1. Effect of fine as alternative punishment.

Under provisions of this section, fact that an offense may be punished by such imprisonment makes it a felony, and fact that there is an alternative penalty of a fine does not reduce the offense to a misdemeanor. In re Mears, 124 Vt. 131, 198 A.2d 27 (1964); State v. Howard, 108 Vt. 137, 183 A. 497 (1936).

2. Effect of section on pleading.

This section afforded no test for requirements of pleading, and hence an indictment for adultery, which was felony only by virtue of general statutory classification, did not have to allege act to have been "feloniously" done, since intent was not an ingredient of the crime. State v. Clark, 83 Vt. 305, 75 A. 534 (1910).

3. Offenses charged conjunctively.

Where a statute defines as an offense two or more separate and distinct acts, things, or transactions enumerated in the disjunctive, the offenses may be charged conjunctively and the respondent found guilty on any one. State v. Barr, 126 Vt. 112, 223 A.2d 462 (1966).

4. Accessories and principals.

Action of court, during trial of defendant charged as a principal in offense of simple assault by recklessly causing bodily injury, in permitting state to offer evidence that defendant was acting as an accomplice did not improperly deprive defendant of opportunity to adequately or timely prepare a defense to charge that she was acting as an accomplice; because charged offense was a misdemeanor, defendant could be informed against, tried and convicted as a principal, irrespective of whether the nature of defendant's participation in the commission of the offense was as a principal or an accomplice. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777 (1981).

Cited. State v. Colby, 140 Vt. 638, 443 A.2d 456 (1982); United States v. Whitcomb, 767 F. Supp. 79 (D. Vt. 1991); State v. Gardner, 167 Vt. 600, 709 A.2d 499 (mem.) (1998); State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

1. Jurisdiction.

This section should not be interpreted to deprive Vermont of a state's common-law jurisdiction over out-of-state conduct that produces harmful results within the state. State v. Doyen, 165 Vt. 43, 676 A.2d 345 (1996).

In the case of defendant convicted of counseling burning of his automobile to defraud his insurer, since the arrangements for burning the automobile were made with the accomplices who actually did it in Vermont and defendant left the automobile with the keys in it and a note of instruction to his accomplices at his Vermont worksite, trial court correctly exercised jurisdiction over the offense charged, notwithstanding the fact that the burning took place in New Hampshire. State v. Mosher, 143 Vt. 197, 465 A.2d 261 (1983).

1. Common law.

This section addresses only felony liability and thus, does not repeal the common law crime of aiding in the commission of a misdemeanor. State v. Damon, 178 Vt. 564, 878 A.2d 256 (mem.) (May 2, 2005).

This section does not preclude charging a criminal actor as a principal if he or she could be charged as such under the common law. State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986).

2. Participants as principals.

Accomplice liability is meant to convict defendants who intended to, and did in fact, aid in the commission of the charged offense, but who were not the primary perpetrators of the crime or did not participate in every aspect of the planned illegal act. State v. Pitts, 174 Vt. 21, 800 A.2d 481 (2002).

Jury instruction that a finding of participation in the execution of the unlawful design would support conviction as a principal and that mere presence was not enough to establish participation was in accordance with this section. State v. Miller, 146 Vt. 164, 502 A.2d 832 (1985).

This section permits the conviction of a person charged as a principal, who has been shown to have done no more than aid in the commission of the crime. State v. Jaramillo, 140 Vt. 206, 436 A.2d 757 (1981).

In misdemeanors, all participating parties are considered to be principals. State v. Sears, 130 Vt. 379, 296 A.2d 218 (1972); State v. Bosworth, 124 Vt. 3, 197 A.2d 477 (1963).

Historical division of principals between first and second degrees, the latter being an accessory before the fact who was not present, or at least was not acting, during commission of the crime, often called an aider and abettor, is not part of Vermont law. State v. Sears, 130 Vt. 379, 296 A.2d 218 (1972).

Where several persons combine under a common understanding and with a common purpose to do an illegal act, each one is criminally responsible for the act of each and all who participate with him in the execution of the unlawful design. State v. Barr, 126 Vt. 112, 223 A.2d 462 (1966); State v. Orlandi, 106 Vt. 165, 170 A. 908 (1934), overruled on other grounds in State v. Bacon, 163 Vt. 279, 658 A.2d 54 (1995).

All who knowingly and intentionally participate in commission of misdemeanor are principals, and may be convicted thereof either separately or jointly. State v. Orlandi, 106 Vt. 165, 170 A. 908 (1934), overruled on other grounds in State v. Bacon, 163 Vt. 279, 658 A.2d 54 (1995).

3. Acquittal of principal.

The acquittal of an alleged principal does not collaterally estop the prosecution from seeking conviction of an alleged aider and abettor. State v. Miller, 146 Vt. 164, 502 A.2d 832 (1985).

4. Sufficiency of acts to establish participation.

To establish defendant's guilt of aiding in aggravated murder of two victims, the State needed to prove that defendant aided his accomplice in the commission of each murder and had the requisite intent with respect to each murder. State v. Perez, 180 Vt. 388, 912 A.2d 944.

Since "aiding" in commission of a crime is a broader concept than "aiding and abetting", special pleading may be necessary in some cases. State v. Sears, 130 Vt. 379, 296 A.2d 218 (1972).

The presence of a preconceived plan with a common criminal objective, plus participation in its accomplishment to some substantial measure, will support an information charging a participant as a principal. State v. Sears, 130 Vt. 379, 296 A.2d 218 (1972).

Presence at scene of crime is not alone sufficient to establish participation or aiding or abetting, unless there is something to show that person so present in some way had procured or incited or encouraged the act done by the principal perpetrator, yet where such presence is by preconcert with a design to encourage, incite, or, if it should become necessary, to render assistance, then, even though no particular act is shown, there is participation. State v. Mecier, 126 Vt. 260, 227 A.2d 298 (1967); State v. Orlandi, 106 Vt. 165, 170 A. 908 (1934), overruled on other grounds in State v. Bacon, 163 Vt. 279, 658 A.2d 54 (1995).

5. Intent.

Defendant need not share with the principal the intent to use the exact means of the crime, so long as she shares the intent to commit all the elements of the crime. State v. Pitts, 174 Vt. 21, 800 A.2d 481 (2002).

Although 13 V.S.A. § 3, which provides that a person who aids in the commission of a felony shall be punished as a principal, does not include an intent element, there is an implied element of intent in the statute. State v. Bacon, 163 Vt. 279, 658 A.2d 54, cert. denied, 516 U.S. 837, 116 S. Ct. 117, 133 L. Ed. 2d 67 (1995).

The purpose of the accomplice-liability rule is not to permit the conviction of participants to a crime who never intended a co-felon to commit the acts in fact committed; rather, the rule is intended to allow the conviction of defendants who intended to, and did in fact, aid in the commission of the charged offense, but who were not the primary perpetrators of the crime or did not participate in every aspect of the planned illegal act. State v. Bacon, 163 Vt. 279, 658 A.2d 54, cert. denied, 516 U.S. 837, 116 S. Ct. 117, 133 L. Ed. 2d 67 (1995).

Trial court did not err in refusing defendant's request to instruct jury that defendant could be convicted of aiding in the commission of a felony (bank robbery) only if he had the intent of permanently depriving the bank of its property, even though court's view of the intent element for assault and robbery was erroneous and the defendant's view was correct, where court's instruction on accessory liability was correct and specifically stated that defendant could be convicted only if he acted with same intent as that required for his accomplice. State v. Davignon, 152 Vt. 209, 565 A.2d 1301 (1989).

6. Evidence.

Fact of complicity in or aiding and abetting commission of crime could be proved by circumstantial evidence. State v. Orlandi, 106 Vt. 165, 170 A. 908 (1934), overruled on other grounds in State v. Bacon, 163 Vt. 279, 658 A.2d 54 (1995).

7. Misprision of felony.

Misprision of felony was offense at common law, and was a criminal neglect either to prevent a felony from being committed or to bring offender to justice after its commission, but without such previous concert with or subsequent assistance of him as will make the concealer an accessory, either before or after the fact. State v. Wilson, 80 Vt. 249, 67 A. 533 (1907).

The common law as to the misprision of felony is a part of law of this state. State v. Wilson, 80 Vt. 249, 67 A. 533 (1907).

Information for misprision of felony was insufficient, unless it alleged that respondent intended to obstruct and hinder due course of justice and to cause felon to escape punishment. State v. Wilson, 80 Vt. 249, 67 A. 533 (1907).

8. Indictment and information.

Where the evidence establishes beyond a reasonable doubt that a defendant acted with the same intent as required to convict the principal, a defendant charged only as a principal may be convicted on the basis of accomplice liability. State v. Pitts, 174 Vt. 21, 800 A.2d 481 (2002).

State's attorney could join counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores in one information. State v. Dopp, 127 Vt. 567, 255 A.2d 186 (1969).

Where information joined counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores, the court would, in the interests of orderly criminal procedure and protection of accused against prejudice which would result from the introduction of evidence on each offense, grant accused the right to have the state elect only one count upon which to proceed with trial. State v. Dopp, 127 Vt. 567, 255 A.2d 186 (1969).

9. Review.

The issue on review of a conviction under this section is whether a jury could reasonably conclude beyond a reasonable doubt that a preconceived criminal plan existed in which defendant participant. State v. Miller, 146 Vt. 164, 502 A.2d 832 (1985).

10. Instructions.

In a prosecution of defendant for aiding in aggravated murder, jury instructions accurately and clearly described the State's burden of proof where they explained the elements of the crime, and stated that to prove defendant's guilt as an accomplice, the State needed to show that defendant and his accomplice acted under a common plan. The court provided an in-depth explanation of what was required to establish a "common plan," including the requirement that defendant share his accomplice's intent to commit all of the legal elements of the offense. State v. Perez, 180 Vt. 388, 912 A.2d 944.

Instruction accurately reflected jurisprudence on accomplice liability where it required that, in order to convict defendant, the jury had to find that defendant and the principal came to a common plan, that defendant materially participated in that, and that she just didn't happen to be there when it happened or that the principal did it without defendant's knowledge, understanding, or agreement. State v. Pitts, 174 Vt. 21, 800 A.2d 481 (2002).

*11. Pecuniary injuries.

Defendant's motion for a judgment of acquittal aiding in aggravated murder was properly denied where there was ample evidence in this case to establish defendant's guilt. State v. Perez, 180 Vt. 388, 912 A.2d 944.

12. Statute of limitations.

Accessory to felony charge is not a separate and distinct "other felony" for purposes of the three-year statute of limitations, as it is not wholly divorced from the principal crime to which the person is allegedly an accessory. In re Hyde, 200 Vt. 103, 129 A.3d 651 (2015).

State's prosecution of defendant as an accessory to commit sexual assault on a child under the age of 16 was within the statute of limitations. Assuming arguendo that the limitations period could be triggered by the commission of the acts, as opposed to the later reporting of those acts, the limitations period began with the last alleged instance of defendant's aiding and abetting a friend to sexually molest defendant's daughter; either under the original charge against defendant or the amended charge to which she pled, the State's prosecution was within the statute of limitations. In re Hyde, 200 Vt. 103, 129 A.3d 651 (2015).

Accessory felony charges are categorized alongside their underlying principal felonies for purposes of the statute of limitations. In re Hyde, 200 Vt. 103, 129 A.3d 651 (2015).

Cited. State v. Stewart, 140 Vt. 389, 438 A.2d 671 (1981); State v. Neale, 145 Vt. 423, 491 A.2d 1025 (1985); State v. Hamlin, 146 Vt. 97, 499 A.2d 45 (1985); State v. Knapp, 147 Vt. 56, 509 A.2d 1010 (1986); State v. Smail, 151 Vt. 340, 560 A.2d 955 (1989); State v. Parker, 151 Vt. 378, 560 A.2d 383 (1989); State v. Millette, 173 Vt. 596, 795 A.2d 1182 (mem.) (2002).

1. Common law.

This section does not preclude charging a criminal actor as a principal if he or she could be charged as such under the common law. State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986).

2. Section permissive.

The word "may" in this section was used in its ordinary sense and was permissive rather than mandatory. State v. Levine, 117 Vt. 320, 91 A.2d 678 (1952).

3. Application to felonies.

This section placed accessories before the fact upon same grade as principals in felonies as well as in misdemeanors. State v. Marsh, 70 Vt. 288, 40 A. 836 (1898).

4. Elements.

Where respondent and others formed plan for filling out and cashing stolen blank checks, and respondent and a friend, falsely posing as a married couple and using identification papers showing friend to be a different person, cashed a check, friend presenting check and respondent standing some distance away in store, and, when they were arrested a short time later, respondent possessed social security card used by friend to show a different identity, respondent was an accessory before the fact under statute and could, under such statute, be charged and punished as a principal. State v. Sears, 130 Vt. 379, 296 A.2d 218 (1972).

5. Acquittal of principal.

The acquittal of an alleged principal does not collaterally estop the prosecution from seeking conviction of an alleged aider and abettor. State v. Miller, 146 Vt. 164, 502 A.2d 832 (1985).

Cited. State v. Hamlin, 146 Vt. 97, 499 A.2d 45 (1985).

1. Elements.

A necessary element of the offense of being an accessory after the fact is that none of the relationships enumerated in this section exists between the principal and the accessory. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

2. Sufficiency of indictment.

An indictment charging one as accessory after fact under this section must allege that respondent did not stand in any of those relations to the principal offender, which are excepted from the operation of the statute. State v. Butler, 17 Vt. 145 (1845).

Principal offender and the accessory may be indicted together. State v. Butler, 17 Vt. 145 (1845).

3. Evidence.

Evidence indicating that murderer had a plan to burn automobile used in the crime, defendant went to murderer's apartment, they left shortly thereafter, murderer in the automobile and stating he had "no idea where to take it" and defendant in another vehicle and saying "don't worry about it, I know," there being no evidence of the direction each took, and that the automobile was found ablaze shortly thereafter, there being no direct evidence defendant had been there or burned the automobile or of the cause of the fire, was insufficient to sustain a finding that defendant helped burn the automobile, and conviction would be reversed where it was charged defendant helped murderer avoid arrest and punishment by threatening an eyewitness and helping to destroy the automobile and where the court instructed that defendant be found guilty if he did either of the alleged acts, for the verdict could have been based on an allegation not supported by the evidence. Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26 (1975).

Where information charged that defendant assisted a named person in avoiding arrest and imprisonment for murdering a named person, in that he threatened the life of an eyewitness to prevent her from telling the truth about the killing and he helped the murderer destroy an automobile which had been used in the killing, and where the jury was instructed to find defendant guilty if it found he did either of the alleged acts, there had to be sufficient evidence of both allegations, and the verdict would be set aside where the evidence that defendant helped destroy the automobile was insufficient, because under the conjunctive allegation in the information, and the court's instructions, the guilty verdict could have been based on either or both allegations. Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26 (1975).

4. Exemption.

The manifest intent of the exemption in this section is to avoid criminalizing assistance to family members in evading prosecution, and the task of the supreme court is to give effect to the intent behind the exemption which the legislature has delineated. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

By its terms this section does not criminalize acts assisting siblings (or other related persons) escape prosecution, and does not remove the exemption if the sibling committed the underlying felony with others. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed jointly by the defendant's brother and another person, and where the defendant's brother was a juvenile at the time of the offense, this section and its sibling exemption applied to the defendant and the defendant could not be prosecuted under this section, since conviction of the underlying felony was not required by this section, but rather commission of an act which constituted a felony was the predicate to liability for assisting the offender; moreover, the exemption was defined by one's relationship to an "offender" who committed a "felony"; and therefore, although the defendant's brother could not have been punished as an adult for his act at the time of the offense, there was no question that the act he committed was a felony. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed jointly by the defendant's brother and another person, and where the defendant's purported crime consisted entirely of deeds helping both his brother and the other person, whom he never assisted independently of his brother, the defendant's actions on behalf of his brother were not criminal under this section; to construe this section otherwise would distort its plain language. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed by the defendant's brother and another person, the construction of this section offered by the State, namely that it did not exempt the protection of a co-defendant of a related offender, would frustrate the intent of the exemption by criminally penalizing individuals who assist family members on the basis of the involvement of co-defendants. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed jointly by the defendant's brother and another person, and where the defendant's purported crime consisted entirely of deeds helping both his brother and the other person, whom he never assisted independently of his brother, even if the supreme court considered the application of this section ambiguous, the court would conclude that the defendant could not be prosecuted for his conduct, since the defendant's construction of this section, that the sibling exemption applied where the sibling committed the underlying felony with others, was reasonable and must therefore be preferred to the contrary construction offered by the State. State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982).

Cited. State v. Ritchie, 144 Vt. 121, 473 A.2d 1164 (1984); State v. Davignon, 152 Vt. 209, 565 A.2d 1301 (1989); State v. Platt, 158 Vt. 423, 610 A.2d 139 (1992).

1. Common law.

This section does not contain any unambiguous language preempting the common law doctrine of innocent agent. State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986).

2. Elements of crime.

The crime of solicitation, under this section, is completed when a person advises, counsels or solicits another to commit a felony regardless of whether the crime is actually completed. State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986).

Defendant could have been charged with solicitation under this section for ordering another person to perform sexual intercourse with the victim, even though the order was not carried out. State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986).

Under this section it is a crime to endeavor to incite a felony whether or not such endeavor was successful. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

One who advises, counsels, or solicits another to commit a felony, without more, violates this section, even though such crime is not committed or attempted. State v. Hudon, 103 Vt. 17, 151 A. 562 (1930).

3. Sufficiency of information.

Fact of defendant's offering money to his niece in return for her allowing him to have sex with her eight year old daughter was sufficient to charge him with a violation of this section because he had solicited the niece to commit the felony of being an accomplice (prohibited by 13 V.S.A. § 3) to defendant's aggravated sexual assault (prohibited by 13 V.S.A. § 3253(a)(8)). State v. Rooney, 173 Vt. 506, 788 A.2d 490 (mem.) (2001).

Information charging that respondent did willfully, maliciously, and feloniously endeavor to incite, procure, and hire a specified person to burn latter's barn, with intent to defraud certain insurance company, was sufficient to charge violation of this section. State v. Hudon, 103 Vt. 17, 151 A. 562 (1930).

4. Evidence.

In regard to charge of inciting another to commit a felony, evidence of instant messaging text of defendant's requests to mother to pose her child, take pictures for his viewing, and solicitation of her consent to carry on his own lewd photo session was sufficient for a jury to reasonably conclude that defendant had incited mother to use her daughter in a sexual performance, and/or to consent to her daughter's participation in a sexual performance, both felony offenses. State v. Voorheis, 176 Vt. 265, 844 A.2d 794 (2004).

It is not necessary to demonstrate that arson was actually committed in order to sustain a conviction under this section for endeavoring to incite and procure and hire other persons to commit a felony. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

In such prosecution, whether what respondent did amounted to an endeavor to incite witness to burn his barn, was question for the jury, and not for witness, to be determined from all evidence in case bearing on that issue. State v. Hudon, 103 Vt. 17, 151 A. 562 (1930).

1. Misprision of felony.

See annotations under § 3 of this title.

2. Jury instructions .

Court at murder trial did not err in refusing to instruct jury on lesser-related offense of compounding a felony, where no evidence of that offense was presented at trial, and it was not consistent with defendant's theory of the case. State v. Corliss, 168 Vt. 333, 721 A.2d 438 (1998).

1. Construction.

Amendment to this section in 1993 impliedly repealed 13 V.S.A. § 2307. State v. Scribner, 170 Vt. 537, 746 A.2d 145 (mem.) (1999).

2. Elements of attempt.

Defendant's act of stabbing the victim twice in the throat constituted attempt to murder, as the victim's neck injury was sufficiently serious as to prove specific intent to kill, and a jury could reasonably interpret defendant's words that he would be back "to finish the job" to mean that he would be back later to kill the victim. Further, defendant's decision to leave the scene before he succeeded in killing the victim did not negate his specific intent to kill, as he was not thwarted by impossibility and had already committed the overt act. State v. Johnson, 195 Vt. 498, 90 A.3d 874 (2013).

An attempt requires intent to commit a particular crime and an overt act designed to carry out that intent. Hence, the act must advance the actor's conduct beyond mere intent, and reach far enough toward accomplishing the desired result to amount to the commencement of the consummation. Further, once the actor has committed the requisite overt act, the offense is complete, and abandonment of the enterprise does not negate guilt. State v. Synnott, 178 Vt. 66, 872 A.2d 874 (February 4, 2005).

Intent to commit grand larceny is not conditioned on showing that defendant was specifically aware of value of object stolen. State v. Houle, 157 Vt. 640, 596 A.2d 1292 (mem.) (1991).

The offense of an attempt to escape from lawful confinement is committed when an act is done with intent to gain release from custody and the performance of that act is part of a series of events which would lead to the intended result if not interrupted. State v. Morse, 130 Vt. 92, 286 A.2d 286 (1971).

Where, while garbage truck was at last pickup station before leaving prison, prisoner was emptied out of large refuse barrel along with its contents onto truck's tail gate and discovered immediately by a guard, guard's testimony to such events and identification of prisoner was proper basis for denial of motion for directed verdict. State v. Morse, 130 Vt. 92, 286 A.2d 286 (1971).

To constitute an attempt to commit a crime, act must be of such a character as to advance conduct of actor beyond sphere of mere intent; it must reach far enough towards accomplishment of desired result to amount to commencement of the consummation. State v. Hurley, 79 Vt. 28, 64 A. 78 (1906).

Mere facts that a prisoner lawfully in jail arranged for procuring saws adapted to jail breaking, and thereby got them into his possession, with intent therewith to break open the jail for purpose of escaping, did not constitute an attempt to break jail. State v. Hurley, 79 Vt. 28, 64 A. 78 (1906).

3. Indictment and information.

State's attorney could join counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores in one information. State v. Dopp, 127 Vt. 567, 255 A.2d 186 (1969).

Where information joined counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores, the court would, in the interests of orderly criminal procedure and protection of accused against prejudice which would result from the introduction of evidence on each offense, grant accused the right to have the state elect only one count upon which to proceed with trial. State v. Dopp, 127 Vt. 567, 255 A.2d 186 (1969).

4. Pleading.

Under Vermont practice, substance and effect of state's motion, prior to trial, to consolidate, for purposes of trial, a charge of passing a forged check and a charge of attempting to pass another check, also forged, was that the two cases be simply tried together, each retaining its identity, not that they be consolidated. State v. Moore, 131 Vt. 149, 303 A.2d 141 (1973).

5. Validity of conviction.

Where evidence of the attack on the victim showed that defendant's actions had advanced from "mere intent" to the "commencement of the consummation" of a sexual assault, it was sufficient to show, beyond a reasonable doubt, that defendant was guilty of attempted sexual assault; therefore, the trial court correctly denied his motion for judgment of acquittal on that charge. State v. Goodhue, 175 Vt. 457, 833 A.2d 861 (2003).

Defendant was properly convicted for two crimes, larceny from the person and attempted assault and robbery, where he committed larceny from the person of one victim by ripping a necklace with a coin off of her neck, and attempted assault and robbery by threatening to shoot that victim and her husband to gain access to their safe and its contents. State v. Setien, 173 Vt. 576, 795 A.2d 1135 (mem.) (2002).

Argument was rejected that failure by fish and wildlife department to strictly conform to guidelines, by use of a deer decoy, invalidated conviction for attempting to take a wild deer out of season. State v. Curtis, 157 Vt. 629, 603 A.2d 356 (1991).

