024(a)(2). A person is guilty of aggravated assault with a deadly weapon if the defendant "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." 13 V.S.A. § 1024(a)(2). A "deadly weapon" is defined as "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." Id. § 1021(3).

¶ 9. Defendant asserts that the knife with which he stabbed Wright was not used or intended to be used in a manner "known to be capable of producing death or serious bodily injury," and that the injury inflicted upon the victim was not "serious bodily injury." Therefore, according to defendant, the knife should not be considered deadly. We disagree. For a weapon to be considered "deadly" under 13 V.S.A. § 1024(a)(2), that weapon need not inflict serious bodily injury. See State v. Prior, 174 Vt. ___, ___, 804 A.2d 770, 773 (2002) (a folding knife held to victim's throat, without inflicting any injury, constituted a "deadly weapon"); State v. Parker, 139 Vt. 179, 183, 423 A.2d 851, 853 (1980) (a gun, whether loaded or unloaded, is a dangerous weapon when used in the commission of a robbery because it could be used as a bludgeon to effect personal injury). It is the manner in which the knife was used or intended to be used and its potential for inflicting serious bodily injury that is determinative. See State v. Lupien, 143 Vt. 378, 382, 466 A.2d 1172, 1174 (1983) ("There can be no doubt that a weapon such as numchuks, capable of shattering a clavicle in one quick strike, constitutes a deadly weapon for purposes of 13 V.S.A. § 1024(a)(2)."); cf. State v. Deso, 110 Vt. 1, 8, 1 A.2d 710, 714 (1938) ("[A] dangerous weapon is a weapon which in the way it is used or attempted to be used may endanger life or inflict great bodily harm.") (emphasis added). Defendant threatened to use the knife on the victim if the video game he sought was not found, stabbed the victim with the knife when the game was not found, and caused a wound requiring stitches. There is no doubt, given the evidence, that a jury could reasonably conclude that the stabbing manner in which the knife was used to inflict injury upon the victim was known by defendant to be capable of producing serious bodily injury. See State v. Persuitti, 133 Vt. 354, 361, 339 A.2d 750, 755 (1975) (upholding conviction for aggravated assault on grounds that a metal pipe is a deadly weapon; noting that "[i]f the jurors credited the attack at all, it is difficult to conceive how they could have found the weapon used to be anything other than deadly").

¶ 10. Defendant also claims that the State failed to meet its burden because the knife itself was not entered into evidence. However, if the State fails to introduce the weapon used in the assault, it can meet its burden by introducing testimony about that weapon and the details of the injuries caused, as long as the evidence is sufficient for a reasonable trier of fact to conclude that a deadly weapon was used. See Prior, 174 Vt. at ___, 804 A.2d at 773 (victim's description of folding knife during her testimony was considered sufficient for a reasonable trier of fact to conclude that a deadly weapon was used); see also State v. Miller, 146 Vt. 164, 169, 502 A.2d 832, 835 (1985) ("Circumstantial evidence will sustain a conviction if it is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.") (citations omitted). Here, Bushey testified that defendant stabbed Wright with a knife approximately three inches long. The victim's mother testified that she saw "a stab, a knife wound" longer than one inch on the back of her son's leg. The victim's wound required stitches. Given this testimonial evidence, a jury could reasonably conclude the knife was a deadly weapon. Accordingly, defendant's argument that the State failed to meet its burden in proving that he used a deadly weapon as defined by 13 V.S.A. § 1021(3) fails.

¶ 11. Defendant's second claim is that he is entitled to a new trial because the trial court committed prejudicial error by allowing Bushey...