6. Validity of sentence .

Where the crime was charged as attempted kidnapping because the victim escaped, but the initial restraint was accomplished with violence, and was reinitiated with violence and a weapon each time the victim managed to get away from defendant, sentencing in the same manner as the completed crime, as the legislature has decreed, is not constitutionally disproportionate. State v. Alexander, 178 Vt. 482, 871 A.2d 972 (mem.) (February 18, 2005).

7. Voyeurism.

Overt act of attempted voyeurism requires an action that would be likely to end in acquiring a view of the complainant's intimate areas. Here, because defendant was unable to see the complainant's intimate areas from his position on the ground, his actions of standing and looking would not be likely to end in the consummation of the crime intended; the act of merely looking at complainant's window from a place where no view of her intimate areas was possible was insufficient for the jury to find defendant guilty of attempted voyeurism. State v. Devoid, 188 Vt. 445, 8 A.3d 1076 (2010).

Where defendant was unable to see the complainant's intimate areas from his position on the ground, the State had not provided sufficient evidence of his intent to view the complainant's intimate areas as required for a criminal attempt. Defendant apparently obtained sexual gratification from watching the upper body of a woman he believed was naked, and the Court could infer from that fact that he would like to see her naked; the Court could not infer from the facts in the record, however, that he had the intent to commit voyeurism or would have committed that crime. State v. Devoid, 188 Vt. 445, 8 A.3d 1076 (2010).

When defendant, who should have been acquitted of attempted voyeurism, was unable to see the complainant's intimate areas from his position on the ground, there was no mistake; defendant necessarily knew that he could not complete the crime, and thus his conduct was equivocal. As a result, this was not an impossibility case. State v. Devoid, 188 Vt. 445, 8 A.3d 1076 (2010).

Cited. State v. Nash, 144 Vt. 427, 479 A.2d 757 (1984); State v. Brown, 153 Vt. 263, 571 A.2d 643 (1989); State v. Stevens, 175 Vt. 503, 825 A.2d 8 (mem.) (2003).

1. Instruction to jury.

Court's instruction to the jury on the crime of attempted rape where defendant was charged only with rape did not constitute unfair surprise; since a jury may return a verdict of guilty of attempt of the felony when the defendant is charged with the commission of that felony, an attempt being a lesser included offense, the judge correctly understood his duty to be to include a charge on attempt. State v. Young, 139 Vt. 535, 433 A.2d 254 (1981).

1. Constitutional law.

There was no merit to defendant's suggestion that the same prior felonies could not support a habitual-offender enhancement on more than one subsequent charge. The trial court's application of the habitual-offender enhancement did not violate the Double Jeopardy Clause, and was thus not error of any kind, much less plain error. State v. Stanley, 200 Vt. 341, 131 A.3d 1114 (2015).

Applying three factors in considering whether defendant's sentence, as a habitual criminal, amounted to cruel and unusual punishment proscribed by the Eighth Amendment despite being permissible under the habitual-criminal statute, revealed no constitutional infirmity. The factors applied are: (1) the gravity of the offense and the harshness of the penalty; (2) sentences imposed for other offenses in the same jurisdiction; and (3) sentences imposed for the same offense in other jurisdictions. State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

Claim that habitual offender charge was brought by prosecutor because defendant had vigorously asserted his constitutional rights in a prior case did not show unlawful discrimination under Fourteenth Amendment requiring dismissal of the charge. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

2. Generally.

This section defines a class of individuals, fourth offenders, subject to enhanced penalty upon conviction of a felony, and once the status of habitual offender is achieved the penalty for each subsequent offense is subject to enhancement to life imprisonment. State v. Kasper, 137 Vt. 184, 404 A.2d 85 (1979), overruled in part by State v. Discola, 2018 VT 7, 207 Vt. 216, 184 A.3d 1177.

3. Indictment to show conviction.

The indictment should allege offense for which party is to be tried, and also set up in indictment separate counts alleging his conviction at certain times and places as the record may show. 1942 Op. Atty. Gen. 422.

4. Notice to defendant.

This section which permits state to seek life sentence on felony charge following conviction of three felonies is not available to state unless appropriate notice of that intent is given by process to defendant, just as notice must be given in other cases where repeated offenses may increase the penalty. State v. Cabrera, 127 Vt. 193, 243 A.2d 784, cert. denied, 393 U.S. 968, 89 S. Ct. 404, 21 L. Ed. 2d 379 (1968).

5. Effect of lack of notice.

Charging defendant as habitual criminal was not "double enhancement" of his prior convictions for DUI, and since defendant properly faced charge punishable by life imprisonment, he could lawfully be held without bail. State v. Gardner, 167 Vt. 600, 709 A.2d 499 (mem.) (1998).

Inasmuch as life sentence option was not open in case for failure of state to give appropriate notice of intention to seek life sentence on felony charge following conviction of three felonies, this section which permits life sentence did not bar states' attorney from proceeding by information under provisions of § 5652 of this title. State v. Cabrera, 127 Vt. 193, 243 A.2d 784, cert. denied, 393 U.S. 968, 89 S. Ct. 404, 21 L. Ed. 2d 379 (1968).

6. Discretion.

Where the court imposed a sentence that was within statutory limits and was grounded explicitly on legitimate goals of criminal justice, namely restraint and deterrence, there was no abuse of the court's discretion in sentencing defendant to a term of twenty to thirty years in prison for being a habitual offender. State v. Ingerson, 176 Vt. 428, 852 A.2d 567 (2004).

Function of this section is to replace the sentence for a fourth or subsequent conviction of a felony with a life sentence, but as it reads "may be sentenced . . . for the term of his natural life," the life sentence is not compelled. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

7. Habitual offenders.

There was no error in sentencing defendant, who was convicted of violating an abuse-prevention order and of five misdemeanors, to five to fourteen years under the Habitual Offender Act. Defendant's sentence was neither contrary to his plea agreement, nor inconsistent with the minimum authorized by statutes other than the Act, nor beyond the enhanced maximum allowed by the Act. State v. Carpenter, 193 Vt. 484, 70 A.3d 1023 (2013).

Habitual Offender Act says only that habitual offenders may be imprisoned "up to and including life"; there is no expressed limit on the court's authority to sentence to any term less than "up to" life. The statute is silent as to any consideration of the maximum penalty otherwise provided for nonhabitual offenders. State v. Carpenter, 193 Vt. 484, 70 A.3d 1023 (2013).

Person convicted of three felonies arising from same incident could, upon finding that he had five previous felony convictions, have his three sentences enhanced each to life imprisonment under this section. State v. Kasper, 137 Vt. 184, 404 A.2d 85 (1979), overruled in part by State v. Discola, 2018 VT 7, 207 Vt. 216, 184 A.3d 1177.

8. Foreign crimes.

Crimes of robbery and aggravated robbery under Pennsylvania law both include all the elements of the Vermont crime of larceny from the person, a felony, and are thus, under this section, crimes which would be felonies in Vermont and which are therefore available to establish one as an habitual offender. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

Where Pennsylvania law under which defendant was convicted made it a crime to attempt to cause or intentionally or knowingly cause bodily harm to a police officer making or attempting an arrest which is lawful, and Vermont law made it a felony if, with intent to prevent a law enforcement officer from performing a lawful duty, one causes physical injury to any person, Pennsylvania conviction was for a crime which would a felony under Vermont law and thus was available to establish defendant as guilty under this section. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

Pennsylvania crime of kidnapping would be felony in Vermont under Vermont kidnapping law and is thus available to establish one as an habitual offender under this section's provision requiring three prior convictions of Vermont felonies or attempts to commit felonies or of crimes of other states which would be felonious if committed in Vermont. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

9. Same day convictions.

Convictions on the same day, for crimes arising from separate transactions, may be used to establish one as guilty under the habitual offender law. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

10. Bifurcated trial.

Where trial court divided trial into two parts, one covering felony charges and the other covering habitual offender charge, and ruled that it would use a single jury but that prosecution would not be allowed to use for impeachment any prior convictions to be used in the second part of the trial, such ruling protected defendant from prejudice, and court did not have to let him know before jury drawing whether or not the prior convictions charged in the habitual offender complaint were going to be used in impeachment and if so, let him know whether same jury would be used in second part of trial. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

11. Sentence options.

When one is found guilty of being an habitual offender for committing a fourth or subsequent felony, the sentencing options are for the felony constituting the fourth or subsequent conviction or for life under this section, and a sentence above the statutory maximum for the fourth or subsequent offense, but below life, is unauthorized. State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979).

12. Unanimous verdict.

There was no uncertainty about the unanimity of the jury's verdict on all four of defendant's prior convictions where the trial court asked the jury if it reached a determination on whether each conviction the State presented - attempt to defraud, false pretenses, burglary, and retail theft - was a felony and that defendant was the person who committed the offenses, and the jury responded affirmatively to each of the four convictions separately, responding that defendant "was the one who did it." State v. Setien, 173 Vt. 576, 795 A.2d 1135 (mem.) (2002).

13. Proof of convictions.

Because convictions are presumptively valid, defendant has the burden to prove that his prior convictions based on guilty pleas were not valid. State v. Setien, 173 Vt. 576, 795 A.2d 1135 (mem.) (2002).

Trial court did not err in denying defendant's request to exclude from the jury's consideration two convictions for which he could not obtain transcripts because he failed to make some showing that the prior convictions were invalid. State v. Setien, 173 Vt. 576, 795 A.2d 1135 (mem.) (2002).

14. Arraignment.

Plain error does not arise from a failure to arraign on a charge under the habitual criminal statute where the defendant had actual notice of the charge, had an opportunity to defend against it, and waived his right to a jury determination on the existence of the prior convictions required for an enhanced sentence under the statute; because defendant did not suffer any prejudice from the lack of an arraignment on the habitual offender allegation, the conviction must be affirmed. State v. Ingerson, 176 Vt. 428, 852 A.2d 567 (2004).

15. Felony convictions of minors.

The language of Vermont statutes defining a felony and providing that criminal proceedings against defendants between the ages of sixteen and eighteen may be transferred to juvenile court from the criminal courts at the discretion of the criminal courts makes plain that the Legislature intended that felony convictions of minor defendants could, in the trial court's discretion, be counted toward habitual-criminal status under Vermont's habitual-criminal statute. State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

Where defendant, then sixteen, pleaded guilty in adult court to offenses and did not either move for transfer to juvenile court or appeal from the venue of his convictions, which he could have done, it could not be said that the district court abused its discretion in imposing an enhanced sentence on defendant based on these prior convictions. State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

Defendant failed in his argument, based on statutes governing the sealing of records of court proceedings in which a minor is tried and convicted as an adult, that "convictions that can be expunged, upon application, from a defendant's record because they were obtained when he was a juvenile, should not be the basis for enhancing his exposure, now as an adult, to a potential life sentence." State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

16. Jury instructions.

Any error in the jury instructions as to habitual offenders, to which defendant had not objected at trial, was harmless. At no time had defendant contended that any of the predicate convictions were invalid or unproven, and defense counsel conceded during oral argument that all six predicate convictions were valid. State v. Bain, 185 Vt. 541, 975 A.2d 628 (2009).

17. Bail.

While it was true that defendant was not charged under the habitual offender statute - a statute that acted as a sentencing enhancement, not as a separate criminal violation - and that the felonies with which defendant was charged were not in themselves punishable by life imprisonment, this did not change the fact that defendant was charged with several felonies that, for him, were punishable by life imprisonment under the habitual offender statute. The plain language of the statute governing release in cases punishable by life imprisonment unambiguously applied to defendant, and the rule of lenity was therefore inapplicable. State v. Pellerin, 187 Vt. 482, 996 A.2d 204 (2010).

Court finds no basis for exempting from the statute governing release in cases punishable by life imprisonment those defendants whose potential for life imprisonment arises out of the habitual offender statute. State v. Pellerin, 187 Vt. 482, 996 A.2d 204 (2010).

Cited. In re Kasper, 145 Vt. 117, 483 A.2d 608 (1984); State v. Kasper, 152 Vt. 435, 566 A.2d 982 (1989).

1. Instructions.

Nothing in the lesser-included-offense statute implies that the lesser-included-offense instruction cannot be given if the defendant objects to it; indeed, it states that either party may request the instruction and that it "shall" be granted if supported by the evidence. By extension, this means that (1) the State may request a lesser-included-offense instruction, even over the defendant's objections, and (2) this request must be granted if supported by the evidence. State v. Bean, 202 Vt. 361, 149 A.3d 487 (2016).

Because of its value to the State and society, it is appropriate that Vermont law mandates the granting of the State's request for a lesser-included-offense instruction so long as the evidence supports it, even over the defendant's objections. Thus, the trial court did not err in giving a lesser-included-offense instruction requested by the State when defendant objected to it. State v. Bean, 202 Vt. 361, 149 A.3d 487 (2016).

1. Purpose.

The purpose of this section is said to be for the protection of the pregnant female, protection against interference with her condition, real or supposed, by outside parties, and insofar as this prevents unskilled and untrained persons from acting in an area properly medical, the statute is valid and necessary. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836 (1972).

2. Constitutionality.

This section, under which petitioner for post-conviction relief was charged with willfully assisting the procurement of abortion of two women, was not unconstitutionally vague as to petitioner. State v. Bartlett, 128 Vt. 618, 270 A.2d 168 (1970).

If the conduct of petitioner for post-conviction relief, who had plead guilty to two statutory charges of procuring an abortion, was such that he could clearly tell that it was prohibited, whether the statute is broadly phrased and could mislead someone else is immaterial. State v. Bartlett, 128 Vt. 618, 270 A.2d 168 (1970).

Petitioner for post-conviction relief who had plead guilty to two charges of willfully assisting the procurement of an abortion had no standing to attack this section as unconstitutional on the ground that the phrase "unless the same is necessary to preserve her life" was subject to interpretation by a doctor and that this delegates a power to a directly involved individual in violation of the fourteenth amendment and violates the doctor's constitutional rights. State v. Bartlett, 128 Vt. 618, 270 A.2d 168 (1970).

3. Application.

The prohibitory provisions of this section do not apply to the pregnant female; as to her, her personal rights have been left to her, and there is no legislative declaration saying that her own concerns for her personal integrity are in any way criminal or proscribed. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836 (1972).

Although this section avoids confrontation with the rights of a pregnant female, where it bars the medical aid such person seeks it is invalid and can not be resorted to by way of a criminal prosecution against the doctor. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836 (1972).

4. Elements of crime.

All that need be shown to warrant conviction is that respondent purposely did some of things prohibited intending thereby to procure miscarriage of a woman pregnant or supposed by him to be, and that such miscarriage was not necessary to save her life. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

Statute did not require an operation, or even a miscarriage. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

It was not essential to commission of offense of attempting to procure miscarriage of a woman pregnant with child that fetus should be alive at time attempt was made. State v. Howard, 32 Vt. 380 (1859), overruled on other grounds, State v. Briggs (1989) 152 Vt. 531, 568 A.2d 779.

State v. Howard (1859) 32 Vt. 380 [main volume], overruled on other grounds, State v. Briggs (1989) 152 Vt. 531, 568 A.2d 779.

5. Accomplices.

The pregnant woman is regarded by the law as a victim, and not an accomplice. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

Person responsible for woman's pregnancy, who took her to defendant's office and paid for an illegal operation, was an accomplice, and his testimony was to be so considered. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

6. Sufficiency of information.

Information charging commission of offense in two ways in alternative or disjunctive form, as that respondent "did . . . employ or cause to be employed certain means, to wit: by inserting or causing to be inserted a certain instrument or instruments" with intent to procure miscarriage of a pregnant woman, in violation of this section did not reasonably indicate the exact offense so as to enable respondent to make intelligent preparation for his defense, and was fatally defective both at common law and under ch. I, art. 10, of the constitution of Vermont. State v. Rouillard, 107 Vt. 487, 180 A. 890 (1935).

Words "the same" referred to miscarriage, and an averment that the means were not necessary to preserve the woman's life, was not equivalent to an averment that the miscarriage was not necessary. State v. Stevenson, 68 Vt. 529, 35 A. 470 (1896).

Since section contains excepting clause: "unless the same is necessary to preserve her life," indictment must negative the exception. State v. Stokes, 54 Vt. 179 (1881).

7. Effect of guilty plea.

Guilty plea to charge of willfully assisting the procuring of an abortion constituted an admission that the abortion was performed for a purpose other than saving the mother's life, which established the criminal intent necessary to support his conviction. State v. Bartlett, 128 Vt. 618, 270 A.2d 168 (1970).

8. Burden of proof.

Burden was on state to prove that a miscarriage was not necessary to preserve the life of the woman. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

9. Evidence.

If jury found as they might from evidence, that stories were invented by respondent to divert suspicion from himself, their introduction in evidence by him was circumstance tending to establish his guilt. State v. Marini, 106 Vt. 126, 170 A. 110 (1933).

Evidence, that at time of operation, woman was in good health, strong and robust, and was working was sufficient proof that operation was not necessary to preserve her life to take case to jury. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

Respondent's knowledge of pregnancy of woman and intent with which medicine was given her could be proved by circumstantial evidence. State v. Montifoire, 95 Vt. 508, 116 A. 77 (1922).

Where the fact of a deceased party's going to respondent's house for purpose of having him procure an abortion upon her person, was material, declaration of such person as to her purpose in going there, made at the time of her departure for that place, was competent evidence as part of the res gestae. State v. Howard, 32 Vt. 380 (1859), overruled on other grounds, State v. Briggs (1989) 152 Vt. 531, 568 A.2d 779.

10. Charge to jury.

It was proper for trial court in its charge, to limit to its impeaching effect, evidence introduced by respondent of statement of woman that she was not able to help herself, and desired witness, a physician, to perform an abortion upon her, such evidence having been received without objection, or limitation, and these facts having no tendency to show that respondent did not perform operation as claimed by the state. State v. Bolton, 92 Vt. 157, 102 A. 489 (1917).

Law review commentaries

Law review. Abortion choice and the law in Vermont, see 7 Vt. L. Rev. 281, 294 (1982).

1. Sufficiency of indictment.

Indictment should allege manner in which print and writing was made public or circulated. State v. Fiske, 66 Vt. 434, 29 A. 633 (1894).

1. Fornication.

Fornication was not a crime unless committed by persons between whom marriage was prohibited. State v. Manley, 82 Vt. 556, 74 A. 231 (1909).

2. Incest.

It was not necessary in an indictment charging incest to aver that respondent had knowledge of relationship existing between himself and particeps criminis. State v. Wyman, 59 Vt. 527, 8 A. 900 (1887); State v. Dana, 59 Vt. 614, 10 A. 727 (1887).

Where respondent was charged with committing incest with his niece and she testified against him, rule as to corroborative evidence merely required such confirmation of the particulars of the accomplice's story as convinced jury of its truth. State v. Dana, 59 Vt. 614, 10 A. 727 (1887).

Law review commentaries

Law review. Marriage status, law governing, see 19 B.U.L. Rev. 360 (1939).

1. Elements of crime.

If A married B, she having another husband then living, and subsequently married C, marriage with C is not bigamous, for A never was husband of B. State v. Sherwood, 68 Vt. 414, 35 A. 352 (1896).

2. Intent.

A person who, having a wife living, married another woman, in circumstances not within any exception of this section, was guilty of bigamy although at time of his second marriage he honestly believed, upon reasonable grounds, that his wife was dead. State v. Ackerly, 79 Vt. 69, 64 A. 450 (1906).

3. Conflict of laws.

Provision of New York Code prohibiting subsequent marriage of a libellee in divorce proceedings, applied only to persons divorced in that state, and did not render invalid marriage there of a person divorced in this state. State v. Bentley, 75 Vt. 163, 53 A. 1068 (1903).

4. Sufficiency of indictment.

It was not necessary to allege that respondent was not within any of exceptions or exemptions specified in this section. State v. Abbey, 29 Vt. 60 (1856).

5. Evidence.

Upon a trial for bigamy, evidence that person by whom a marriage ceremony was performed was reputed to be, and that he acted as a magistrate or minister, was admissible, and was sufficient prima facie proof of his official or ministerial character. State v. Abbey, 29 Vt. 60 (1856).

1. Circumstantial evidence.

Marriage in fact may be proved by circumstantial evidence. State v. Sherwood, 68 Vt. 414, 35 A. 352 (1896).

2. Presumption from cohabitation.

If a marriage in fact is proved, another marriage set up to defeat it must also be proved in fact, and presumption arising from cohabitation and repute will not be sufficient. State v. Sherwood, 68 Vt. 414, 35 A. 352 (1896).

This section, providing that in trials for bigamy marriage may be proved by acts of cohabitation, etc., applied to marriage of respondent, and not to other marriages which may incidentally be drawn in question. State v. Sherwood, 68 Vt. 414, 35 A. 352 (1896).

1. Intent.

Because the punishment for a violation of subsecs. (3) and (4) is not severe and the subsections do not include an intent element, in contrast to other subsections, the subsections are strict liability offenses. State v. Gadreault, 171 Vt. 534, 758 A.2d 781 (mem.) (2000).

2. Probable cause.

In an animal cruelty case, even if the warrantless search of defendants' home was unconstitutional, an officer's affidavit in support of the search warrant included sufficient other evidence to establish probable cause, as both a contractor and defendants' landlord stated that the animals were kept for long periods in extremely cramped conditions and in their own feces and urine, and that at least one dog was losing fur, and their account was corroborated by a video the landlord took. State v. Ferguson, - Vt. - , 236 A.3d 207 (May 29, 2020).

Cited. State v. Eldredge, 180 Vt. 278, 910 A.2d 816 (August 4, 2006).

1. Costs.

Following defendant's conviction of cruelty to animals, not only did the trial court not have to determine defendant's ability to pay prior to ordering her to pay reasonable costs, it had no discretion to award any amount less than reasonable costs. The only discretion allowed to the trial court was to determine whether the claimed costs were reasonable. State v. Eldredge, 180 Vt. 278, 910 A.2d 816 (August 4, 2006).

1. Constitutionality.

Statute permitting warrantless seizures when a humane officer witnesses a situation in which he determines that immediate action is required to protect an animal's health and safety is not unconstitutional simply because it permits such seizures. Hegarty v. Addison County Humane Society, 176 Vt. 405, 848 A.2d 1139 (2004).

2. Warrant requirement.

Humane officers should, whenever possible, obtain a warrant prior to seizing an animal; but, when the circumstances demand it and the statutory procedures are followed, humane officers have the authority to seize animals without a warrant. Hegarty v. Addison County Humane Society, 176 Vt. 405, 848 A.2d 1139 (2004).

3. Consent to search.

In regard to the search of defendant's kennel, where the factors demonstrating voluntariness on the part of defendant outweighed those suggesting that her consent was involuntary, the district court correctly found that she freely consented to the initial search of the kennel and, accordingly, the searches and seizures that followed were valid. State v. Stevens, 176 Vt. 613, 848 A.2d 330 (mem.) (2004).

District court did not err by denying defendant's motion to waive payment of security deposits required by this section where she failed to file the motion within forty-eight hours of the date of the decision. State v. Stevens, 176 Vt. 613, 848 A.2d 330 (mem.) (2004).

4. Costs.

Plain meaning of the animal cruelty enforcement statute empowers the trial court to determine whether the claimed costs were reasonable. State v. Sheperd, 204 Vt. 592, 170 A.3d 616 (June 2, 2017).

Following defendant's conviction of cruelty to animals, not only did the trial court not have to determine defendant's ability to pay prior to ordering her to pay reasonable costs, it had no discretion to award any amount less than reasonable costs. The only discretion allowed to the trial court was to determine whether the claimed costs were reasonable. State v. Eldredge, 180 Vt. 278, 910 A.2d 816 (August 4, 2006).

5. Veterinarian Requirement.

In an animal cruelty case, the trial court properly denied defendant's motion to suppress evidence on the ground that five horses had not been examined by a licensed veterinarian within 72 hours of defendant's voluntary surrender of them, as the veterinarian requirements throughout the animal cruelty statute were directed at animal welfare and not the privacy or evidentiary interests of individuals charged with animal cruelty. State v. St. Peter, 208 Vt. 1, 193 A.3d 1189 (2018).

Because the timing of a voluntary surrender cannot be predicted by a humane officer, and a voluntary surrender does not necessarily imply the level of urgency or danger to an animal that is required for a warrantless seizure or a seizure pursuant to a warrant, it makes sense that the Legislature has afforded humane officers somewhat more time to arrange a veterinary examination - 72 hours from the surrender - in the case of voluntary surrenders. If anything, this timing difference further reinforces that the veterinarian requirements throughout the animal cruelty statute are directed at animal welfare and not the privacy or evidentiary interests of individuals charged with animal cruelty. State v. St. Peter, 208 Vt. 1, 193 A.3d 1189 (2018).

Noncompliance with the veterinarian requirement of the provision governing search warrants in animal cruelty cases does not trigger the exclusionary rule and the suppression of evidence found during the search. Applying the exclusionary rule to guarantee statutory protections may be appropriate in some cases, but the requirement of a veterinarian's presence was not included to protect defendants; the veterinarian requirement stems from a concern for animal welfare and not for defendants' individual rights. State v. Sheperd, 204 Vt. 592, 170 A.3d 616 (June 2, 2017).

6. Burden of proof.

Because the standard of proof in an animal cruelty forfeiture proceeding is clear and convincing evidence, the court will apply the same standard in a harmless-error analysis. State v. Ferguson, - Vt. - , 236 A.3d 207 (May 29, 2020).

7. Evidence.

With regard to forfeiture of the animals in an animal cruelty case, it was error to admit hearsay statements because the forfeiture statute did not create a hearsay exception for statements within the affidavit. Furthermore, the error was not harmless, requiring remand, because the trial court assigned significance to the duration of the animals' conditions in concluding that forfeiture was warranted, and apparently relied on the hearsay reports in the affidavit in assessing the duration of their conditions. State v. Ferguson, - Vt. - , 236 A.3d 207 (May 29, 2020).

Animal cruelty forfeiture statute creates an exception to the hearsay requirement for the affidavit itself, but it does not by its plain language create an exception for otherwise-inadmissible statements contained within the affidavit. State v. Ferguson, - Vt. - , 236 A.3d 207 (May 29, 2020).

Cited. State v. Kornell, 169 Vt. 637, 741 A.2d 290 (mem.) (1999).

1. Evidence.

In a prosecution for arson, testimony of a witness whose first examination of burned premises took place some fifteen months after fire, during which time at least some changes had taken place on premises, and whose conclusion is that he cannot make a finding as to cause of fire could not create such a clear case of doubt of the respondent's guilt as would entitle him to an acquittal. State v. Brown, 122 Vt. 59, 163 A.2d 845 (1960), cert. denied, 365 U.S. 822, 81 S. Ct. 706, 5 L. Ed. 2d 699 (1961).

2. Multiplicity.

Actions specifically prohibited by the arson-causing-death statute are defined by reference to the victim, and a defendant may therefore be charged with multiple counts of arson causing death where multiple deaths result from the same act of setting a fire. Thus, counsel was not ineffective for not raising a multiplicity challenge. In re Williams, 197 Vt. 39, 101 A.3d 151 (2014).

Cited. State v. Larose, 144 Vt. 492, 479 A.2d 162 (1984).

1. Construction.

This section denounces as an offense a number of separate and distinct acts, enumerated in the disjunctive. State v. Polidor, 130 Vt. 34, 285 A.2d 770 (1971).

2. Information.

The separate and distinct acts denounced as an offense by this section and enumerated in the disjunctive may be charged conjunctively, and an accused may be found guilty of any of the acts. State v. Polidor, 130 Vt. 34, 285 A.2d 770 (1971).

Use of word "and" in information and warrant charging that accused did "willfully and maliciously set fire to, burn and cause to be burned," demonstrated that information and warrant was worded in the conjunctive, and wording was proper under rule that statute making separate and distinct acts on offense and disjunctively worded may be charged in the conjunctive. State v. Polidor, 130 Vt. 34, 285 A.2d 770 (1971).

Information and warrant charging that defendant did "willfully and maliciously set fire to, burn and cause to be burned, a shop" was worded in the conjunctive, and although state's evidence indicated only that defendant participated in the planning of the fire, supplied flammable material and rendered sprinkling system useless, defendant could not prevail on claim that information and warrant were defective, that this materially prejudiced him, and that state should have filed a conjunctive information as to all the acts disjunctively enumerated in this section. State v. Polidor, 130 Vt. 34, 285 A.2d 770 (1971).

Mere fact of burning of a building is not sufficient to establish corpus delicti in an arson prosecution, and if nothing more appears it will be presumed that the fire was the result of an accident or some providential cause, rather than the result of a criminal design. State v. Bessette, 129 Vt. 87, 271 A.2d 846 (1970).

The jury was justified in finding beyond a reasonable doubt that the fire in question was of incendiary origin and the requisite willfulness and malicious intent was established by the performance of the act itself. State v. Bessette, 129 Vt. 87, 271 A.2d 846 (1970).

3. Evidence.

There was sufficient evidence to support defendant's conviction for two counts of arson, such that denial of his acquittal motion was proper; there was evidence that the fires were intentional based, in part, on the psychological doctrine of chances arising from two prior fires at his house. State v. Vuley, 193 Vt. 622, 70 A.3d 940 (2013).

Uncontradicted testimony of accomplices that they joined defendant in sprinkling gasoline in various rooms of farm house and that defendant struck match and ignited building was sufficient to sustain conviction under this section. State v. Crepeault, 126 Vt. 338, 229 A.2d 245, cert. denied, 389 U.S. 915, 88 S. Ct. 249, 19 L. Ed. 2d 267 (1967).

4. Circumstantial evidence.

Incendiarism may be proved by circumstantial evidence. State v. Bessette, 129 Vt. 87, 271 A.2d 846 (1970).

5. Lesser-included offense.

Since this section requires proof of entry and first degree arson does not, the crime of setting fires is not a lesser-included offense of first degree arson. State v. Williams, 154 Vt. 76, 574 A.2d 1264 (1990).

6. Vacant dwelling house.

House which had not been occupied as a dwelling for prior year and a half and for which utilities were not currently in operation qualified as an unoccupied or vacant dwelling house under this section, even though house was in the process of renovation for future occupancy and was visited daily by the owner. State v. Williams, 154 Vt. 76, 574 A.2d 1264 (1990).

Cited. State v. Solomon, 144 Vt. 269, 476 A.2d 122 (1984); State v. Larose, 144 Vt. 492, 479 A.2d 162 (1984); In re Fadden, 148 Vt. 116, 530 A.2d 560 (1987); State v. Keith, 160 Vt. 257, 628 A.2d 1247 (1993); State v. Weller, 162 Vt. 79, 644 A.2d 839 (1994).

1. Establishing corpus delicti.

In order to prove the corpus delicti of arson it is not sufficient to show a burning, which may have been the result of an accident; it must be proved beyond a reasonable doubt that burning was not accidental, but was willfully and maliciously caused by some person who was morally responsible for his actions. State v. Teitle, 117 Vt. 190, 90 A.2d 562 (1952).

Where evidence at most raised a mere suspicion that fire was incendiary, respondent was entitled to a directed verdict. State v. Foss, 110 Vt. 453, 8 A.2d 648 (1939).

Mere fact of burning is not sufficient to establish corpus delicti in prosecution for maliciously burning building, for if nothing more appears it will be presumed that fire was result of accident or providential cause, rather than result of criminal design, but incendiarism may be proved by circumstantial evidence. State v. Lizotte, 109 Vt. 378, 197 A. 396 (1938).

Mere fact of burning is not sufficient to establish corpus delicti in prosecution for maliciously burning building, for if nothing more appears it will be presumed that fire was result of accident of providential cause, rather than result of criminal design, but incendiarism may be proved by circumstantial evidence. State v. Lizotte, 109 Vt. 378, 197 A. 396 (1938).

In such prosecution, that there were three simultaneous fires, two inside house and one in barn, that direction of wind was not from barn toward house, that windows in house were closed, and that there was no fire in stove, were sufficient to establish corpus delicti, since they would permit jury to find such three fires were not result of accidental or natural causes, but were willful act of some person. State v. Lizotte, 109 Vt. 378, 197 A. 396 (1938).

2. Burden of proof.

In a charge of arson under this section, the burden is on the state to prove there was a burning; that the fire was incendiary and that the defendants willfully and maliciously set fire to the building. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772 (1968).

3. Evidence.

Where evidence of the state established that there were no electrical connections in the shanty that burned, no smoking had taken place in the shack, nor were there any open containers of flammable material, jury was permitted to infer that the building did not catch fire in the way it did, and at the time it did, from some accidental or providential cause, but that such fire was incendiary. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772 (1968).

Evidence in arson prosecution was sufficient to support finding that the fire was incendiary and to support conviction of defendants. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772 (1968).

Defendants' performance of act of burning building was sufficient to establish willfulness and malicious intent. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772 (1968).

If evidence offered to prove arson was entirely circumstantial every reasonable hypothesis must be excluded except that defendants were guilty. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772 (1968).

Cited. State v. Bonilla, 144 Vt. 411, 477 A.2d 983 (1984); State v. Larose, 144 Vt. 492, 479 A.2d 162 (1984); State v. Parker, 151 Vt. 378, 560 A.2d 383 (1989).

1. Construction with other laws.

While monetary threshold contained in this section may be toward the lower end of the absolute scale, it is not so low in comparison to that of a great many states as to remove the Vermont definition of arson from the modern generic definition of arson, for purposes of determining whether a conviction under this section may be counted as "arson" under federal sentencing statute imposing enhanced penalties for possession of firearms by persons convicted of three previous felonies. United States v. Hathaway, 949 F.2d 609 (2d Cir. 1991), cert. denied, 502 U.S. 1119, 112 S. Ct. 1237, 117 L. Ed. 2d 470 (1992).

2. Elements.

The essential element of third degree arson in Vermont is a wilful and malicious burning of personal property. United States v. Hathaway, 949 F.2d 609 (2d Cir. 1991), cert. denied, 502 U.S. 1119, 112 S. Ct. 1237, 117 L. Ed. 2d 470 (1992).

Cited. State v. Smail, 151 Vt. 340, 560 A.2d 955 (1989); United States v. Hathaway, 757 F. Supp. 324 (D. Vt. 1991).

1. Information.

An information may charge conjunctively offenses which are enumerated disjunctively in this section. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

2. Presence at crime.

Actual presence of respondent at the premises is not necessary to constitute a violation of this section. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

Cited. State v. Seifert, 151 Vt. 66, 557 A.2d 494 (1989); State v. Bofanti, 157 Vt. 625, 603 A.2d 365 (1991).

1. Elements of offense.

Under this section it is a crime to procure an attempted burning as well as an actual burning. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

2. Accessory before the fact.

Fact that persons employed by respondent did not actually burn the premises in question does not relieve respondent of guilt as an accessory before the fact to attempted arson under this section. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

3. Jurisdiction.

In the case of defendant convicted of counseling burning of his automobile to defraud his insurer, since the arrangements for burning the automobile were made with the accomplices who actually did it in Vermont and defendant left the automobile with the keys in it and a note of instruction to his accomplices at his Vermont worksite, trial court correctly exercised jurisdiction over the offense charged, notwithstanding the fact that the burning took place in New Hampshire. State v. Mosher, 143 Vt. 197, 465 A.2d 261 (1983).

Cited. State v. Bonilla, 144 Vt. 411, 477 A.2d 983 (1984).

1. Lesser-included offense.

Since this section requires proof of entry and first degree arson does not, the crime of setting fires is not a lesser-included offense of first degree arson. State v. Williams, 154 Vt. 76, 574 A.2d 1264 (1990).

1. Elements of attempt.

When respondent was discovered under circumstances where striking of a match would have consummated the arson, there was sufficient evidence to support submission of the charge of attempted arson to the jury under the rule that the preparation must be such that it would be likely to end in the consummation of the crime if not extraneously interrupted. State v. Woodmansee, 124 Vt. 387, 205 A.2d 407 (1964).

2. Persons liable.

If the person solicited to commit a felony does any act which makes him guilty of an attempt, the person soliciting is also liable for the attempt. State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965).

1. Elements of offense.

State's burden in assault and robbery prosecution was to prove that defendant intentionally put victim in fear of imminent, serious bodily injury and intentionally deprived him of money, intending to do so permanently. State v. Powell, 158 Vt. 280, 608 A.2d 45 (1992).

Specific intent to deprive person of property permanently is an element of offense of assault and robbery. State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989).

Assault component of this section incorporates the elements of assault as defined in sections 1023 and 1021 of this title. State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989).

Conviction for attempted assault and robbery requires proof that the accused intended to permanently deprive victim of property taken. State v. Dennis, 151 Vt. 223, 559 A.2d 670 (1989).

Trial court did not err in refusing defendant's request to instruct jury that defendant could be convicted of aiding in the commission of a felony (bank robbery) only if he had the intent of permanently depriving the bank of its property, even though court's view of the intent element for assault and robbery was erroneous and the defendant's view was correct, where court's instruction on accessory liability was correct and specifically stated that defendant could be convicted only if he acted with same intent as that required for his accomplice. State v. Davignon, 152 Vt. 209, 565 A.2d 1301 (1989).

As a matter of law, a gun, whether loaded or unloaded, is a dangerous weapon when used in the commission of a robbery; actual danger is not an element of the offense of assault and robbery with a dangerous weapon. State v. Parker, 139 Vt. 179, 423 A.2d 851 (1980), overruled on other grounds, State v. Derouchie (1981) 140 Vt. 437, 440 A.2d 146.

2. Indictment and information.

Information charging assault and robbery under subsec. (a) of this section was not defective for failure to state that defendant committed offense intentionally. State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989).

Where original information charged larceny and on day of trial, immediately before drawing of jury, court allowed amendment to charge additional element of assault. and thus armed robbery, an additional or different offense was clearly charged by the amended information, and it was error to refuse to grant request for continuance. State v. Holden, 136 Vt. 158, 385 A.2d 1092 (1978).

3. Evidence.

Defendant failed in his argument that he took the gun from the victims to kill himself and, therefore, he did not intend to permanently deprive them of the gun because the evidence also showed that he intended to dispose of the gun such that he would not have had the ability to return the gun or ensure that it would be returned. State v. Little, 177 Vt. 612, 868 A.2d 686 (mem.) (December 13, 2004).

Defendant was properly convicted for two crimes, larceny from the person and attempted assault and robbery, where he committed larceny from the person of one victim by ripping a necklace with a coin off of her neck, and attempted assault and robbery by threatening to shoot that victim and her husband to gain access to their safe and its contents. State v. Setien, 173 Vt. 576, 795 A.2d 1135 (mem.) (2002).

Since attempted assault and robbery is a specific intent crime, evidence of intoxication may be considered to determine whether the accused acted with the required mental state for conviction. State v. Dennis, 151 Vt. 223, 559 A.2d 670 (1989).

4. Instructions.

Crime of assault and robbery involves an implied element of intent permanently to deprive owner of property taken, but omission of implied element from charge is generally not plain error. State v. Gabert, 152 Vt. 83, 564 A.2d 1356 (1989).

Jury instruction which failed to properly explain intent element of assault and robbery did not rise to level of plain error where question as to whether person who took victim's money had intent to deprive him of it permanently was not close or difficult. State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989).

Although assault is an essential element of the crime of assault and robbery, court's failure to issue separate instruction on assault as an element of robber trial for felony murder was not erroneous where the assault amounted to murder, whose elements had been fully explained to jury. State v. Wright, 154 Vt. 512, 581 A.2d 720 (1989), cert. denied, 498 U.S. 1032, 111 S. Ct. 692, 112 L. Ed. 2d 682 (1991).

Cited. State v. Moran, 141 Vt. 10, 444 A.2d 879 (1982); State v. Billado, 141 Vt. 175, 446 A.2d 778 (1982); State v. Savo, 141 Vt. 203, 446 A.2d 786 (1982); State v. Williams, 142 Vt. 81, 451 A.2d 1142 (1982); State v. Shores, 143 Vt. 224, 465 A.2d 269 (1983); State v. Boucher, 144 Vt. 276, 478 A.2d 218 (1984); State v. Chambers, 144 Vt. 377, 477 A.2d 974 (1984); In re Bruyette, 150 Vt. 557, 556 A.2d 568 (1988); State v. Clark, 152 Vt. 395, 566 A.2d 1346 (1989); State v. Kasper, 152 Vt. 435, 566 A.2d 982 (1989); State v. Villeneuve, 155 Vt. 360, 584 A.2d 1123 (1990); State v. Gilman, 158 Vt. 210, 608 A.2d 660 (1992).

1. Generally.

Though it has become customary in jurisprudence to refer to the term "assault and battery" as though it were a legal unit, a single concept, assault and battery are not synonymous terms. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

Public peace is that sense of security and tranquility which every person feels under protection of law and breach of peace is an invasion of protection which law thus affords. State v. Sanderson, 123 Vt. 214, 185 A.2d 730 (1962).

2. Elements of offense.

An act can create the requisite "substantial risk of death" without causing permanent physical damage; choking is a good example of such an act. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

An actual offer to use force to injure another is an assault, and the use of it is a battery. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

It is not required that the person threatened must necessarily be put in fear to constitute a breach of peace. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

Violation of this statute was supported by evidence that defendant, who had refused to leave auto not belonging to him upon request by police to do so, assaulted police officer both while in and out of auto by saying that he would kill him, and battered officer by striking him after he had left auto. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

Although terror usually accompanies crime of breach of peace in its aggravated form, fear is not an essential ingredient of offense, controlling factor being found in background and circumstances which attend alleged offense. State v. Sanderson, 123 Vt. 214, 185 A.2d 730 (1962).

*3. Assault.

An assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present, and although physical contact is not an essential element, violence, threatened or offered, is. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

To sustain a criminal complaint for assault it is not the secret intent of the accused or the undisclosed fact of his ability or inability to commit battery that is material, but rather, what his conduct and the attending circumstances denote at the time to the person assaulted. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

Simple assault is not a "specific intent" offense. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

4. Impairment of physical condition.

Cuts police officer received on his hand during altercation with person he was arresting were "an impairment of physical condition" under this section, though they were not serious. State v. Allen, 139 Vt. 303, 427 A.2d 373 (1981).

5. Evidence.

Trial court properly denied defendant's motion for judgment of acquittal of domestic assault. During a 911 recording, the complainant identified defendant and stated that she was beaten with his fists; the evidence contained in the 911 recording was supported by the responding officers' testimony and the photographs depicting the complainant's injuries; the evidence was sufficient to establish that by striking the complainant, defendant consciously disregarded a substantial and unjustifiable risk of bodily injury; and the evidence admitted could reasonably convince a jury that the cut above the complainant's eye was a "bodily injury" and that the complainant was a household member. State v. Kelley, 202 Vt. 174, 148 A.3d 191 (2016).

Evidence showing that the victim sustained a black eye, numerous bruises and abrasions, injury to her back, and two facial lacerations, one resulting in a permanent scar, was sufficient for the jury to conclude the victim sustained "substantial disfigurement." State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002).

Although the victim's permanent facial scar was not perceivable by the jury from across the courtroom, and the other injuries were temporary, the evidence was sufficient for the jury to conclude the victim sustained "substantial disfigurement"; neither visibility from a distance nor permanency is requisite to substantial disfigurement. State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002).

Jury's determination of substantial disfigurement was not required to be supported by expert medical testimony because whether proof of an element of a crime meets the standard of "substantial" is not a medical determination, but is a question of fact for the jury. State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002).

In a prosecution for aggravated domestic assault, the trial court did not err in denying defendant's motion for judgment of acquittal on the basis that there was insufficient evidence that the knife used in the assault was a deadly weapon, even though the knife itself was not entered in evidence, and the State instead relied entirely on the victim's testimony to prove this element of the crime. State v. Prior, 174 Vt. 49, 804 A.2d 770 (2002).

Evidence was sufficient for jury to reasonably find that assault victim's injuries, as well as his increased risk of glaucoma, constituted "serious bodily injury," and therefore defendant's motion for judgment of acquittal was properly denied. State v. Allen, 169 Vt. 615, 738 A.2d 113 (mem.) (1999).

In prosecution for aggravated assault in which "substantial risk of death" is sought to be proved, expert medical testimony is not required to prove a victim is in substantial danger of death when medical expert testifies victim was choked to the point of passing out. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

Motion for acquittal at trial for aggravated assault was properly denied, based on testimony that defendant repeatedly forced adopted stepdaughter's head into bucket of water, that victim was unable to breathe, that defendant choked her and that she lost consciousness and vomited blood. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

Acquittal of defendant on sexual assault charge did not render his conviction on charge of aggravated assault logically inconsistent, where evidence was sufficient to show defendant submersed victim's head in a bucket of water and choked her in an attempt to silence her about actions he had good reason to believe constituted a sexual offense. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

6. Sufficiency of information.

Where a person is equally well known by either of two names, an indictment for an assault and battery, charging him by either of such names, is sufficient. In re Crepeault, 126 Vt. 544, 236 A.2d 644 (1967).

Allegation in an information that respondent "did then and there willfully and unlawfully disturb and break the public peace by assaulting another person, to wit . . ." is sufficient to support a conviction for breach of the peace. State v. Goodsell, 122 Vt. 99, 165 A.2d 356 (1960).

7. Operation of motor vehicle.

Public peace may be transgressed by reckless, offensive operation of motor vehicle in such manner as to endanger safety and security of persons lawfully on or near highway. State v. Sanderson, 123 Vt. 214, 185 A.2d 730 (1962).

8. Instructions.

Trial court was not required to instruct the jury on all four disjunctive elements of "serious bodily injury" where there was no evidence to support two of those elements. State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002).

Trial court's instruction on the medical expert testimony was proper where its purpose was to inform the jury that what is "serious bodily injury" is for the jury to decide, not anyone else; although an expert is allowed to testify as to the ultimate issue to be decided, that testimony is not entitled to any particular reverence; rather it is the province of the jury to determine what weight to accord expert witness testimony. State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002).

Charge that breach of the peace may be committed by acts or statements likely to produce violence and disturbance of good order although such is not intended, that a design to inflict the precise injury is not essential, that personal injury through reckless conduct may constitute assault and battery although there was no actual intent to inflict injury, and that an assault is an attempt or offer with force or violence or do bodily harm to another under circumstances denoting at the time an intention to do so coupled with a present ability to effect the intent, that an assault may go further than threatening motions such as a clenched fist under circumstances indicating actual intent to do harm with present ability to do it, and that an assault may be, and usually is, committed by the actual and intentional application of physical force, considered in its entirety, had general tenor that a demonstration of unlawful intent, rather than actual intent, constitutes the offense, and was not error. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

Trial court properly charged that voluntary intoxication was not a defense available to defendant accused of disturbing and breaking the public peace by assaulting, beating and striking a police officer. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

9. Arrest and search.

Police officer had reasonable grounds to request that defendant leave auto where officer was acting on police dispatcher's notification that the owner of the auto had complained that a man was in his auto and would not leave, and arrest for offense committed under this section in officer's presence was authorized where defendant refused to leave, left only after being maced and then used obscene language and threatened to kill officer. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970).

10. Self-defense.

Where defendant did not strike the first blow, he had the right to use sufficient force to repel the attack made upon him. State v. Dragon, 128 Vt. 568, 268 A.2d 913 (1970).

An assailed person may beat his assailant so far as to make him desist, but cannot take his life or inflict great bodily harm unless he reasonably apprehends death or great bodily harm to himself, and does not have other means of avoiding the attack that appear to him at the time as sufficient and available and they are in fact not sufficient and available. State v. Dragon, 128 Vt. 568, 268 A.2d 913 (1970).

The amount of force one is justified in using in self-defense is that which reasonably appears to him to be necessary under all the circumstances, and whether one was justified in the particular occasion to use the force used depends upon whether the jury finds that it reasonably appeared to him that it was necessary to use it. State v. Dragon, 128 Vt. 568, 268 A.2d 913 (1970).

11. Burden of proof.

Evidence tending to show that defendant was first assaulted put the burden on the state to prove beyond a reasonable doubt that defendant's acts were not in self-defense. State v. Dragon, 128 Vt. 568, 268 A.2d 913 (1970).

12. Prior law .

The term breach of peace is generic and includes all violations of the public peace or order. State v. Wixon, 118 Vt. 495, 114 A.2d 410 (1955); State v. Thompson, 117 Vt. 70, 84 A.2d 594 (1951); State v. Christie, 97 Vt. 461, 123 A. 849 (1924); State v. Mancini, 91 Vt. 507, 101 A. 581 (1917).

It was not required that person threatened should necessarily be put in fear to constitute a breach of peace. State v. Wixon, 118 Vt. 495, 114 A.2d 410 (1955).

In order to secure a conviction on charge of breach of the peace the state must show more than a mere possibility that the respondent's act might produce violence or a disturbance of public peace. State v. Thompson, 117 Vt. 70, 84 A.2d 594 (1951).

The use of loud, profane and obscene language upon public highway in presence of others comes within definition of "tumultuous and offensive carriage" as used in V.S. § 458. State v. Ploof, 116 Vt. 93, 70 A.2d 575 (1950).

Evidence that respondent, after midnight, went along highway past houses occupied by non-union workmen and their families, shouting "scab," "bozo," and "rats," to annoyance, disturbance, and alarm of people living therein, warranted a conviction. State v. Christie, 97 Vt. 461, 123 A. 849 (1924).

Threats of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put person threatened in fear of their execution, and if they had that effect, and were calculated to produce that effect upon a person of ordinary firmness, constituted a breach of public peace, which was punishable by indictment. State v. Benedict, 11 Vt. 236 (1839).

An indictment for sending a written challenge to fight a duel will not lie under this section as originally passed March 4th, 1797. State v. S.S., 1 Tyl. 180 (1801).

*13. Sufficiency of complaint.

Complaint alleging that the respondent disturbed and broke the public peace by tumultuous and offensive carriage, in that he ran an automobile upon a public highway at a high rate of speed and in a dangerous, reckless and riotous manner, and in a manner to imperil the safety, peace and security of persons then using the highway, and put them in great fear of bodily harm, sufficiently charged a breach of the peace by tumultuous and offensive carriage, within the meaning of P.S. 5870. State v. Boyd, 91 Vt. 88, 99 A. 515 (1917).

Complaint which charges a breach of the peace by "threatening to strike, beat, injure and assault divers and sundry persons," without naming them or alleging that their names are unknown, was bad on general demurrer. State v. Bruce, 69 Vt. 98, 37 A. 238 (1896), same case 68 Vt. 183, 34 A. 701.

Complaint that respondent "did disturb and break the public peace by tumultuous and offensive carriage, by firing guns, blowing horns, and beating tin pans," charged offense. State v. Coffin, 64 Vt. 25, 23 A. 632 (1891); State v. Hanley, 47 Vt. 290 (1875).

Complaint charging an assault and battery, with force and arms, against form of statute and peace of state, etc., was a charge of a breach of the public peace. State v. Barrows, 57 Vt. 576 (1885).

The omission of "vi et armis" was not fatal, when averments in English showed that criminal act was committed with force and violence. State v. Hanley, 47 Vt. 290 (1875).

Complaint that respondents did break and disturb public peace by ringing a certain church bell, and, well knowing that one P was then living, did report and aver that P was dead and was to be buried on the next day and did ring the said bell with intent to have it believed that the said P was then dead and with intent to annoy, harass and vex the said P, and his family and friends, was insufficient. State v. Riggs, 22 Vt. 321 (1850).

*14. Force in defense of self or property.

A person does not have the right to use physical force in defense of his property against a person legally on the premises unless he has first asked him to leave and given him a reasonable opportunity to do so. State v. Bogie, 125 Vt. 414, 217 A.2d 51 (1966).

While unlawful arrest may be lawfully resisted, right of resistance, being in nature of self-defense, permits arrested person to use only such amount of force as reasonably appears to him to be necessary under circumstances. State v. Malnati, 109 Vt. 429, 199 A. 249 (1938).

Where court charged that a person in charge of property delivered to him to be kept is not justified in assaulting a trespasser in the first instance but must first require trespasser to depart, and then use only such force as is reasonably necessary to expel him, but if trespasser first uses violence, then person in charge, without a request to depart, may use violence in return; exception taken thereto on ground that notice is not necessary before person in charge may proceed to expel trespasser by force is not good. State v. Bean, 107 Vt. 513, 180 A. 882 (1935).

15. Serious bodily injury.

By its 1993 amendment of the definition of "serious bodily injury," the legislature intended that a conviction for aggravated assault can be sustained on evidence of "substantial disfigurement" that need not be "serious, permanent disfigurement." State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002).

16. Deadly weapon.

Because an object can be found to be a deadly weapon if it is objectively capable of causing harm, the box cutter here, which defendant was using to cut boxes and which thus could be understood to have sharp edges and to be capable of producing death or serious injury despite its unusual design, was a deadly weapon for purposes of conviction under the domestic assault statute. State v. Kuzawski, 206 Vt. 351, 181 A.3d 62 (Dec. 15, 2017).

Firearm employed in a threat against a family or household member need not be shown to be operable or loaded to constitute a deadly weapon; in the context of first-degree aggravated domestic assault, it is entirely irrelevant if a rifle brandished to punctuate a threat was loaded and able to fire when the threat was made, because this crime does not require an imminent threat. Consequently, a firearm did not have to be proven to be loaded and operable, immediately or otherwise, to constitute a deadly weapon in a prosecution for first-degree aggravated domestic assault, and the trial court did not err by omitting such a requirement in its instructions to the jury. State v. Longley, 182 Vt. 452, 939 A.2d 1028 (Oct. 12, 2007).

Cited. State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989); State v. Sorrell, 152 Vt. 543, 568 A.2d 376 (1989); State v. Papazoni, 159 Vt. 578, 622 A.2d 501 (1993); State v. Harrington, 174 Vt. 584, 816 A.2d 501 (mem.) (2002); State v. Turner, 175 Vt. 595, 830 A.2d 122 (mem.) (2003); State v. Baron, 176 Vt. 314, 848 A.2d 275 (2004).

1. History.

This section is patterned after the simple assault provision written into the Model Penal Code. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

2. Construction with other law.

Adoption in 1972 of Model Penal Code provisions relating to assault, including provision that a person is guilty of simple assault if he negligently causes bodily injury to another with a deadly weapon, repealed by implication 1931 law intended to encourage hunters to be careful and providing that one carelessly or negligently wounding another by gunshot shall be imprisoned or fined, for it is evident that both statutes cover the same subject and in such a case the statute which is the more recent will control, as it is the latest expression of the legislative will. State v. Watson, 138 Vt. 276, 413 A.2d 806 (1980).

Model Penal Code provision adopted in 1972, providing that a person is guilty of simple assault if he negligently causes bodily injury to another with a deadly weapon, and 1931 law intended to encourage hunters to be careful and providing that one carelessly or negligently wounding another by gunshot shall be imprisoned or fined, cannot logically stand together, for while the former is a misdemeanor and the latter a felony, the latter requires a less culpable state of mind; therefore, the former would be held to repeal the latter by implication. State v. Watson, 138 Vt. 276, 413 A.2d 806 (1980).

3. Questions for jury.

Where defendant was charged with attempting by physical menace to put another in fear of serious bodily injury under subdivision (a)(3) of this section, the question of whether or not the defendant's actions amounted to a simple assault was a question for the jury, to be resolved based upon all the surrounding circumstances, including the words spoken, the appearance and demeanor of the parties, and their conduct in light of the setting and circumstances. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

When persons attending an appointed lawful meeting of any description conduct themselves in a manner lawful in itself, but at variance with purpose of gathering and inconsistent with its orderly procedure, it will ordinarily be for jury to say whether their conduct was such as amounted, in circumstances, to a disturbance of peace. State v. Mancini, 91 Vt. 507, 101 A. 581 (1917).

4. Particular cases.

Error in admitting the victim's testimonial statement to an officer was not harmless because the victim's statement that she felt pain was the most direct evidence presented by the State on the question of bodily injury, a required element of simple assault by recklessly causing bodily injury. State v. Alers, 199 Vt. 373, 123 A.3d 825 (2015).

Defendant was not entitled to a judgment of acquittal on a charge of simple assault by recklessly causing bodily injury, as even in the absence of the victim's inadmissible statements, a reasonable jury could infer that the victim experienced pain when the State presented eyewitness testimony that with his arms around the victim's neck, defendant dragged her backwards toward a vehicle, that the victim was in a "chokehold," that defendant jostled her "like a ragged doll," and that the victim was screaming, "freaked out," and "beyond herself." State v. Alers, 199 Vt. 373, 123 A.3d 825 (2015).

Where defendant and another scuffled, defendant picked up a bottle and the other person picked up a rock and defendant advanced upon the other person, who backed up, at which time law enforcement officers arrived, and defendant never came closer than ten feet to the other person and did not attempt to throw the bottle or lunge toward the other person, conviction of simple assault in that defendant attempted to cause bodily injury to the other person would be reversed. State v. Boutin, 133 Vt. 531, 346 A.2d 531 (1975).

5. Defenses.

Intoxication does not negate the element of recklessness in subdivision (a)(1) of this section. State v. Galvin, 147 Vt. 215, 514 A.2d 705 (1986).

Where defendant, who was convicted of impeding and assaulting a police officer, claimed that he had been pushed into the officer and acted in self-defense when the officer tried to handcuff him after the initial contact, since the assault complaint related back to the initial contact, any subsequent facts were irrelevant, and could not be superimposed to form the basis of a self-defense charge to the jury. State v. Mitchell, 142 Vt. 517, 458 A.2d 1089 (1983).

In prosecution for assault of a police officer involving provocative conduct by the police, the jury, having been correctly charged on self-defense, was free to decide that the defendant's actions were not reasonable under the circumstances. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

Husband who was prevented by restraining order from being at the home of his estranged wife was not protecting himself from forceable removal from his property when police forcibly removed him from wife's home, he resisted, and blows were struck; and he was properly convicted of unlawful trespass and of recklessly causing bodily injury to a law enforcement officer performing a lawful duty. State v. Foster, 139 Vt. 18, 421 A.2d 1284 (1980).

Where defendant, tried for assault upon law enforcement officer who had attempted to serve process on defendant in his home, testified that as he walked down hall in his home someone jumped out at him and shoved something toward his face and he put his hands up to block the object and in doing so struck the officer, there was sufficient evidence to necessitate a charge on self-defense, and it was reversible error to refuse to give one. State v. Bartlett, 136 Vt. 142, 385 A.2d 1109 (1978).

6. Prior conduct.

Where, in prosecution for simple assault, court admitted evidence irrelevant to offense charged, relating to previous acts such as complaints to police and prior alleged assaults, there was a clear violation of rule relating to admissibility of testimony of previous conduct and offenses, warranting reversal and new trial. State v. Barcomb, 136 Vt. 141, 385 A.2d 1089 (1978).

7. Elements.

Since simple assault requires an attempt to cause bodily injury or an attempt to put another in fear of imminent serious bodily injury, while attempted sexual assault does not necessarily require such an act or attempt, simple assault is not a lesser included offense of attempted sexual assault. In re Nash, 149 Vt. 63, 539 A.2d 989 (1987).

Holding of supreme court in State v. Deso , 110 Vt. 1, 1 A.2d 710 (1938), which rejected the notion that present ability to inflict injury upon the person assailed was a prerequisite to a finding of simple assault is still valid even though this section has been amended since that case was decided. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

As a prerequisite to a finding of simple assault, while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

Where defendant charged under subdiv. (a)(3) of this section with attempting by physical menace to put another in fear of serious bodily injury possessed in the course of the alleged incident a handgun lacking a firing pin which therefore could not fire, his contention that the police officer assailed could not be put in actual danger as a result failed, since as a prerequisite to a finding of simple assault, while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

Simple assault requires proof of bodily injury or an attempt to cause bodily injury, an element not identical to an element of sexual assault or always necessarily included in the elements of sexual assault; therefore, one charged with sexual assault is not entitled to a jury instruction on simple assault. State v. Bourn, 139 Vt. 14, 421 A.2d 1281 (1980).

Regarding this section's provision that a person is guilty of simple assault if he negligently causes bodily injury to another with a deadly weapon, a state of mind more flagrant than ordinary negligence is required; the risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. State v. Watson, 138 Vt. 276, 413 A.2d 806 (1980).

8. Intent.

The crime of simple assault by recklessly causing bodily injury to another requires no proof of a specific intent to commit the offense. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777 (1981).

9. Fear of bodily injury.

The language of subdiv. (a)(3) of this section that sets forth an attempt by physical menace to put another in fear of serious bodily injury was intended to incorporate into the criminal law the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

Rationale for including the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury even if the alleged assailant acts without purpose to carry out the threat, within the definition of simple assault set forth in subdiv. (a)(3) of this section, is that a threat of an immediate battery resulting in apprehension, even when intended only as a bluff, is so likely to result in a breach of the peace that it should be a punishable offense. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

10. Accessories and principals.

Action of court, during trial of defendant charged as a principal in offense of simple assault by recklessly causing bodily injury, in permitting state to offer evidence that defendant was acting as an accomplice did not improperly deprive defendant of opportunity to adequately or timely prepare a defense to charge that she was acting as an accomplice because charged offense was a misdemeanor, defendant could be informed against, tried and convicted as a principal, irrespective of whether the nature of defendant's participation in the commission of the offense was as a principal or an accomplice. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777 (1981).

11. Instructions.

In the case of the defendant charged with attempting by physical menace to put another in fear of serious bodily injury under subdiv. (a)(3) of this section, the court properly instructed the jury that in determining whether or not the defendant intended to place the person assailed, a police officer, in fear they should consider both the bare actions of the defendant and how those actions were perceived by the officer. State v. Riley, 141 Vt. 29, 442 A.2d 1297 (1982).

On review of a conviction of simple assault against a police officer, the supreme court could not conclude that the trial court's instructions distinguishing between the enhanced crime of assault of a police officer under section 1028 of this title and simple assault so prejudiced the defendant as to deprive him of a right to a fair trial and mandate reversal, where the jury returned a verdict of not guilty on all counts of assault against one of the two officers and a not guilty verdict on the charge of assault and a guilty verdict only on the charge of simple assault against the other officer. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

In prosecution for assault of a police officer, the trial court's instructions, when viewed as a whole, properly instructed the jury on the enhanced crime of assault of a police officer under section 1028 of this title and the crime of simple assault where the court carefully and clearly explained each element of assault of a police officer and correctly distinguished the lesser included offense of simple assault, repeatedly emphasized the need to weigh all the circumstances, both to determine the lawfulness of the police conduct and to determine the reasonableness of the defendant's response, and instructed that this section has nothing to do with the status of the individual as a police officer and is without regard to whether the individual was acting in the performance of a lawful duty; the instruction that none of the acts of search and seizure were in themselves unlawful did not remove an essential element of the crime from the jury's consideration where the instructions also clearly were that, if the jury found that "the officer himself committed an assault, or used excessive force in dealing with the defendant prior to striking, then he was not performing a lawful duty and you [the jury] must find defendant not guilty." State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

Where, in prosecution for simple assault by recklessly causing bodily injury, court instructed jury that it could consider whether defendant was guilty of charged offense or of a lesser included offense, simple assault by mutual consent, and instructed jury that it could convict defendant as an accomplice even if it found defendant had caused no specific bodily injury to victim, jury verdict finding defendant guilty of simple assault by consent required a finding that the defendant had actually entered into a fight or struggle with the victim and that the defendant was liable as a principal, and, therefore, the portion of the court's instruction on the law of accomplice liability was surplusage and did not vitiate the remainder of the instruction. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777 (1981).

12. Lesser included offenses .

Difference between aggravated assault and simple assault lay in the required mental state: intent to prevent in the aggravated assault charge and intent to harm - or doing so knowingly or recklessly - for simple assault. Because the requisite mental element was different for each charge, simple assault was not a lesser included element of aggravated assault as charged, and omitting an instruction on simple assault was not an error. State v. Myers, 190 Vt. 29, 26 A.3d 9 (2011).

Although simple assault by negligently causing bodily injury to another with a deadly weapon is a lesser included offense of aggravated assault with a deadly weapon, defendant was not entitled to an instruction on simple assault. Defendant drew a knife on an unarmed man at close range and aimed it at several vital areas. State v. Russell, 189 Vt. 632, 22 A.3d 455 (mem.) (2011).

Because the only difference in the offenses of aggravated assault and simple assault involves whether a deadly weapon was used, where there was no evidence in the case of an assault without a deadly weapon, the trial judge properly held that the jury could not convict defendant of simple assault without convicting him of aggravated assault, and, in these circumstances, the lesser-included offense instruction was inappropriate. State v. Russo, 177 Vt. 394, 864 A.2d 655 (October 8, 2004).

Defendant charged with aggravated assault failed in his request that the trial court charge simple assault under the provision of this section that "[a] person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury" because the aggravated assault statute, 13 V.S.A. § 1024, does not contain this element; accordingly, the court properly held that defendant was not entitled to a lesser-included offense instruction. State v. Russo, 177 Vt. 394, 864 A.2d 655 (October 8, 2004).

Cited. State v. Peters, 141 Vt. 341, 450 A.2d 332 (1982); State v. Cyr, 141 Vt. 355, 449 A.2d 926 (1982); State v. Darling, 141 Vt. 358, 449 A.2d 928 (1982); State v. Cross, 142 Vt. 44, 451 A.2d 1149 (1982); State v. Lamb, 142 Vt. 87, 453 A.2d 78 (1982); In re Berrio, 145 Vt. 6, 481 A.2d 1057 (1984); State v. Paquette, 146 Vt. 1, 497 A.2d 358 (1985); State v. Ramsay, 146 Vt. 70, 499 A.2d 15 (1985); State v. Couture, 146 Vt. 268, 502 A.2d 846 (1985); State v. Fuller, 146 Vt. 364, 503 A.2d 550 (1985); State v. Hoadley, 147 Vt. 49, 512 A.2d 879 (1986); State v. Bushey, 147 Vt. 140, 513 A.2d 1177 (1986); State v. Peters, 147 Vt. 390, 518 A.2d 28 (1986); State v. Cox, 147 Vt. 421, 519 A.2d 1144 (1986); State v. O'Connell, 149 Vt. 114, 540 A.2d 1030 (1987); State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988); State v. Roy, 151 Vt. 17, 557 A.2d 884 (1989); State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989); State v. St. Francis, 151 Vt. 384, 563 A.2d 249 (1989); State v. Perry, 151 Vt. 637, 563 A.2d 1007 (1989); State v. Weller, 152 Vt. 8, 563 A.2d 1318 (1989); State v. Edwards, 153 Vt. 649, 569 A.2d 1075 (mem.) (1989); State v. Elkins, 155 Vt. 9, 580 A.2d 1200 (1990); State v. Wood, 157 Vt. 286, 597 A.2d 312 (1991); State v. Thompson, 158 Vt. 452, 613 A.2d 192 (1992); State v. Bolio, 159 Vt. 250, 617 A.2d 885 (1992); State v. Papazoni, 159 Vt. 578, 622 A.2d 501 (1993); State v. Houle, 162 Vt. 41, 642 A.2d 1178 (1994); State v. Oren, 162 Vt. 331, 647 A.2d 1009 (1994); State v. Swift, 176 Vt. 299, 844 A.2d 802 (2004).

1. Elements.

One of criminal law's most basic principles is that a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result; a person's criminal liability for an act should be proportioned to his or her moral culpability for that act. To remain distinct from the related misdemeanor, felony aggravated assault with a deadly weapon requires greater culpability than reckless conduct. State v. Bourn, 192 Vt. 270, 58 A.3d 236 (2012).

Conviction for aggravated assault with a deadly weapon requires that the actor subjectively intend to threaten another person with a deadly weapon; accordingly, the accused is entitled to assert appropriate defenses that rebut the State's arguments on this point. Because the jury charge at defendant's trial was not consistent with this holding, he was entitled to a new trial on these counts. State v. Bourn, 192 Vt. 270, 58 A.3d 236 (2012).

Aggravated assault with a deadly weapon is a specific-intent crime. State v. Bourn, 192 Vt. 270, 58 A.3d 236 (2012).

Trial counsel was ineffective when she failed to obtain expert testimony to refute the most important - and weakest - element in the State's case: whether petitioner fired his gun at the complaining witness. Because intent to injure was the central element to a charge of aggravated assault, the issue of shot direction was vital to the State's case; counsel actually bolstered the State's case by eliciting damaging testimony from a State's witness, and she hamstrung petitioner's case by lacking rebuttal evidence to support the contention that directionality could not be determined based on a muzzle flash. In re Russo, 187 Vt. 367, 991 A.2d 1073 (2010).

Intent to injure is the central element to a charge of aggravated assault under 13 V.S.A. § 1024(a)(2). In re Russo, 187 Vt. 367, 991 A.2d 1073 (2010).

Jury is not required to find a probability of death resulting in order for it to conclude that a defendant's conduct manifested extreme indifference to value of human life, thereby satisfying intent requirement of subsec. (a)(1) of this section. State v. Joseph, 157 Vt. 651, 597 A.2d 805 (mem.) (1991).

An act can create the requisite "substantial risk of death" without causing permanent physical damage; choking is a good example of such an act. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

In prosecution for aggravated assault in which "substantial risk of death" is sought to be proved, expert medical testimony is not required to prove a victim is in substantial danger of death when medical expert testifies victim was choked to the point of passing out. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

Motion for acquittal at trial for aggravated assault was properly denied, based on testimony that defendant repeatedly forced adopted stepdaughter's head into bucket of water, that victim was unable to breathe, that defendant choked her and that she lost consciousness and vomited blood. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

At trial for aggravated assault, state bore the burden of proving specific intent, a necessary element of the crime, beyond a reasonable doubt. State v. Kennison, 149 Vt. 643, 546 A.2d 190 (1987), cert. denied, 486 U.S. 1011, 108 S. Ct. 1743, 100 L. Ed. 2d 206 (1988).

Evidence that defendant attempted to discharge pistol justified conclusion that he possessed the specific intent required to cause serious bodily injury. State v. Pratt, 147 Vt. 116, 513 A.2d 606 (1986).

Trial court erred in denying motion for acquittal of defendant charged with aggravated assault based on an alleged intent to prevent a game warden from performing a lawful duty by causing him physical injury in violation of subdiv. (a)(4) of this section, where the record indicated that the game warden's lawful authority to remain on the defendant's premises for purposes of investigating a complaint, in the absence of a search warrant, had terminated, and that the defendant had requested that he leave the premises, and, therefore, the warden was not performing a lawful duty when he received his injury. State v. Martel, 142 Vt. 210, 453 A.2d 1112 (1982).

Aggravated assault is a specific intent crime and state must show defendant acted with conscious object of causing the serious bodily injury required by this section or that he acted under circumstances where he was practically certain his conduct would cause serious bodily injury. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

In carrying burden of showing defendant tried for aggravated assault had the requisite specific intent, state is aided by the general rule that the jury may find from all the evidence that a person ordinarily intends the natural and probable consequences of his voluntary acts, knowingly done. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

In light of testimony that defendant charged with aggravated assault repeatedly struck victim and strangled her for three to four minutes, and that impairing her trachea for that amount of time was life-threatening, and in view of the gross disparity in size between the two, jury could reasonably have concluded defendant had the requisite specific intent. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

This section, making it aggravated assault if a person "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon," makes the mental element of either purpose or knowledge a necessary element of the offense, and the concept of purpose and knowledge corresponds to the common law concept of specific intent, both concepts importing a conscious intent or design to act as charged. State v. D'Amico, 136 Vt. 153, 385 A.2d 1082 (1978).

It was the legislature's intent, in enacting this section, making it aggravated assault if a person "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon," to proscribe an act which included as an essential mental element that the act be done purposefully or knowingly, and evidence of voluntary intoxication may be introduced to negate such mental element. State v. D'Amico, 136 Vt. 153, 385 A.2d 1082 (1978).

2. Deadly weapons.

For a weapon to be considered "deadly" under subdiv. (a)(2) of this section, that weapon need not inflict serious bodily injury. State v. Turner, 175 Vt. 595, 830 A.2d 122 (mem.) (2003).

If the State fails to introduce the weapon used in an 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. State v. Turner, 175 Vt. 595, 830 A.2d 122 (mem.) (2003).

Numchuks, a martial arts weapon, constitutes a deadly weapon for purposes of this section. State v. Lupien, 143 Vt. 378, 466 A.2d 1172 (1983).

3. Resisting arrest.

Arrest is not an element of aggravated assault; a defendant can be found guilty of aggravated assault under subsec. (a)(4) regardless of whether an arrest was actually accomplished. State v. Turgeon, 165 Vt. 28, 676 A.2d 339 (1996).

4. Defenses.

Defendant's mens rea is not properly considered along with his possible justification for defending himself. State v. Trombley, 174 Vt. 459, 807 A.2d 400 (mem.) (2002).

Defense of diminished capacity due to intoxication was not available to assault defendant charged with recklessly causing serious bodily injury to another under circumstances manifesting extreme indifference to value of human life, in violation of subdiv. (a)(1) of this section. State v. Allen, 169 Vt. 615, 738 A.2d 113 (mem.) (1999).

In prosecution under this section, making it aggravated assault if a person attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon, instruction that voluntary intoxication was not a defense was error, and the error so affected the substantial rights of appellant that it would be noticed on appeal despite lack of proper objection below. State v. D'Amico, 136 Vt. 153, 385 A.2d 1082 (1978).

5. Strangulation.

Defendant's choking of victim constituted serious bodily injury under provision of this section defining aggravated assault as the causing of serious bodily injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to value of human life. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

Whether evidence in aggravated assault prosecution established that there was a substantial risk of death when victim was choked was a question of fact for the jury, and with the introduction of contradictory evidence it was the exclusive province of the jury as the fact-finder to resolve the conflict and decide whom and what to believe. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

Jury trying defendant for aggravated assault could have reasonably concluded that choking of victim for three or four minutes placed victim under a substantial risk of death. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

6. Admissibility of evidence.

In aggravated assault prosecution, question to victim's uncle as to what his concern was upon seeing victim after assault, and answer that "the way she was would make you sick to your stomach," was admissible as relevant to the seriousness of the injuries, the force necessary to cause them and defendant's claim of self-defense; and there was no prejudice where answer was a verbal characterization of other evidence consisting of pictures shown jury, taken shortly after the assault, and admitted into evidence. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

One threatened by harm from another is justified in using reasonable force to repel the aggressor and in determining whether reasonable force was used jury may be allowed to view the injuries or lack thereof sustained by one claiming self-defense as compared to those sustained by the alleged aggressor; and picture of defendant charged with aggravated assault, taken shortly after his arrest and showing noticeable differences in hair, facial hair and clothing between the picture and defendant at trial, was admissible on issue of self-defense claimed by defendant. State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979).

7. Sufficiency of evidence.

Evidence that defendant threatened to use a 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 was sufficient for a jury to 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. State v. Turner, 175 Vt. 595, 830 A.2d 122 (mem.) (2003).

Evidence was sufficient to support defendant's conviction of aggravated assault, where defendant repeatedly expressed his intent to kill anyone who interfered with his control of his infant daughter, he confronted officers with a loaded rifle, and he choked officer to the point that officer could not breathe and his vision began to fade. State v. Petruccelli, 170 Vt. 51, 743 A.2d 1062 (1999).

Evidence was sufficient for jury to reasonably find that assault victim's injuries, as well as his increased risk of glaucoma, constituted "serious bodily injury," and therefore defendant's motion for judgment of acquittal was properly denied. State v. Allen, 169 Vt. 615, 738 A.2d 113 (mem.) (1999).

Where evidence at trial for aggravated assault was that defendant, in attempting to flee from arrest, struck officer in head with such force that officer was knocked unconscious for seven or eight minutes, and that defendant then piled heavy wooden pallets on top of officer while she was unconscious, a reasonable jury could have concluded that defendant's conduct manifested extreme indifference to the value of human life, in accordance with subsec. (a)(1) of this section. State v. Joseph, 157 Vt. 651, 597 A.2d 805 (mem.) (1991).

Evidence showing that, after heavy drinking, defendant became violent and hit, slapped, and choked his girl friend was sufficient to prove that defendant's actions constituted an attempt to cause serious bodily injury within meaning of subdiv. (a)(1) of this section; testimony of medical expert was not necessary. State v. Sorrell, 152 Vt. 543, 568 A.2d 376 (1989).

8. Inconsistent verdict.

Acquittal of defendant on sexual assault charge did not render his conviction on charge of aggravated assault logically inconsistent, where evidence was sufficient to show defendant submersed victim's head in a bucket of water and choked her in an attempt to silence her about actions he had good reason to believe constituted a sexual offense. State v. Carpenter, 155 Vt. 59, 580 A.2d 497 (1990).

9. Jury instruction.

In its charge on aggravated assault with a deadly weapon, the trial court did not err in declining to instruct the jury that "threaten" meant "to express one's intent to harm or kill someone." As the trial court explained, there was a danger that including the definition proffered by defendant would confuse the jury as to the element of intent. State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

As a whole, the instructions on aggravated assault with a deadly weapon and attempted simple assault by physical menace breathed the true spirit and doctrine of the law. The instructions, while referring to defendant's "secret intent," also provided detail about the intent elements for both offenses; even though the trial court did not use the words "specific intent," the instructions adequately explained the required subjective moral culpability by stating that the jury was required to find defendant actually intended to threaten police officers. State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

While in a portion of its spoken instruction concerning the intent element of the aggravated assault charge, the trial court improperly required the State to prove that defendant placed another person in fear of imminent bodily injury, rather than focusing the jury on the effect of defendant's words or deeds on a reasonable person in similar circumstances, any error was harmless in the context of the overall instruction and given the record in this case. Nothing in the trial court's instruction suggested that the determination of whether a communication conveyed such an intent was a subjective one that turned on the victim's perception. State v. Gagne, 202 Vt. 255, 148 A.3d 986 (2016).

Evidence here did not support an instruction on self-defense or defense-of-others, either as provided by statute for purposes of the aggravated assault charge or under the common law, and the trial court did not commit plain error by failing to sua sponte instruct the jury on these defenses. Defendant did not admit the elements of the charged crimes but claimed innocence, the failure to request the instructions was likely trial strategy, and the record did not support a finding that defendant believed that he and another person were in immediate danger of unlawful bodily harm. State v. Buckley, 202 Vt. 371, 149 A.3d 928 (2016).

Although the jury instructions on aggravated assault did not include an exact reference to specific "subjective" intent, there was no plain error. They still made clear that there could be no conviction without proof that defendant's message was to threaten injury to another, and that it was the State's burden to prove defendant communicated an intent to injure. State v. Cahill, 194 Vt. 335, 80 A.3d 52 (2013).

In its charge on aggravated assault, the trial court eliminated the State's burden of proving that defendant specifically intended to drug the two named girls when it instructed the jury that "[t]he State is not required to prove, but may prove, that the defendant intended that a specific person be harmed in this manner." Because defendant admitted at trial that he deliberately gave "stupefying drugs" to his wife, the instruction virtually assured that the jury would find him guilty of aggravated assault, which was constitutional error requiring a new trial. State v. Kolibas, 191 Vt. 474, 48 A.3d 610 (2012).

"Injury," for the purposes of the aggravated assault statute, meant "physical pain, illness or any impairment of physical condition." When asked if he suffered any physical pain from the kick, the officer in question testified that "[t]here was some discomfort, yes"; while "discomfort" and "pain" were not strictly synonymous, the officer's testimony was sufficient to support defendant's conviction on this charge beyond a reasonable doubt. State v. Myers, 190 Vt. 29, 26 A.3d 9 (2011).

Even if the omission of a diminished capacity instruction based on intoxication was an error, it was not prejudicial. Defendant never raised the issue of his intent with regard to the aggravated assault charges against him. State v. Myers, 190 Vt. 29, 26 A.3d 9 (2011).

Because defendant was charged with only "purposely" causing serious bodily injury, the trial court's instruction on the mens rea of "knowingly" was erroneous. State v. Trombley, 174 Vt. 459, 807 A.2d 400 (mem.) (2002).

The trial court's inclusion of "knowingly" in jury instructions was harmless error because defendant's own assertion of self-defense established that he acted with the purpose of inflicting serious bodily injury on the victim. State v. Trombley, 174 Vt. 459, 807 A.2d 400 (mem.) (2002).

The trial court's instructions were a correct statement of the law and did not mislead the jury where they started with the charge against defendant of knocking the victim's teeth out in an altercation and then discussed how the aggressor in a conflict could claim self-defense when met with deadly force; the instructions focused on the relevant time frame and made it clear to the jury that if they found defendant was not acting reasonably during the altercation, as opposed to during his earlier pursuit of the victim, then he was not acting lawfully in self-defense. State v. Trombley, 174 Vt. 459, 807 A.2d 400 (mem.) (2002).

Defendant was incorrect in claiming that the jury should have been given an instruction that he had to intend the crime of aggravated assault to be convicted under 13 V.S.A. § 1024; the statute has three theories of criminal liability for aggravated assault and one of those theories is based on recklessness but does not require intent; the jury instructions mirror the words of the statute and the instructions are valid. State v. LaClair, 161 Vt. 585, 635 A.2d 1202 (mem.) (1993).

10. Lesser included offenses .

Difference between aggravated assault and simple assault lay in the required mental state: intent to prevent in the aggravated assault charge and intent to harm - or doing so knowingly or recklessly - for simple assault. Because the requisite mental element was different for each charge, simple assault was not a lesser included element of aggravated assault as charged, and omitting an instruction on simple assault was not an error. State v. Myers, 190 Vt. 29, 26 A.3d 9 (2011).

Although simple assault by negligently causing bodily injury to another with a deadly weapon is a lesser included offense of aggravated assault with a deadly weapon, defendant was not entitled to an instruction on simple assault. Defendant drew a knife on an unarmed man at close range and aimed it at several vital areas. State v. Russell, 189 Vt. 632, 22 A.3d 455 (mem.) (2011).

Because the only difference in the offenses of aggravated assault and simple assault involves whether a deadly weapon was used, where there was no evidence in the case of an assault without a deadly weapon, the trial judge properly held that the jury could not convict defendant of simple assault without convicting him of aggravated assault, and, in these circumstances, the lesser-included offense instruction was inappropriate. State v. Russo, 177 Vt. 394, 864 A.2d 655 (October 8, 2004).

Defendant charged with aggravated assault failed in his request that the trial court charge simple assault under the provision of 13 V.S.A. §§ 1023(a)(1) that "[a] person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury" because this section does not contain this element; accordingly, the court properly held that defendant was not entitled to a lesser-included offense instruction. State v. Russo, 177 Vt. 394, 864 A.2d 655 (October 8, 2004).

Defendant charged with aggravated assault was not entitled to a lesser-included offense instruction on reckless endangerment because that offense is not composed of elements from the offense of aggravated assault. State v. Russo, 177 Vt. 394, 864 A.2d 655 (October 8, 2004).

11. Restitution.

Defendant, who pleaded guilty to aggravated assault, was convicted of a completed crime of which an "attempt" was an element with respect to the extent of the harm, and there was no dispute that defendant's actions caused physical injury to the victim. Thus, there was no merit to defendant's argument that his plea to attempting to cause serious bodily injury could not serve as a basis for restitution. State v. Thomas, 189 Vt. 106, 14 A.3d 961 (2010).

12. Motion for judgment of acquittal.

Trial court properly denied defendant's motion for a judgment of acquittal of aggravated assault with a deadly weapon. The State presented testimony that defendant attacked the victim with a knife. State v. Russell, 189 Vt. 632, 22 A.3d 455 (mem.) (2011).

13. Specific intent.

There was sufficient evidence that defendant had the specific intent required to prove aggravated assault with a deadly weapon and attempted simple assault by physical menace. While some facts could support a finding that defendant harbored an intent to harm himself at certain times during the incident, the circumstantial evidence, particularly the fact that defendant was angrily running down the hall toward 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 State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

With regard to an aggravated assault conviction, the evidence that defendant armed himself with a .45 pistol, stood 25 yards away from and pointed his gun at a farmhand, and then fired into the woods for emphasis was sufficient to show that he had the specific intent to threaten. His motive to publicize his cause was not inconsistent with, and did not negate, an intent to threaten the farmhand with the pistol to achieve that end. State v. Cahill, 194 Vt. 335, 80 A.3d 52 (2013).

14. Double jeopardy.

Defendant's convictions for aggravated assault with a deadly weapon and attempted simple assault by physical menace violated the Double Jeopardy Clause of the Fifth Amendment, as the simple assault was a lesser included offense of the aggravated assault charge. State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

As charged, litigated, and instructed, the aggravated assault charge and the reckless endangerment charge each required an element of proof not required for the other charge and thus there was no double jeopardy violation in convicting defendant of both crimes. Although the reckless endangerment charge and the aggravated assault charge both related to defendant's pointing a gun at the complainants, an essential element of the reckless endangerment charge was that the firearm defendant pointed was operable and capable of causing death or serious bodily injury, while the trial court instructed the jury that the aggravated assault charge required proof that defendant intended to threaten another. State v. Gagne, 202 Vt. 255, 148 A.3d 986 (2016).

Cited. State v. LaPlante, 141 Vt. 405, 449 A.2d 955 (1982); State v. Williams, 143 Vt. 396, 467 A.2d 667 (1983); In re Pernicka, 144 Vt. 319, 478 A.2d 224 (1984); In re Berrio, 145 Vt. 6, 481 A.2d 1057 (1984); In re Stevens, 146 Vt. 6, 497 A.2d 744 (1985); State v. Covell, 146 Vt. 338, 503 A.2d 542 (1985); In re Pernicka, 147 Vt. 180, 513 A.2d 616 (1986); State v. Galvin, 147 Vt. 215, 514 A.2d 705 (1986); State v. Forbes, 147 Vt. 612, 523 A.2d 1232 (1987); State v. Dennis, 151 Vt. 223, 559 A.2d 670 (1989); State v. St. Francis, 151 Vt. 384, 563 A.2d 249 (1989); State v. Perry, 151 Vt. 637, 563 A.2d 1007 (1989); State v. Gabert, 152 Vt. 83, 564 A.2d 1356 (1989); State v. Saari, 152 Vt. 510, 568 A.2d 344 (1989); Corey v. District Court of Vermont, Unit No. 1, 917 F.2d 88 (2d Cir. 1990); State v. Jenne, 156 Vt. 283, 591 A.2d 85 (1991); State v. Bolio, 159 Vt. 250, 617 A.2d 885 (1992); State v. Karov, 170 Vt. 650, 756 A.2d 1236 (mem.) (2000); State v. Pitts, 174 Vt. 21, 800 A.2d 481 (2002); State v. Stevens, 175 Vt. 503, 825 A.2d 8 (mem.) (2003).

1. Construction.

One of criminal law's most basic principles is that a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result; a person's criminal liability for an act should be proportioned to his or her moral culpability for that act. To remain distinct from the related misdemeanor, felony aggravated assault with a deadly weapon requires greater culpability than reckless conduct. State v. Bourn, 192 Vt. 270, 58 A.3d 236 (2012).

Amendment to this section adding the phrase "whether or not the firearm actually was loaded" did not do away with the requirement that the State demonstrate that a gun involved in a violation of the statute was operable. State v. Messier, 178 Vt. 412, 885 A.2d 1193 (August 19, 2005).

2. Constitutionality.

Unlawful-act manslaughter predicated on reckless endangerment was not unconstitutionally vague when applied to facts of case because recognition of duty to disclose material defects to buyers predated sale of defendant's home and evidence indicated, and jury found, that defendant's failure to warn buyers of driveway heater's dangerous condition amounted to reckless endangerment because defendant knew that the heater was not repaired when he sold the home. State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995).

Although supreme court could not specify every set of facts which constitute reckless conduct, the recklessness standard on which involuntary manslaughter is predicated is sufficiently precise to prevent it from being arbitrarily applied; scope of conduct which may be deemed reckless is sufficiently narrowed by the requirement that the risk, when objectively viewed, amounts to a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995).

3. Arrest without warrant for loitering.

On question of charge of breach of peace by respondent who resisted officer arresting him without warrant, regardless of whether loitering of respondent shown did or did not amount to technical breach of peace, inasmuch as this section was passed as preventive measure and amounts to legislative declaration that loitering on streets endangers peace and tranquility of community, arrest was lawful under rule permitting officer in certain circumstances to interfere to prevent breach of peace. State v. Jasmin, 105 Vt. 531, 168 A. 545 (1933).

4. Danger.

In enacting this section, the legislature intended to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger. State v. Emilo, 146 Vt. 277, 501 A.2d 1188 (1985).

In a prosecution under this section, whether the victim was placed in an objective state of danger is an issue of fact. State v. Emilo, 146 Vt. 277, 501 A.2d 1188 (1985).

In a prosecution under this section, whether a firearm was unloaded or was otherwise inoperative is an essential issue in determining whether the victim was placed in an objective state of danger of death or serious bodily harm. State v. Emilo, 146 Vt. 277, 501 A.2d 1188 (1985).

In prosecution under this section, there was no error as a matter of law in a finding that police officer was placed in an objective state of danger by being threatened with a loaded but uncocked single action revolver, even though the gun had to be manually cocked before the trigger would operate. State v. Emilo, 146 Vt. 277, 501 A.2d 1188 (1985).

5. Particular cases.

Defendant was not entitled to acquittal of reckless endangerment and unlawful mischief, as there was sufficient evidence that he threw a pry bar at a truck when the driver testified that he saw a man in the road holding a large object, which shattered his windshield, there was a divot in the snow where an object apparently bounced off the windshield, police found a pry bar with a broken orange handle inside the home where defendant worked, and the windshield contained orange fragments. State v. Redmond, - Vt. - , 234 A.3d 958 (May 15, 2020).

As charged, litigated, and instructed, the aggravated assault charge and the reckless endangerment charge each required an element of proof not required for the other charge and thus there was no double jeopardy violation in convicting defendant of both crimes. Although the reckless endangerment charge and the aggravated assault charge both related to defendant's pointing a gun at the complainants, an essential element of the reckless endangerment charge was that the firearm defendant pointed was operable and capable of causing death or serious bodily injury, while the trial court instructed the jury that the aggravated assault charge required proof that defendant intended to threaten another. State v. Gagne, 202 Vt. 255, 148 A.3d 986 (2016).

Information charging defendant with reckless endangerment was sufficient. The language of the information was drawn from the statute and was sufficient on its face to inform defendant of the crime in question; the two accompanying affidavits clearly described defendant's reckless operation of his truck, including its impact with the complaining witness's home and the resulting damage, and the fact that the truck struck the room of the complaining witness's daughter; and defendant made no showing that the perceived lack of clarity in the information prejudiced his defense. State v. Myers, 190 Vt. 29, 26 A.3d 9 (2011).

Defendant failed in his argument that the district court erred in denying his motion for acquittal from the crime of reckless endangerment based on the insufficiency of evidence of the gun's operability, where there was testimony and a demonstration regarding the gun's pump action, shells were found in defendant's vehicle, the gun itself was entered into evidence and available for the jury's inspection, defendant adduced no evidence that the gun was not operable, and the gun was not a rusty antique; further, the State was not required to undertake ballistics or other laboratory testing in order to meet its burden on operability. State v. Messier, 178 Vt. 412, 885 A.2d 1193 (August 19, 2005).

Where trial court in reckless endangerment proceeding instructed jury that whether rifle allegedly used by defendant was loaded or not was of no importance, instruction was erroneous since legislature, when it enacted this section, intended to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger, and consequently, decision in State v. Cushman (1974) 133 Vt. 121, 329 A.2d 648 would be overruled. State v. McLaren, 135 Vt. 291, 376 A.2d 34 (1977).

6. Lesser included offense.

Defendant charged with aggravated assault was not entitled to a lesser-included offense instruction on reckless endangerment because that offense is not composed of elements from the offense of aggravated assault. State v. Russo, 177 Vt. 394, 864 A.2d 655 (October 8, 2004).

Reckless endangerment is not a lesser-included offense of common law manslaughter since the unlawful act necessary to sustain a conviction for manslaughter could be reckless or negligent, and, therefore, the offense of reckless endangerment has an element not necessarily included in the offense of manslaughter. State v. Forbes, 147 Vt. 612, 523 A.2d 1232 (1987).

7. Instructions.

Jury instructions on reckless endangerment were insufficient because they did not inform the jury that reckless endangerment required proof that a firearm was operable. State v. Longley, 182 Vt. 452, 939 A.2d 1028 (Oct. 12, 2007).

Where defendant was charged with reckless endangerment for "aiming his car at a Vermont State Police cruiser" and the jury specifically asked whether the State had to prove that defendant aimed his car at a state police cruiser and additionally restated the question: "in other words - is 'aiming' a part of the [crime]," the trial court erred in instructing that "[a]iming the car is not an essential element of the charge of reckless endangerment" because a reasonable juror would not have understood from the court's response that the State had to prove that defendant aimed his car at the cruiser. State v. Brown, 179 Vt. 22, 890 A.2d 79 (August 26, 2005).

Although involuntary manslaughter defendant argued that instruction defining recklessness was flawed because it incorporated both the criminal negligence and recklessness standards but did not distinguish between the two, contrary to defendant's suggestion, both recklessness and criminal negligence require an objective view of risk; the difference is one of degree. State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995).

The court properly instructed the jury to objectively assess the risk and to determine whether involuntary manslaughter defendant consciously disregarded that risk; for further clarification, it referred the jury to the reckless endangerment instruction, which expressly required a finding that defendant actually knew from the circumstances then existing that the heater had not properly been repaired. State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995).

If there was any flaw in jury instruction in involuntary manslaughter prosecution, it stemmed from the court's use of the term "reasonable-person" instead of "law-abiding person" when describing the standard for objectively assessing the nature of the risk; this does not amount to plain error. State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995).

Where, under provision of this section relating to pointing a gun at or in the direction of another, state alleged defendant pointed a gun at a state trooper and gave evidence that defendant pointed gun in trooper's direction and judge charged the jury that it need only find the weapon was aimed in the general direction of the trooper, the instruction was not such a material variance between allegation and proof as to be reversible error. State v. Cushman, 133 Vt. 121, 329 A.2d 648 (1974), overruled on other grounds, State v. McLaren (1977) 135 Vt. 291, 376 A.2d 34.

8. Evidence.

Where defendant was twice tried for recklessly engaging in conduct placing others in danger of death or serious bodily harm, both trials arose out of same set of circumstances but the alleged conduct differed in each, and he was acquitted of first charge, admittance of references to first charge in second trial, against objections, was improper and prejudicial error, requiring reversal where other prejudicial errors occurred. State v. Kerwin, 133 Vt. 391, 340 A.2d 45 (1975).

Cited. State v. Pike, 143 Vt. 283, 465 A.2d 1348 (1983); In re Stevens, 146 Vt. 6, 497 A.2d 744 (1985); State v. Pratt, 147 Vt. 116, 513 A.2d 606 (1986); State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986); State v. Weller, 152 Vt. 8, 563 A.2d 1318 (1989).

1. Constitutionality.

Statutory text of the portion of the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting treats brief outbursts of speech - the content of which may merely be objectionable to the sensibilities of some (or all) of those assembled - the same as prolonged, voluminous speech that, for example, drowns out the primary speaker, preventing audience members from hearing the speaker. If the court were to apply this statute according to its terms, it would criminalize heckling, interrupting, harsh questioning, booing, and all manner of speech that has been tolerated pursuant to the rights accorded to the peoples of free societies; thus, the statute, as worded, impermissibly sanctions a substantial amount of protected speech even when considered in relation to its legitimate scope. State v. Colby, 185 Vt. 464, 972 A.2d 197 (2009).

Central constitutional tension presented by the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting arises from a clash of two fundamental First Amendment rights - freedom of speech and freedom of assembly. In construing the statute, the court must ensure that neither fundamental right is unnecessarily sacrificed for the sake of the other. State v. Colby, 185 Vt. 464, 972 A.2d 197 (2009).

To show that a defendant violated the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting, the State must prove that a defendant's conduct - and not the content of the activity's expression - substantially impaired the effective conduct of a meeting. Narrowing the reach of the statute in such a fashion strikes the proper balance between the two fundamental rights implicated by the statute, freedom of speech and freedom of assembly. State v. Colby, 185 Vt. 464, 972 A.2d 197 (2009).

Assuming that a reasonable police officer could have interpreted the disorderly conduct statute to cover plaintiff's statement at a roadblock, such an officer nonetheless could not have believed that such an interpretation was constitutionally valid. A reasonable officer would have understood that arresting plaintiff merely for uttering an expletive violated plaintiff's clearly established right to free speech, and in turn, his right not to be arrested without probable cause. Based on such evidence, defendant did not act in good faith and was not entitled to official immunity. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048 (1997).

In light of the action of the Legislature in amending paragraph (3) to conform to the language of the Model Penal Code, and the intent of the Model Code drafters to limit the reach of the "abusive language" provision to "fighting words," paragraph (3) is properly construed as proscribing only "fighting words." Prosecution under that provision is thus appropriate only when a defendant's spoken words, when directed to another person in a public place, with the explicit intent to cause public inconvenience, or annoyance or recklessly create a risk thereof, tend to incite an immediate breach of the peace. State v. Read, 165 Vt. 141, 680 A.2d 944 (1996).

As applied to defendant who yelled, kicked and attempted to bite a police officer during her arrest, this section is not unconstitutionally vague, since it is sufficiently clear to inform a person of reasonable intelligence that the kind of conduct engaged in by defendant is prohibited. State v. Begins, 147 Vt. 45, 509 A.2d 1007 (1986).

Provision of this section relating to vehicular or pedestrian traffic is neither unconstitutionally vague nor unconstitutionally over broad. Arbeitman v. District Court of Vermont, 522 F.2d 1031 (2d Cir. 1975).

2. Obstruction.

Term "obstructs," as it appears in statute, must be presumed to have ordinary meaning of the word, and, in charge to jury, definition of word as found in both Webster's Seventh New Collegiate Dictionary and Black's Law Dictionary was not error. State v. Arbeitman, 131 Vt. 596, 313 A.2d 17 (1973).

To constitute a violation of this section, the obstruction must be physical, a result of the body or objects, for ideas or words, even if offensive, abusive, or distasteful, are not enough. State v. Arbeitman, 131 Vt. 596, 313 A.2d 17 (1973).

3. Elements.

The verb "engage" is defined as "to employ or involve oneself; to take part in; to embark on." Thus, to prove disorderly conduct, the State does not need to prove that the defendant started the fight, but only that he was part of it. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

Fact finder, in determining whether a defendant's conduct substantially impairs the effective conduct of a meeting, must assess the actual impact of that misconduct on the course of the meeting; naturally, what amounts to a substantial disturbance in one setting may not in another, and the fact finder must take this into account, and may not base its decision on mere assertions of those present that they were "disturbed." The standard is an objective one: the fact finder may not consider the subjective effect of the content of a defendant's expressive conduct on those assembled, but must instead evaluate it in terms of timing, duration or intensity. State v. Colby, 185 Vt. 464, 972 A.2d 197 (2009).

Substantial impairment of the effective conduct of a meeting includes conduct that causes a lawful meeting to terminate prematurely. A defendant's conduct amounts to a substantial impairment of a meeting where the defendant makes numerous and sustained efforts to disrupt a meeting after being asked to desist. State v. Colby, 185 Vt. 464, 972 A.2d 197 (2009).

Paragraph (3) (disorderly conduct for "abusive language") does not except from its reach those incidents in which the victims are police officers, for the following reasons: (1) the fact that police officers are trained to deal calmly and authoritatively with disorderly persons does not guarantee that police officers are immune from reacting instinctively in the face of an abusive tirade; and (2) a police officer is rightly expected to act in accordance with his or her training or disciplinary rules, but to fashion from this expectation a judicial rule that relieves a person from the reach of a criminal statute solely because the victim is a police officer is to invite the use of abusive language toward police officers. State v. Read, 165 Vt. 141, 680 A.2d 944 (1996).

In the case of defendant convicted of disorderly conduct state did not fail to prove the elements of the offense since the violent outburst which gave rise to the charge constituted tumultuous behavior and the sheriff's office where the tumultuous behavior occurred was a public place. State v. Lund, 144 Vt. 171, 475 A.2d 1055 (1984), overruled on other grounds, State v. Dumont (1985) 146 Vt. 252, 499 A.2d 787, State v. Begins (1987) 148 Vt. 186, 531 A.2d 595.

4. Public place.

Under the disorderly conduct statute, it is not necessary that a defendant voluntarily be present in a public place, but rather that a defendant voluntarily engage in violent, tumultuous, or threatening behavior while in a public place; that is to say, it is the defendant's behavior and not her condition that is prohibited. Thus, the fact that defendant was taken to a hospital emergency room involuntarily did not mean that she could not be convicted of disorderly conduct for her behavior there. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

Where legally sufficient violent, tumultuous, or threatening behavior in an arguably less public place, such as a sheriff's office or police station, may support a conviction for disorderly conduct, then the same behavior within a hospital must also permit conviction for disorderly conduct. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

Where defendant was convicted of disorderly conduct arising out of her actions after she had been stopped by police at an intersection in downtown Burlington, after she was placed in a police cruiser she was still in a public place for purposes of this section. State v. Begins, 147 Vt. 45, 509 A.2d 1007 (1986).

5. Evidence.

There was insufficient evidence that defendant, who was charged with disorderly conduct, engaged in fighting or in violent, tumultuous, or threatening behavior by walking directly toward an officer and coming within four feet of him, as such behavior did not show fighting, violent, or tumultuous behavior, and defendant's actions were too ambiguous to indicate a threat. State v. McEachin, 210 Vt. 259, 213 A.3d 1094 (2019).

Where jury heard testimony that defendant was warned not to obstruct pedestrian traffic, and that he thereafter placed his back against a heavily-used door in order to prevent its use, jury had sufficient grounds for finding the requisite intent to cause public inconvenience or annoyance. State v. Arbeitman, 131 Vt. 596, 313 A.2d 17 (1973).

6. Particular conduct.

Since defendant's leaving of Ku Klux Klan flyers at the homes of two women constituted speech and not nonspeech behavior, it did not fall within the disorderly conduct statute. Further, even if the statute could be violated by pure speech, the conduct did not convey an imminent threat of harm, as the flyer was a recruitment solicitation with no explicit statement of threat. State v. Schenk, 207 Vt. 423, 190 A.3d 820 (May 4, 2018).

With regard to defendant's disorderly conduct conviction, testimony that defendant repeatedly punched the complainant's brother fairly and reasonably supported the conclusion that defendant engaged in fighting behavior. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

In a probation revocation proceeding, there was no support for the State's position that defendant's "mouthy and obnoxious" conduct toward his landlord could have given rise to a charge of disorderly conduct. State v. Sanville, 189 Vt. 626, 22 A.3d 450 (2011).

Defendants' actions did not substantially impair the effective conduct of a commencement ceremony when a speech was interrupted for less than thirty seconds by defendants' remarks; one defendant was in the process of leaving the ceremony voluntarily when he was apprehended; and both defendants left the site of the ceremony upon being asked and without further incident. Such de minimis disturbances, even if rude and out of place in the context of a commencement ceremony, could not serve as the basis for criminal liability without running afoul of the First Amendment. State v. Colby, 185 Vt. 464, 972 A.2d 197 (2009).

Where it was shown that defendant directed extremely vulgar and personally offensive insults at the victim and hurled several items around the room in a fit of anger, and that her behavior alarmed other patrons of the food shelf to the point where they felt compelled to leave, the evidence was sufficient to support a finding that an average person, in these circumstances, could have felt provoked to a violent reaction, and was sufficient to convict her, based on a jury verdict, of disorderly conduct. State v. Allcock, 177 Vt. 467, 857 A.2d 287 (mem.) (June 9, 2004).

Defendant's act of grabbing police officer's flashlight during a pat-down search on a public roadway could create a risk of public annoyance or inconvenience. State v. Cole, 150 Vt. 453, 554 A.2d 253 (1988).

Defendant's act of grabbing a police officer's flashlight during a pat-down search could be found to be threatening behavior, done to communicate intent to harm. State v. Cole, 150 Vt. 453, 554 A.2d 253 (1988).

Where trial court found that when defendant was stopped for driving while under the influence of intoxicating liquor, she yelled and screamed, kicked and resisted arrest and had to be restrained with ankle cuffs, handcuffs, and a seatbelt, and attempted to bite one of the police officers, the conduct justified the court's finding of violent behavior as contemplated by subdiv. (1) of this section. State v. Begins, 147 Vt. 45, 509 A.2d 1007 (1986).

Where defendant, while passing two people on a sidewalk, struck one of them on the arm, leaving a red mark, defendant's actions were violent within the meaning of subdiv. (1) of this section. State v. O'Connell, 147 Vt. 60, 510 A.2d 167 (1986).

There was sufficient competent evidence upon each element of crime of engaging in tumultuous and threatening behavior with intent to cause public inconvenience or annoyance to support conviction where defendant, while standing on steps of store, six feet from constable, after being asked by constable to throw beer can away and clear the steps, a request which had come from the store owners, uttered an ethnic slur and with clenched fists threatened the constable, and followed constable into the store and repeated the slur and challenged the constable to step outside behind the store and settle the matter. State v. Pickett, 137 Vt. 336, 403 A.2d 272 (1979).

7. Police officer immunity.

Although 12 V.S.A. § 5602 does protect state employees from suit by providing that under certain circumstances "the exclusive right of action shall lie against the state of Vermont," the statute explicitly does not apply "to gross negligence or willful misconduct." Defendant should have known that his arrest of plaintiff for uttering an expletive to defendant at a roadblock was unlawful. A jury could, therefore, have found that his decision to arrest plaintiff amounted to gross negligence or willful misconduct. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048 (1997).

To prevail on his claim of intentional infliction of emotional distress, plaintiff had to demonstrate that defendant police officer's conduct in arresting plaintiff for disorderly conduct was outrageous, that he acted intentionally or with reckless disregard of the probability of causing emotional distress, and that defendant's outrageous conduct was the actual or proximate cause of plaintiff's extreme emotional distress. Accepting plaintiff's evidence as true, defendant's arrest of plaintiff for statement made at roadblock was without legal justification. This was sufficient evidence for the case to go to a jury. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048 (1997).

8. Information.

In an information charging defendant with engaging in "violent, threatening language and behavior," the use of "and" did not disadvantage the defendant, and the surplusage did not amount to plain error. State v. Nichols, 167 Vt. 566, 702 A.2d 77 (mem.) (1997).

9. Jury instructions.

In a prosecution of defendant for disorderly conduct, alleging that defendant "with intent to cause public inconvenience and annoyance, obstructed vehicular traffic," it was error for the trial court to charge the jury to consider whether defendant was "practically certain" that her actions would cause public annoyance or inconvenience. State v. Jackowski, 181 Vt. 73, 915 A.2d 767 (November 22, 2006).

In a prosecution of defendant for disorderly conduct, where the trial judge essentially instructed the jury that it could presume defendant intended to cause public annoyance or inconvenience if it found that defendant knew that such annoyance or inconvenience would occur, the instruction may have led the jury to ignore any evidence of defendant's intent and to convict solely based on her knowledge. Because intent was the only contested issue at trial, the effect of the erroneous instruction was analogous to a directed verdict for the State, and in light of defendant's right to a jury trial, such an error could not be harmless. State v. Jackowski, 181 Vt. 73, 915 A.2d 767 (November 22, 2006).

10. Threats.

With regard to the disorderly conduct statute, violent or threatening behavior means physical force or physical conduct that is immediately likely to produce the use of such force; speech can be introduced to explain or provide context for physical conduct. State v. Schenk, 207 Vt. 423, 190 A.3d 820 (May 4, 2018).

Speech can be relevant to explain whether threatening behavior has occurred under the disorderly conduct statute but only where the behavior is physical conduct and not speech. For example, a person using one hand to punch the other hand is more likely to be engaging in threatening behavior if the physical activity is accompanied by threatening statements than if not. State v. Schenk, 207 Vt. 423, 190 A.3d 820 (May 4, 2018).

Where the alleged threatening activity under the disorderly conduct statute includes speech, a subjective standard that judges whether defendant engaged in threatening behavior based on the reaction of particular persons can interfere with First Amendment protections. Thus, the standard must be objective and turn on how a reasonable person would view defendant's behavior. State v. Albarelli, 189 Vt. 293, 19 A.3d 130 (2011).

State did not present sufficient evidence to sustain a conviction for disorderly conduct based on threatening. Defendant did not target a specific individual when he approached a voter registration table or issue any overt or implied threats, but simply ranted politically, and his conduct lacked any significant physical component. State v. Albarelli, 189 Vt. 293, 19 A.3d 130 (2011).

11. Public inconvenience or annoyance.

In a disorderly conduct case, there was sufficient evidence that defendant recklessly caused the risk of public inconvenience or annoyance when the events of the night took place in a public place, there was a loud, heated exchange of words between defendant and the complainant's group, at least one member of the public was drawn to the incident, members of both groups tried to separate defendant from the complainant's brother, and defendant pursued the complainant's group after both fights were separated. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

Defendant's conduct in a hospital emergency room supported the trial court's conclusion that defendant engaged in criminally tumultuous and violent behavior under the disorderly conduct statute. Defendant had to be "moved along" by police into the hospital; she was loud and disruptive; and after being handcuffed to the bed, she banged it into the wall with such force that it had to be separated from the wall to avoid damage. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

There was no merit to defendant's argument that she could not be convicted of disorderly conduct for her behavior in an emergency room because such behavior was an expected, natural occurrence in a hospital environment rather than a public annoyance. Defendant's decision to add to the existing atmosphere of an emergency room by voluntarily engaging in a loud, obnoxious, and violent course of conduct without reason or medical excuse would itself create a sufficient risk of additional public inconvenience to sustain her conviction under the statute. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

In a disorderly conduct case, the State established that defendant recklessly created a risk of public annoyance. On the basis of officers' testimony that defendant's behavior inside a hospital was largely a continuation of the disruptive and combative conduct in which she had been engaged since her encounter with police began, and her continuing conduct once inside a so-called safe room, the trial court could reasonably infer that defendant was aware of the substantial and unjustifiable risk of public inconvenience or annoyance created by her behavior and thus consciously disregarded it. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

12. Abusive language.

If the "abusive language" provision of the disorderly conduct statute has any continuing force, it is necessarily exceedingly narrow in scope, as the use of foul language and vulgar insults is insufficient, a likelihood of arousing animosity or inflaming anger is insufficient, and the likelihood that the listener will feel an impulse to respond angrily or even forcefully is insufficient. The provision only reaches speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline. State v. Tracy, 200 Vt. 216, 130 A.3d 196 (Aug. 25, 2015).

As the reach of the "abusive language" provision of the disorderly conduct statute was constrained by the contours of the category of "fighting words" as defined by First Amendment jurisprudence, defendant's expression toward his daughter's basketball coach did not fall within the statute. An average person in the coach's position would not reasonably be expected to respond to defendant's harangue with violence when defendant demanded to know why the coach had not allowed the daughter to play, called the coach a "bitch," and used a vulgar four-letter word. State v. Tracy, 200 Vt. 216, 130 A.3d 196 (Aug. 25, 2015).

Reach of the "abusive language" provision of the disorderly conduct statute at this point is so narrow that it is unlikely to apply in any but the most extreme circumstances. State v. Tracy, 200 Vt. 216, 130 A.3d 196 (Aug. 25, 2015).

Cited. State v. Cyr, 141 Vt. 355, 449 A.2d 926 (1982); State v. Spear, 142 Vt. 547, 458 A.2d 1098 (1983); State v. Richards, 144 Vt. 16, 470 A.2d 1187 (1983); State v. Bargo, 147 Vt. 322, 515 A.2d 1071 (1986).

1. Information.

Since this section, prohibiting a number of acts by use of the telephone, lists the acts in the disjunctive, and defendant was charged strictly in the language of this section so that no specific act was alleged, conviction would be reversed for defendant did not know the nature of the accusation and was unable to prepare a defense, and the evidence and jury charge referred to conduct not stated in the complaint. State v. Hastings, 133 Vt. 118, 330 A.2d 87 (1974).

2. Intent.

Both the plain meaning and the legislative history of the telephone harassment statute indicate that the intent element is measured at the time the telephone call is made, rather than at the time the threat was made. State v. Wilcox, 160 Vt. 271, 628 A.2d 924 (1993).

The intent to make a threatening phone call can be inferred from the actions, conduct or words of the defendant. State v. Wilcox, 160 Vt. 271, 628 A.2d 924 (1993).

The intent to make a threatening phone call does not require a finding that the call was made solely to harass or threaten another. State v. Wilcox, 160 Vt. 271, 628 A.2d 924 (1993).

There was insufficient evidence for jury to find intent to make a threatening phone call where defendant had legitimate purpose for making call, tenor of call grew increasingly hostile as it continued, and threatening statement was not made until end of call. State v. Wilcox, 160 Vt. 271, 628 A.2d 924 (1993).

3. Anonymity.

Telephone caller's anonymity depends in part on the listener's nonrecognition of the person engaging in the call, since at the instant of recognition the caller's name or identity, or both, are known. Under any definition, a call cannot be anonymous when its author is known to the listener; it is therefore a necessary condition of anonymity under the statute proscribing disturbing the peace by telephone that the person taking the call does not know the sender. State v. Wyrocki, 191 Vt. 177, 38 A.3d 63 (2012).

Because the victim knew defendant was the caller, even though the caller's phone number registered on the victim's caller ID as "withheld," defendant's calls were not anonymous within the meaning of the statute proscribing disturbing the peace by telephone. The invention of caller ID did not turn what was no violation of the statute in 1967 into a crime today. State v. Wyrocki, 191 Vt. 177, 38 A.3d 63 (2012).

1. Purpose.

By enacting this section, legislature intended to provide increased penalties against anyone who assaults a law enforcement officer in the performance of an official duty, knowing or having good reason to believe that the person is in fact such an officer. State v. Peters, 141 Vt. 341, 450 A.2d 332 (1982).

2. Elements of offense.

Evidence that deputy entered curtilage of defendant's premises in the course of valid investigatory stop supported finding that deputy was assaulted while in performance of his lawful duty. State v. Elkins, 155 Vt. 9, 580 A.2d 1200 (1990).

For purposes of enhanced penalty applicable to simple assault perpetrated on a police officer engaged in the performance of his lawful duty, lawfulness of the officer's duty is to be measured against the scope of his employment and not against the ultimate decision regarding the technical legality under the Fourth Amendment or other law; therefore, the lawfulness of the officer's conduct has relevance to the defenses of provocation and self-defense. State v. Elkins, 155 Vt. 9, 580 A.2d 1200 (1990).

In trial for simple assault on a police officer, evidence that showed defendant was irritated by deputy's presence at defendant's house and use of flashing cruiser lights and deputy's testimony that irate defendant struck him in the eye raised question for jury as to purposefulness of defendant's conduct. State v. Elkins, 155 Vt. 9, 580 A.2d 1200 (1990).

The "lawful duty" standard of this section is intended to prevent police officers from pursuing their own interests or whims under the cloak of official conduct. State v. Collins, 147 Vt. 77, 509 A.2d 1020 (1986).

Since it was well within the scope of police officer's employment to peaceably remove defendant from a place where his behavior had been objectionable and agree to give him a ride home, assault which took place during the ride occurred while the officer was "performing a lawful duty" within the meaning of this section. State v. Collins, 147 Vt. 77, 509 A.2d 1020 (1986).

Defendant was properly found guilty of assaulting a police officer performing a lawful duty, even though the officer had taped defendant's conversation with his attorney, allegedly in violation of federal law, since the officer was not taping at the time of the assault, but was lawfully assisting other police officers. State v. Fuller, 146 Vt. 364, 503 A.2d 550 (1985).

Where the victim of defendant's assault was a deputy sheriff whose certificate of appointment to that office stated that he had attended a 36-hour course in police instruction, defendant could be found guilty under this section, rendering the offense of simple assault a more serious crime carrying greater penalties when committed upon a law enforcement officer performing a lawful duty, since, even though the officer's certificate did not state that he had completed the training course as required by section 311 of Title 24, governing appointment of deputy sheriffs, he was a de facto officer and, therefore, was a law enforcement officer within the meaning of this section, and a party to the action. State v. Mitchell, 142 Vt. 517, 458 A.2d 1089 (1983).

Where defendant was charged with aggravated assault on a police officer with a deadly weapon, the state had the burden of proving beyond a reasonable doubt that defendant either attempted to cause, or purposely or knowingly caused, bodily injury, through the use of a deadly weapon, to a law enforcement officer engaged in the performance of a lawful duty. State v. Lupien, 143 Vt. 378, 466 A.2d 1172 (1983).

In the case of defendant convicted of breaking and entering in the nighttime with intent to commit larceny, where the uncontradicted facts established at trial proved that defendant assisted in the break-in, entered the building with two others and was in the process of pointing out to them where the food they intended to steal was when the police arrived, it was not error for the trial court to deny defendant's motion for judgment of acquittal, notwithstanding the fact that the court stated in its findings of fact that defendant was a "tagalong," since the findings made clear that defendant knowingly and intentionally participated in the crime. State v. Wood, 143 Vt. 408, 465 A.2d 1372 (1983).

This section requires that the simple assault of an officer occur while the officer is performing a lawful duty. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

Under this section, the lawfulness of the officer's duty is to be measured against the scope of his employment and not against the ultimate decision regarding the technical legality of the activities in question. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

3. Defenses.

Intoxication is available as a defense to negate the element of knowledge under this section. State v. Galvin, 147 Vt. 215, 514 A.2d 705 (1986).

In prosecution for assault of a police officer involving provocative conduct by the police, the jury, having been correctly charged on self-defense, was free to decide that the defendant's actions were not reasonable under the circumstances. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

Husband who was prevented by restraining order from being at the home of his estranged wife was not protecting himself from forcible removal from his property when police forcibly removed him from wife's home, he resisted, and blows were struck; and he was properly convicted of unlawful trespass and of recklessly causing bodily injury to a law enforcement officer performing a lawful duty. State v. Foster, 139 Vt. 18, 421 A.2d 1284 (1980).

Where state policeman arrived after defendant and constable who called policeman had verbal dispute, policeman caught up with defendant, who was rapidly walking away from store, policeman asked defendant to accompany him, defendant refused and walked away, officer placed hand on defendant's shoulder, defendant continued to walk and his shirt ripped and he grabbed, shook and pushed officer, and as the two grappled the constable seized defendant from behind, jury could reject claim of self-defense and find defendant guilty of assaulting a police officer performing his duty. State v. Pickett, 137 Vt. 336, 403 A.2d 272 (1979).

Where defendant, tried for assault upon law enforcement officer who had attempted to serve process on defendant in his home, testified that as he walked down hall in his home someone jumped out at him and shoved something toward his face and he put his hands up to block the object and in doing so struck the officer, there was sufficient evidence to necessitate a charge on self-defense, and it was reversible error to refuse to give one. State v. Bartlett, 136 Vt. 142, 385 A.2d 1109 (1978).

4. Instructions.

As a whole, the instructions on aggravated assault with a deadly weapon and attempted simple assault by physical menace breathed the true spirit and doctrine of the law. The instructions, while referring to defendant's "secret intent," also provided detail about the intent elements for both offenses; even though the trial court did not use the words "specific intent," the instructions adequately explained the required subjective moral culpability by stating that the jury was required to find defendant actually intended to threaten police officers. State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

Where jury charge tracked statutory elements of simple assault and simple assault against police officer and added "private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties," defendant did not object to charge, self-defense charge raised issue of knowledge that victim was police officer and evidence was strong that defendant knew that victim was police officer, omission of element of knowledge from charge did not warrant reversal. State v. Roy, 151 Vt. 17, 557 A.2d 884 (1989).

In the case of defendant charged with simple assault on a police officer, trial court's failure to adequately define the element of lawful duty in its jury instructions was not prejudicial to the defendant where the officer had identified himself, his official capacity was admittedly known to the defendant, and the officer had informed the defendant that he was being arrested pursuant to a bench warrant; therefore, as a matter of law the police officer was acting within the scope of his lawful duty. State v. Peters, 141 Vt. 341, 450 A.2d 332 (1982).

On review of a conviction of simple assault against a police officer, the supreme court could not conclude that the trial court's instructions distinguishing between the enhanced crime of assault of a police officer and simple assault under section 1023 of this title so prejudiced the defendant as to deprive him of a right to a fair trial and mandate reversal, where the jury returned a verdict of not guilty on all counts of assault against one of the two officers and a not guilty verdict on the charge of assault and a guilty verdict only on the charge of simple assault against the other officer. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

In prosecution for assault of a police officer, the trial court's instructions, when viewed as a whole, properly instructed the jury on the enhanced crime of assault of a police officer and the crime of simple assault where the court carefully and clearly explained each element of assault of a police officer and correctly distinguished the lesser included offense of simple assault, repeatedly emphasized the need to weigh all the circumstances, both to determine the lawfulness of the police conduct and to determine the reasonableness of the defendant's response, and instructed that section 1023 of this title, governing simple assault, has nothing to do with the status of the individual as a police officer and is without regard to whether the individual was acting in the performance of a lawful duty; the instruction that none of the acts of search and seizure were in themselves unlawful did not remove an essential element of the crime from the jury's consideration where the instructions also clearly were that, if the jury found that "the officer himself committed an assault, or used excessive force in dealing with the defendant prior to striking, then he was not performing a lawful duty and you [the jury] must find the defendant not guilty." State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

In prosecution for assault of a police officer involving provocative conduct by the police, reversal of conviction on the basis of the instructions to the jury was not warranted where the trial judge's characterization of the police as being engaged in acts "not in themselves unlawful" was clearly tied to an explanation of this section and the meaning of lawful duty, and there was no indication that the jury failed to appreciate the distinction between the need to find that the officers were performing their lawful duty before enhanced penalties became operative and the finding that an unlawful search could aggravate a confrontation and lend credence to a claim of self-defense. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230 (1982).

5. Sentence.

Mandatory minimum sentence under this section does not violate separation of powers doctrine by limiting discretion of sentencing court. State v. Saari, 152 Vt. 510, 568 A.2d 344 (1989). (Decided under prior law.)

Mandatory minimum sentence under this section does not violate defendants' rights to allocation. State v. Saari, 152 Vt. 510, 568 A.2d 344 (1989). (Decided under prior law.)

6. Double jeopardy.

Defendant's convictions for aggravated assault with a deadly weapon and attempted simple assault by physical menace violated the Double Jeopardy Clause of the Fifth Amendment, as the simple assault was a lesser included offense of the aggravated assault charge. State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

7. Specific Intent.

There was sufficient evidence that defendant had the specific intent required to prove aggravated assault with a deadly weapon and attempted simple assault by physical menace. While some facts could support a finding that defendant harbored an intent to harm himself at certain times during the incident, the circumstantial evidence, particularly the fact that defendant was angrily running down the hall toward 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. State v. Dow, 202 Vt. 616, 152 A.3d 437 (2016).

Cited. State v. Allen, 139 Vt. 303, 427 A.2d 373 (1981); State v. Lamb, 142 Vt. 87, 453 A.2d 78 (1982); State v. Hoadley, 147 Vt. 49, 512 A.2d 879 (1986); State v. Larose, 150 Vt. 363, 554 A.2d 227 (1988); State v. Dennis, 151 Vt. 223, 559 A.2d 670 (1989); State v. St. Francis, 151 Vt. 384, 563 A.2d 249 (1989); State v. Oren, 162 Vt. 331, 647 A.2d 1009 (1994).

1. Mens rea .

Despite defendant's illiteracy, statutory language required State to prove only that defendant violated abuse prevention order after it was properly served upon him, and State was not required to prove that defendant knew that his conduct would violate order or that he fully understood requirements of order. State v. Crown, 169 Vt. 547, 726 A.2d 493 (mem.) (1999).

The court correctly charged on the mens rea element of the crime of violation of an abuse prevention order. Defendant had the responsibility to read and understand the order and to conform his conduct to it. State v. Mott, 166 Vt. 188, 692 A.2d 360 (1997).

2. Validity of order.

Defendant should have been acquitted of violating an abuse-prevention order issued in New Hampshire because in the absence of evidence that the final order had been served on defendant by proof of mailing it to his last known address in accordance with New Hampshire law, which had not adopted actual notice as a substitute for service of process in abuse cases, the State had not established that the final order was enforceable in Vermont pursuant to the statute governing enforceability of foreign orders. State v. O'Keefe, 209 Vt. 497, 208 A.3d 249 (2019).

This section does not make the validity of an abuse prevention order an element of the offense of violating it; the validity of the order is a legal issue for resolution by the trial court and not by the jury. State v. Mott, 166 Vt. 188, 692 A.2d 360 (1997).

3. Due process.

Service of order on defendant was sufficient to meet requirements of due process, even though he was unable to read terms of order, since service should have put defendant on notice that he needed to know terms of order and comply with them. State v. Crown, 169 Vt. 547, 726 A.2d 493 (mem.) (1999).

4. Predicate conviction.

Jury had to find the predicate conviction beyond a reasonable doubt in order for the court to impose the greater sentence authorized by subsec. (b) of this section. State v. Dunbar, 172 Vt. 557, 772 A.2d 533 (mem.) (2001).

Where defendant pled not guilty to the state's information charging a violation of this section, and was not asked to plead specially on the enhancement question, his silence on that issue must be taken as a denial, not a waiver. State v. Dunbar, 172 Vt. 557, 772 A.2d 533 (mem.) (2001).

Where the state failed to prove defendant's predicate conviction before the jury was discharged, recall of the jury to make such determination was error, and he could be convicted only of the first offense misdemeanor specified in subsec. (a) of this section. State v. Dunbar, 172 Vt. 557, 772 A.2d 533 (mem.) (2001).

5. Instructions .

In the absence of any elaboration, the appropriate definition of "harassment" in a relief-from-abuse order is that used in the stalking statute, which contains an element of threat. Thus, an instruction that allowed a conviction for violating a relief-from-abuse order on the basis of objectively annoying conduct was clearly error; moreover, defendant was significantly prejudiced by the instruction, as the State's case, and the conviction, rested squarely on the overly broad definition of harassment used in the instruction. State v. Waters, 195 Vt. 233, 87 A.3d 512 (2013).

In prosecution of defendant for violating an abuse prevention order, an instruction that the jury could find that he had violated the order if it found that he had "followed or stalked" the victim was not plain error since the instruction defined the terms "following" and "stalk" in much the same way as those terms are defined in the stalking statute and the evidence relating to alternative theories under which a jury could convict was intertwined throughout the trial. State v. Prior, 181 Vt. 564, 917 A.2d 466 (mem.) (January 5, 2007).

In prosecution of defendant for violating an abuse prevention order, an instruction that the jury could find that he had violated the order if it found that he had "followed or stalked" the victim was not plain error since the instruction defined the terms "following" and "stalk" in much the same way as those terms are defined in the stalking statute and the evidence relating to alternative theories under which a jury could convict was intertwined throughout the trial. State v. Prior, 181 Vt. 564, 917 A.2d 466 (mem.) (January 5, 2007).

In a prosecution of defendant for violating an abuse prevention order that prohibited him from stalking, following, or coming within 100 feet of his ex-girlfriend, the trial court did not err in instructing the jury that the legal definition of "following" included placing oneself in physical proximity of another. State v. Malshuk, 177 Vt. 475, 857 A.2d 282 (mem.) (June 9, 2004).

6. Evidence .

Evidence that the vehicle in which defendant was a passenger remained in proximity to his ex-girlfriend's vehicle for several miles, and that defendant threw a beer bottle out the window toward her was sufficient for a reasonable jury to conclude that his conduct constituted following. State v. Malshuk, 177 Vt. 475, 857 A.2d 282 (mem.) (June 9, 2004).

7. Double jeopardy.

Convictions of defendant for attempted felony violation of a relief from abuse order by following or stalking the victim, and contempt for violating his condition of release by coming within 100 feet of the victim or her vehicle, did not violate double jeopardy. State v. Prior, 181 Vt. 564, 917 A.2d 466 (mem.) (January 5, 2007).

8. Sentence.

There was no error in sentencing defendant, who was convicted of violating an abuse-prevention order and of five misdemeanors, to five to fourteen years under the Habitual Offender Act. Defendant's sentence was neither contrary to his plea agreement, nor inconsistent with the minimum authorized by statutes other than the Act, nor beyond the enhanced maximum allowed by the Act. State v. Carpenter, 193 Vt. 484, 70 A.3d 1023 (2013).

1. Other crimes, wrongs, or acts.

In an aggravated domestic assault case, the trial court properly admitted evidence of defendant's prior assaults against the complainant to show the nature of the parties' relationship and explain what might otherwise appear to be incongruous behavior to a jury, such as remaining with an abusive partner and delaying a report of abuse. The evidence was also relevant to address issues of motive and claims of fabrication. State v. Williams, 188 Vt. 405, 9 A.3d 315 (Aug. 20, 2010).

In an aggravated domestic assault case, there was no merit to defendant's claim that the probative value of evidence of his prior assaults against the complainant was substantially outweighed by the danger of unfair prejudice. The evidence was highly probative under the circumstances to explain the dynamic of the parties' relationship and the complainant's conduct both before and after the assault; the evidence did not raise the specter of unfair prejudice that could have resulted from testimony regarding other victims of abuse; and the trial court gave a limiting instruction. State v. Williams, 188 Vt. 405, 9 A.3d 315 (Aug. 20, 2010).

Cited. State v. Swift, 176 Vt. 299, 844 A.2d 802 (2004).

1. Evidence .

Trial court properly denied defendant's motion for judgment of acquittal of domestic assault. During a 911 recording, the complainant identified defendant and stated that she was beaten with his fists; the evidence contained in the 911 recording was supported by the responding officers' testimony and the photographs depicting the complainant's injuries; the evidence was sufficient to establish that by striking the complainant, defendant consciously disregarded a substantial and unjustifiable risk of bodily injury; and the evidence admitted could reasonably convince a jury that the cut above the complainant's eye was a "bodily injury" and that the complainant was a household member. State v. Kelley, 202 Vt. 174, 148 A.3d 191 (2016).

Evidence that defendant struck the victim - even if accidentally - with sufficient force to split her lip was sufficient to convict him of recklessly causing bodily injury to the victim. State v. Harrington, 174 Vt. 584, 816 A.2d 501 (mem.) (2002).

The trial court did not commit prejudicial error by refusing to instruct the jury that defendant's testimony from a relief-from-abuse proceeding concerning the incident could be considered as substantive evidence. State v. Harrington, 174 Vt. 584, 816 A.2d 501 (mem.) (2002).

Evidence showing that the victim, defendant's estranged wife, was working on the roof of a small wooden shed and that defendant drove his truck into the shed at 20-30 miles an hour was sufficient to establish the element of attempt and to support defendant's conviction for domestic assault. State v. Donaghy, 171 Vt. 435, 769 A.2d 10 (2000).

Evidence was sufficient to sustain defendant's conviction for domestic assault, where defendant admitted spanking child, child's bruises were not wholly consistent with a fall, and photographs corroborated State's case. State v. Martin, 170 Vt. 614, 751 A.2d 769 (mem.) (2000).

2. Definition of "bodily injury" .

In prosecution of defendant under 13 V.S.A. § 1042 alleging that he had recklessly caused injury to his son, the State was required to prove bodily injury as defined in 13 V.S.A. § 1021(1), and need not have applied the different and higher standard contained in 15 V.S.A. § 1101(1)(C) and 33 V.S.A. § 4912, pertaining to abuse of children. State v. Baron, 176 Vt. 314, 848 A.2d 275 (2004).

3. Bifurcated trial.

Given the danger of unfair prejudice and the limited relevance of the evidence, bifurcation of a substantive domestic assault offense from an enhancement for violating a condition-of-release order was warranted. The facts supporting the no-harassment court-ordered condition, issued a year before the charged offense, held little probative value or factual connection to the incident that formed the basis of the domestic assault charge presented to the jury; admission of the condition-of-release order was highly prejudicial in that it established for the jury that a court had found it necessary to issue a protective order on behalf of the putative victim against defendant; and given the strong prejudicial nature of the condition-of-release order, the multiple references to it at trial, the noncumulative nature of the evidence, and the fact that the case ultimately came down to a credibility determination between defendant and his ex-girlfriend, the inclusion of the evidence was not harmless. State v. Brillon, 187 Vt. 444, 995 A.2d 557 (2010).

4. Civil rights.

Where an arrestee was arrested for domestic assault, the arrestee's supervisory and municipal liability claims failed because, inter alia, cases alleging constitutional violations were filed or decided after the alleged events; the town was entitled to municipal immunity with respect to the arrestee's state law negligence claim. Kucera v. Tkac, - F. Supp. 2d - (D. Vt. Apr. 8, 2013).

5. Jury Instructions.

Trial court did not commit plain error in instructing the jury on domestic assault as a lesser included offense of first-degree aggravated domestic assault because while adding a sentence about strangulation as an example of serious bodily injury was unwise and potentially confusing, the State did not have to charge and did not charge that strangulation occurred, the State did not charge this as a strangulation case and the trial court instructed the jury that it had to find one of the alternative definitions of serious bodily harm, and the mental elements of first-degree aggravated domestic assault and domestic assault were different even under defendant's theory of what occurred. State v. Carter, 204 Vt. 383, 169 A.3d 225 (May 5, 2017).

Cited. State v. Swift, 176 Vt. 299, 844 A.2d 802 (2004).

1. Probable cause.

The facts known to the officer at the time defendant's arrest was made were sufficient, for purposes of the felony escape statute, to support an arrest for the commission of a felony, despite the officer's erroneous labelling of the charges as misdemeanors. The facts set forth in the charging affidavit were obtained from a sworn statement of defendant's girlfriend, who stated that defendant placed a loaded pistol to her head and threatened to shoot her. This fact, in conjunction with other information, provided sufficient probable cause to support an arrest for aggravated domestic assault under 13 V.S.A. § 1043(a)(2), a felony. State v. Powell, 167 Vt. 294, 707 A.2d 272 (mem.) (1997).

Defendant's assault on his wife in direct violation of a temporary relief from abuse order, several earlier incidents of physical assault and harassment, and restraining her against her will and threatening her life with a loaded handgun supported felony charges of aggravated domestic assault and first degree unlawful restraint and also revocation of bail. State v. Plant, 165 Vt. 617, 686 A.2d 941 (mem.) (1996).

2. Evidence.

There was sufficient evidence that defendant meant to threaten the six-year-old victim when the evidence showed that the victim was bothering defendant while he worked and that he took the box cutter, held it close to her stomach, and said something to the effect that he was going to kill her that night while she was asleep. State v. Kuzawski, 206 Vt. 351, 181 A.3d 62 (Dec. 15, 2017).

Acquittal of a charge against defendant of aggravated assault was properly denied because it was supported by a past recollection recorded statement by the claimant, as well as a 911 telephone call, observations by the responding officer, and photographs of the complainant's injuries. State v. Spaulding, 197 Vt. 378, 103 A.3d 487 (Aug. 8, 2014).

In a prosecution for aggravated domestic assault, the trial court did not err in denying defendant's motion for judgment of acquittal on the basis that there was insufficient evidence that the knife used in the assault was a deadly weapon, even though the knife itself was not entered in evidence, and the State instead relied entirely on the victim's testimony to prove this element of the crime. State v. Prior, 174 Vt. 49, 804 A.2d 770 (2002).

3. Operability of firearm.

Firearm employed in a threat against a family or household member need not be shown to be operable or loaded to constitute a deadly weapon; in the context of first-degree aggravated domestic assault, it is entirely irrelevant if a rifle brandished to punctuate a threat was loaded and able to fire when the threat was made, because this crime does not require an imminent threat. Consequently, a firearm did not have to be proven to be loaded and operable, immediately or otherwise, to constitute a deadly weapon in a prosecution for first-degree aggravated domestic assault, and the trial court did not err by omitting such a requirement in its instructions to the jury. State v. Longley, 182 Vt. 452, 939 A.2d 1028 (Oct. 12, 2007).

4. Jury Instructions.

Trial court's instruction on first-degree aggravated assault tracked the language of the statute and contained definitions for both recklessness and willfulness, gave the jury the diminished capacity instruction requested by defendant, and explicitly instructed the jurors to consider whether defendant's intoxication negated his ability to form willful intent. Further, because the instructions were clear that the jury was only to consider diminished capacity with willful intent and because there was nothing restricting recklessness to be considered in the alternative, the jury was necessarily unanimous on the intent element. State v. Peatman, 207 Vt. 97, 185 A.3d 1257 (2018).

Trial court did not commit plain error in instructing the jury on domestic assault as a lesser included offense of first-degree aggravated domestic assault because while adding a sentence about strangulation as an example of serious bodily injury was unwise and potentially confusing, the State did not have to charge and did not charge that strangulation occurred, the State did not charge this as a strangulation case and the trial court instructed the jury that it had to find one of the alternative definitions of serious bodily harm, and the mental elements of first-degree aggravated domestic assault and domestic assault were different even under defendant's theory of what occurred. State v. Carter, 204 Vt. 383, 169 A.3d 225 (May 5, 2017).

5. Deadly weapon.

Because an object can be found to be a deadly weapon if it is objectively capable of causing harm, the box cutter here, which defendant was using to cut boxes and which thus could be understood to have sharp edges and to be capable of producing death or serious injury despite its unusual design, was a deadly weapon for purposes of conviction under the domestic assault statute. State v. Kuzawski, 206 Vt. 351, 181 A.3d 62 (Dec. 15, 2017).

Cited. State v. Sanders, 168 Vt. 60, 716 A.2d 11 (1998); State v. Karov, 170 Vt. 650, 756 A.2d 1236 (mem.) (2000); State v. King, 179 Vt. 400, 897 A.2d 543 (February 24, 2006).

1. Construction.

In a post-conviction relief proceeding, defendant, by his plea of guilty, waived the argument that the trial court should not have convicted him of second degree aggravated domestic assault because he did not have a prior conviction for domestic assault; however, because he should not have been convicted of violating subdiv. (a)(2) of this section, the case was remanded for further proceedings on his claim that he received ineffective assistance of counsel. In re Andres, 177 Vt. 511, 857 A.2d 803 (mem.) (August 6, 2004); In re Torres, 177 Vt. 507, 861 A.2d 1055 (mem.) (August 6, 2004).

Trial court's decision that a single act which violated both subdivisions (a)(1) and (a)(2) of this section could be punished as separate crimes violated defendant's right against double jeopardy; legislature did not intend to authorize separate sentences when domestic assault occurs under two separate aggravating circumstances. State v. Ritter, 167 Vt. 632, 714 A.2d 624 (mem.) (1998).

2. Instructions.

In a prosecution for second-degree aggravated domestic assault, where defendant assaulted complainant a short time after she had moved out of the apartment she shared with him for six months prior to the assault, because, under 15 V.S.A. § 1101(2), two persons are "household members" if they either lived together or had a sexual relationship at any time prior to the assault, such evidence showed that complainant and defendant satisfied both of these alternative requirements; thus, the question of whether defendant and complainant were household members was not something that a rational jury could reasonably doubt and, accordingly, defendant was not entitled to an instruction on the lesser included offense of simple assault. State v. Swift, 176 Vt. 299, 844 A.2d 802 (2004).

In a prosecution for second-degree aggravated domestic assault, judge's instruction to the effect that the law does not recognize the fact of remaining in or returning to an apparently abusive relationship as evidence to question the witness' credibility was not fair to defendant because the State had not presented any evidence on battered women's syndrome to support the theory that the instruction articulated, and, even if the State had presented such evidence, the instruction was incorrect on the law regarding the proper role of the jury in such cases. State v. Swift, 176 Vt. 299, 844 A.2d 802 (2004).

3. Bifurcated trial.

Given the danger of unfair prejudice and the limited relevance of the evidence, bifurcation of a substantive domestic assault offense from an enhancement for violating a condition-of-release order was warranted. The facts supporting the no-harassment court-ordered condition, issued a year before the charged offense, held little probative value or factual connection to the incident that formed the basis of the domestic assault charge presented to the jury; admission of the condition-of-release order was highly prejudicial in that it established for the jury that a court had found it necessary to issue a protective order on behalf of the putative victim against defendant; and given the strong prejudicial nature of the condition-of-release order, the multiple references to it at trial, the noncumulative nature of the evidence, and the fact that the case ultimately came down to a credibility determination between defendant and his ex-girlfriend, the inclusion of the evidence was not harmless. State v. Brillon, 187 Vt. 444, 995 A.2d 557 (2010).

1. Particular cases.

There is no basis in the stalking statute to require that the perpetrator's act and the victim's fear be contemporaneous. Thus, because the victim stated that she was fearful after learning that petitioner had been caught peeping through her bedroom window, it was error to vacate his aggravated stalking conviction. In re Hoch, 194 Vt. 575, 82 A.3d 1167 (2013).

In a stalking case, there was no merit to defendant's argument that the complainant's testimony at trial regarding her fear of defendant was not credible because it contradicted her statements to the police and her testimony at the motion to dismiss hearing. Through cross-examination, defendant demonstrated the alleged inconsistencies in the complainant's reports to the police, her testimony at the pretrial hearing, and her testimony at trial; it was up to the jury to decide whether the complainant's testimony regarding her fear of defendant was credible. State v. Hinchliffe, 186 Vt. 487, 987 A.2d 988 (Nov. 6, 2009).

In prosecution of defendant for violating an abuse prevention order, an instruction that the jury could find that he had violated the order if it found that he had "followed or stalked" the victim was not plain error since the instruction defined the terms "following" and "stalk" in much the same way as those terms are defined in the stalking statute and the evidence relating to alternative theories under which a jury could convict was intertwined throughout the trial. State v. Prior, 181 Vt. 564, 917 A.2d 466 (mem.) (January 5, 2007).

Defendant failed in his argument that a post-conviction amendment to Vermont's stalking statute mandated that he receive a new trial because, aside from defendant's mere assertion that clarifying amendments are procedural per se, this suggested exception to the statutory provision on the retroactive effect of statutory amendments is unsupported by statutes or case law and the court declined to adopt it. State v. Van Aelstyn, 181 Vt. 274, 917 A.2d 471 (January 12, 2007), cert. denied, 128 S. Ct. 68, 2007 U.S. LEXIS 10280, 169 L. Ed. 2d 17 (U.S. 2007).

2. Unlawful restraint.

Given the nature and purpose of the stalking law, the definitions of the crimes of unlawful restraint apply to the stalking law. State v. Ellis, 186 Vt. 232, 979 A.2d 1023 (2009).

3. Elements.

Stalking statute employs an objective standard by defining harassing behavior as conduct which would cause a reasonable person to fear bodily injury. Although the statute requires the jury to view a defendant's conduct from the perspective of a reasonable person, the victim's knowledge of the defendant is relevant to the question of whether the defendant's actions would have caused a reasonable person to fear bodily injury; other states that have an objective standard in their stalking statute agree that this inquiry is measured by examining whether a reasonable person in the victim's circumstances would be afraid. State v. Hinchliffe, 186 Vt. 487, 987 A.2d 988 (Nov. 6, 2009).

Courts in stalking cases have admitted evidence of a defendant's prior relationship with and conduct towards a victim to show that a victim's fear is reasonable. In addition, a victim's knowledge of a defendant's conduct towards a third party may be relevant to whether it is reasonable for the victim to fear the defendant. State v. Hinchliffe, 186 Vt. 487, 987 A.2d 988 (Nov. 6, 2009).

As defined by the Legislature, the elements of the crime of stalking do not require that the defendant have threatened violent behavior or unlawful restraint in the past, or that the victim feared for her safety or that she would be restrained. Threats are commonly present in stalking situations, and aid the State's case if present, but their absence is not fatal to a stalking prosecution; similarly, the victim's fear may be helpful to the State, if present, but the critical element of the crime is defined solely in objective terms - whether a "reasonable person" would fear "unlawful restraint" - and the absence of the victim's fear is not determinative. State v. Ellis, 186 Vt. 232, 979 A.2d 1023 (2009).

4. Generally.

In the absence of any elaboration, the appropriate definition of "harassment" in a relief-from-abuse order is that used in the stalking statute, which contains an element of threat. Thus, an instruction that allowed a conviction for violating a relief-from-abuse order on the basis of objectively annoying conduct was clearly error; moreover, defendant was significantly prejudiced by the instruction, as the State's case, and the conviction, rested squarely on the overly broad definition of harassment used in the instruction. State v. Waters, 195 Vt. 233, 87 A.3d 512 (2013).

Cited. State v. Premo, 168 Vt. 600, 719 A.2d 398 (mem.) (1998); State v. Malshuk, 177 Vt. 475, 857 A.2d 282 (mem.) (June 9, 2004).

1. Evidence.

Obsessive behavior, without threats or attempted acts of violence, could cause a reasonable person to fear unlawful restraint, but here, defendant's actions did not rise to a level that would cause a reasonable person to have such fear, requiring the reversal of his stalking conviction. Almost all the interaction between defendant and the victim, who were high school students, occurred at school in public areas or at school-related public activities; there was no evidence that defendant tried to get the victim alone in a private setting; the victim did not testify that she feared unlawful restraint or bodily injury from defendant; the period in which defendant was on clear notice that his contact was unwanted was very short in relation to the cases where stalking had been found; there was almost no attempt to enlist the assistance of third parties; and defendant's behavior was often more awkward than deliberate. State v. Ellis, 186 Vt. 232, 979 A.2d 1023 (2009).

2. Constitutionality.

2015 version of the criminal stalking statute was facially constitutional. "True threats" are not constitutionally protected, and the expression potentially targeted by the statute's definition of "harassing" consisted primarily, if not completely, of true threats; moreover, the statute's application to only those threats that reasonably cause substantial emotional distress did not offend the First Amendment. State v. Noll, 208 Vt. 474, 199 A.3d 1054 (2018).

2015 version of the criminal stalking statute did not violate the First Amendment as applied to defendant. A trier of fact could find that, in the context of defendant's overall course of conduct as well as the specific context of the book he disseminated near the complainant's workplace, the statement in the book "Shoot the terrorist? Or shoot the 'artist?' Neither are present" would cause a reasonable person to fear unlawful violence. State v. Noll, 208 Vt. 474, 199 A.3d 1054 (2018).

3. Limitations period.

Jury instruction for defendant's criminal stalking charge was improper because in spite of defendant's objection, the instruction explained that the jury could convict if it determined that defendant engaged in a course of conduct requiring at least two acts that met the elements of the statute. It did not instruct that at least one of the two acts that constituted part of the course of conduct needed to occur within the applicable limitations period, which allowed the jury to convict based entirely on two acts that occurred outside the limitations period. State v. Noll, 208 Vt. 474, 199 A.3d 1054 (2018).

Chargeable course of conduct under the 2015 criminal stalking statute could include acts outside the limitations period, as long as at least one act that met the elements of the criminal stalking statute occurred within three years prior to the date the defendant was charged. State v. Noll, 208 Vt. 474, 199 A.3d 1054 (2018).

1. Definition.

Bribery is the receiving or offering any undue reward, by or to any person whomsoever, whose ordinary business or profession relates to the administration of public justice, in order to influence his behavior in office, and to incline him to act contrary to his duty and the known rules of honesty and integrity. State v. Smith, 72 Vt. 366, 48 A. 647 (1900).

2. Acceptance of gift.

Proof that one assumed control of money passed over into his possession as a gift by another, and that one to whom it was so passed over understood at time that he accepted it, and that money had thereby passed from control of such other person into his control, showed an acceptance of the money. State v. Smith, 72 Vt. 366, 48 A. 647 (1900).

3. Evidence.

In connection with evidence tending to show that a bribe was accepted by respondent on a certain day, evidence of negotiations with reference to bribe preliminary thereto and leading up to it was admissible. State v. Smith, 72 Vt. 366, 48 A. 647 (1900).

Law review commentaries

Law review. For note, "A Crisis in Confidence: Municipal Officials Under Fire," see 16 Vt. L. Rev. 579 (1992).

1. Breaking.

"Breaking," which is an essential element of the crime of breaking and entering in the nighttime, implies the use of force, no matter how slight. State v. Cline, 139 Vt. 451, 430 A.2d 455 (1981).

Entering through an already open window is not sufficient to constitute a breaking. State v. Cline, 139 Vt. 451, 430 A.2d 455 (1981).

Where evidence showed that defendant entered building through window but did not establish whether he had to open window to enter, the state's evidence did not establish the prima facie case necessary for finding defendant broke into building within meaning of statute relating to offense of breaking and entering in nighttime. State v. Cline, 139 Vt. 451, 430 A.2d 455 (1981).

Word "break" as used in this section implied use of force. State v. Hart, 119 Vt. 54, 117 A.2d 387 (1955).

Where there was no evidence fairly and reasonably tending to establish element of "breaking" as alleged, respondent's motion for a directed verdict should be granted. State v. Hart, 119 Vt. 54, 117 A.2d 387 (1955).

2. Intent .

There was sufficient evidence that defendant, who was convicted of burglary, had the specific intent to commit larceny. There was evidence that defendant forcibly entered an antique shop's building and rifled through drawers, cupboards, and dressers, although nothing was missing from the shop; furthermore, although defendant presented evidence of his intoxication, it was up to the jury to weigh this evidence and determine whether he had the requisite intent. State v. Langdell, 187 Vt. 576, 989 A.2d 556 (mem.) (2009).

Evidence showing that: defendant told the police that he went to the restaurant to get some money because he was in debt; he broke a rear window to gain entry; he damaged a safe, nearly breaking off the safe's handle, was sufficient to convince a reasonable juror beyond a reasonable doubt that defendant entered the restaurant intending to steal. State v. Ingerson, 176 Vt. 428, 852 A.2d 567 (2004).

Intent to commit a larceny at the time of entry, like other elements of the crime, must be proven beyond a reasonable doubt. State v. Savo, 139 Vt. 644, 433 A.2d 292 (1981).

Term "or other felony" is not a limitation on what precedes, but is inserted to extend scope of section to other offenses not specifically named therein. State v. Demag, 118 Vt. 273, 108 A.2d 390 (1954).

Breaking and entry constituted burglary if done with intent to commit larceny, regardless of whether larceny done or intended was petit larceny or grand larceny, although petit larceny was not a statutory felony. State v. Hodgdon, 89 Vt. 148, 94 A. 301 (1915), same case 89 Vt. 510, 96 A. 4; State v. Keyser, 56 Vt. 622 (1884).

Burglariously entering a dwelling house, with intent to commit adultery, did not constitute an offense within this section. State v. Cooper, 16 Vt. 551 (1844).

3. Time of breaking and entering.

Under this section and § 1202 of this title, it was as much burglary to break and enter in daytime as it was to break and enter in nighttime; the effect of the statute being, not to make two crimes, but to make two grades of same crime. State v. Newell, 93 Vt. 81, 106 A. 561 (1919).

While it was necessary to allege the aggravating circumstances to convict of higher grade of burglary, it was not necessary to allege that offense was committed in daytime to convict of lower grade. State v. Newell, 93 Vt. 81, 106 A. 561 (1919).

4. Places.

A railroad depot was a warehouse within meaning of this section. State v. Bishop, 51 Vt. 287 (1878).

5. Lesser included offenses.

Although elements of entry and knowledge were common to both burglary and criminal trespass statutes, burglary did not require entry into a "dwelling house" and trespass did not require intent to commit a felony or other crime, and therefore trespass was not a lesser included offense of burglary. State v. Crawford, 169 Vt. 371, 737 A.2d 366 (1999).

When a nonresidence is involved, the unlawful trespass statute requires that the normal access to the building be locked, or that certain methods of notice against trespass be employed, and the additional element of proof results in unlawful trespass not being a lesser included offense of burglary. State v. Savo, 139 Vt. 644, 433 A.2d 292 (1981).

Where unlawful trespass was held not to be a lesser included offense of burglary, State v. Nicasio, 136 Vt. 162, 385 A.2d 1096 (1978), was overruled insofar as it intimated that unlawful entry of a locked nonresidence was a lesser included offense of burglary in the nighttime. State v. Savo, 139 Vt. 644, 433 A.2d 292 (1981).

6. Allegation.

The allegation of the ultimate felony intended with respect to a prosecution for breaking and entering with intent to commit a felony need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. State v. Barr, 126 Vt. 112, 223 A.2d 462 (1966).

7. Indictment and information.

In burglary prosecution initially charging entering with intent to commit larceny and unlawful mischief, mid-trial amendment to information deleting allegation of intent to steal alcohol and to damage building was permissible since portion removed was an unnecessary allegation, as state was not required to specify what defendant intended to steal. State v. Verge, 152 Vt. 93, 564 A.2d 1353 (1989).

8. Evidence.

There was sufficient evidence to support the burglary conviction. The evidence, including a project manager's testimony that roofing material was stored inside the unfinished house and that it was unlikely that an employee moved the material, as well as eyewitness testimony that defendant moved the material from a location by the house to a portable toilet before his cousin pulled in to load the materials, supported a finding that defendant had actually entered the structure to remove the materials; furthermore, the unfinished house could constitute an enclosure despite the absence of a roof, windows, and doors. State v. Lampman, 206 Vt. 323, 181 A.3d 54 (Dec. 8, 2017).

In the case of defendant convicted of burglary, where a person whose general description corresponded with that of defendant was in the burglarized building only a few minutes after an alarm signaled that an entry had been made, when that person emerged from the building, he fled into a wooded area near the building, after being ordered to stop by the investigating officer, defendant was discovered lying face down in the woods, partially concealed by leaves and wearing the same clothing worn by the person who had been seen fleeing the building, a lighted flashlight was found close by, and a sneaker print, corresponding to the sole of sneakers worn by defendant was discovered near the building, the evidence, although entirely circumstantial, was sufficiently cogent and persuasive to lift its effect above mere suspicion. State v. Partlow, 143 Vt. 33, 460 A.2d 454 (1983).

Evidence justified jury's finding that defendant was not only present at scene of burglary, with knowledge of companion's criminal objective, but was guilty of participation in its accomplishment by acting as lookout rather than abandoning project as he could have without consequences. State v. Nicasio, 136 Vt. 162, 385 A.2d 1096 (1978), overruled on other grounds, State v. Savo (1981) 139 Vt. 644, 433 A.2d 292.

Where defendant was charged with burglary in the nighttime and the state offered no evidence of the nighttime element of the offense, it was error to deny motion for verdict of acquittal on the ground that the evidence was insufficient to sustain a conviction of the offense charged. State v. Boutin, 134 Vt. 151, 352 A.2d 689 (1976).

Suspicion that accused participated in burglary, however strong, will not take place of evidence supporting accused's participation in burglary. State v. Mecier, 126 Vt. 260, 227 A.2d 298 (1967).

Evidence which only showed that defendant took alleged accomplices to the scene of crime and later picked them up near the scene, and which failed to show that defendant encouraged or incited the burglary or that there was a preconceived plan in which defendant joined to commit the burglary was not sufficient to sustain defendant's conviction as principal in burglary. State v. Mecier, 126 Vt. 260, 227 A.2d 298 (1967).

9. Instructions.

Jury instruction that defines "building or structure" to include enclosures that lack a roof is consistent with the plain language of the burglary statute. State v. Lampman, 206 Vt. 323, 181 A.3d 54 (Dec. 8, 2017).

In instructing the jury that "a building or structure can exist without a roof and without being closed in" the trial court did not relieve the State of its burden of proving beyond a reasonable doubt that the construction project was a "building or structure"; rather, its instructions framed the legal definition of "building or structure" to guide the jury's assessment of whether this element was satisfied, but left the question whether defendant had entered a "building or structure" to the jury. State v. Lampman, 206 Vt. 323, 181 A.3d 54 (Dec. 8, 2017).

Inclusion of "an instruction within an instruction" in a burglary charge is actually a wise practice. Why this is the "better practice" is clear: to determine whether a defendant had the requisite intent to commit a crime, a juror would have to know the elements of that crime; without being aware of the elements of the intended crime, a juror might mistakenly convict a defendant on faulty assumptions about what is criminal and what is not. State v. Langdell, 187 Vt. 576, 989 A.2d 556 (mem.) (2009).

Jury instruction regarding the specific intent element of the burglary charge was not so misleading as to amount to plain error. Because the inclusion of "an instruction within an instruction" in a burglary charge was actually a wise practice, inclusion of the elements of larceny did not amount to plain error, and because the rest of the instruction adequately described every other element of both burglary and larceny, it was hard to believe that a juror would have been confused into thinking that throwing a rock through a door was an element of larceny. State v. Langdell, 187 Vt. 576, 989 A.2d 556 (mem.) (2009).

Where at defendant's trial for aiding in the crime of breaking and entering a dwelling house with intent to commit larceny trial court instructed the jury that "under the law a person is presumed to intend the natural and probable consequences of his acts," the instruction violated defendant's right to due process of law, since it could reasonably be interpreted as requiring a conclusive presumption on the element of intent which shifted the burden of proof on that element to defendant and the court could not discount the possibility that the jurors actually proceeded upon it rather than upon additional instructions which the state claimed corrected the erroneous charge. State v. Martell, 143 Vt. 275, 465 A.2d 1346 (1983), overruled on other grounds by State v. Myers, 190 Vt. 29, 26 A.3d 9 (2011).

Where unlawful trespass was held not to be a lesser included offense of burglary, the trial court erred in giving the lesser included offense instruction. State v. Savo, 139 Vt. 644, 433 A.2d 292 (1981).

Where defendant was charged with burglary in the nighttime and there was no evidence of the nighttime element of the offense, the court, absent a grant of motion for acquittal, which would have been proper, should have placed before the jury only the question of whether there was a burglary in the daytime, and instructions that if the jury could not find defendant guilty of burglary in the nighttime it could find him guilty of burglary in the daytime, without any definition of nighttime and daytime, was error, and reversal was required. State v. Boutin, 134 Vt. 151, 352 A.2d 689 (1976).

10. Enhanced penalties.

Defendant's prior burglary convictions were violent crimes for purposes of federal career offender provision, regardless of fact that burglaries involved "seasonal dwellings" or "summer camps" as opposed to permanent residences. United States v. Fredette, 15 F.3d 272 (2d Cir.), cert. denied, 511 U.S. 1114, 114 S. Ct. 2119, 128 L. Ed. 2d 677 (1994), 511 U.S. 1149, 114 S. Ct. 2180, 128 L. Ed. 2d 899 (1994).

11. Particular cases.

Defendant's restraint of the victims after he entered their home created a danger independent of the risk posed by burglars entering an occupied home intent on theft. Thus, the burglary was a separate offense from kidnapping, and the motion to dismiss the kidnapping charge was properly denied. State v. Jones, 190 Vt. 586, 44 A.3d 148 (2011).

For purposes of enhanced penalty applicable to career criminals under 18 U.S.C. § 924(e)(1), prior conviction of this section constitutes a "violent felony." United States v. Mitchell, 745 F. Supp. 201 (D. Vt. 1990), aff'd, 932 F.2d 1027 (2d Cir. 1991).

Cited. State v. Dusablon, 142 Vt. 95, 453 A.2d 79 (1982); State v. Zehner, 142 Vt. 251, 453 A.2d 1126 (1982); State v. Jarrett, 143 Vt. 191, 465 A.2d 238 (1983); State v. Wilkins, 144 Vt. 22, 473 A.2d 295 (1983); State v. Comes, 144 Vt. 103, 472 A.2d 1253 (1984); In re Kasper, 145 Vt. 117, 483 A.2d 608 (1984); State v. Corliss, 145 Vt. 169, 484 A.2d 924 (1984); State v. Tedesco, 147 Vt. 133, 513 A.2d 1164 (1986), overruled in part, State v. Gallagher (1988) 150 Vt. 341, 554 A.2d 221, cert. denied, 488 U.S. 995, 109 S. Ct. 563, 102 L. Ed. 2d 588 In re Bruyette, 150 Vt. 557, 556 A.2d 568 (1988).

1. Possession of tools by wife.

Under indictment charging husband and wife jointly with having certain burglarious implements and tools in their possession, possession by wife while husband was with her was prima facie innocent, as under coercion of husband, but for possession by her in the absence of husband, though by his direction, she would be responsible. State v. Potter, 42 Vt. 495 (1869).

1. Complaint.

It was essential that complaint allege that abandonment was wilful and that it was done in a manner to cause child unnecessary suffering or to endanger its health. In re Greenough, 116 Vt. 277, 75 A.2d 569 (1950).

2. Construction.

Term "endanger" in the cruelty to children statute refers to a potential or possibility of injury. The term does not refer to conduct that will result or actually results in harm, but rather to conduct that could or might result in harm. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

3. Willfulness.

Willful conduct is, at a minimum, conduct undertaken intentionally and by design, as distinguished from that which is thoughtless or accidental. As a logical matter, to intentionally and designedly - or consciously and purposefully - expose or neglect a child in a manner that endangers that child, a defendant must have some knowledge of those dangerous conditions; thus, it is sufficient that a defendant consciously and purposefully cause a child to be exposed to conditions that she knows endanger his health. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

Evidence supported a finding that defendant's conduct was willful under the cruelty-to-children statute when defendant took her four-year-old son under a bridge in an area littered with glass, feces, and trash adjacent to a brook to which the child had unfettered access, because so intoxicated that she could not supervise him, and engaged in sex without noticing her son's whereabouts. There was no suggestion that defendant accidentally or thoughtlessly took her son to an area she knew to be dangerous. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

4. Particular cases.

In regard to a conviction for cruelty to a child, there was sufficient evidence to establish that the bridge abutment where the child was found was "dangerous and unhealthy." The area contained broken glass, feces, and urine; it was directly adjacent to a brook, access to which was unimpeded by any protective barrier; the child was without a shirt and barefoot; defendant did not notice that her child had wandered away; and even if defendant had been aware of her child's movements in this obviously dangerous area, the trial court concluded she would have been unable to assist him, if needed, because of her inebriation. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

Phrase "in a manner to endanger" can have no meaning independent of the verbs it modifies in the cruelty to children statute, nor can the verbs as used in this statute be understood without reference to the modifying phrase. The proscribed act, then, is not simply neglecting or exposing, but neglecting or exposing in a manner to endanger the child's health or welfare; to trigger criminal liability, the mental state that must accompany this unitary act is willfulness. State v. Amsden, 194 Vt. 128, 75 A.3d 612 (2013).

Cited. In re Pernicka, 144 Vt. 319, 478 A.2d 224 (1984); In re Pernicka, 147 Vt. 180, 513 A.2d 616 (1986); State v. Valley, 153 Vt. 380, 571 A.2d 579 (1989); State v. Searles, 159 Vt. 525, 621 A.2d 1281 (1993).

1. Sentencing.

Upon examination of the statutes for sexual assault and sexual assault of a vulnerable adult, it could not be concluded that the arguably irrational disparity in punishments between them with respect to sexual assault demonstrated a clear legislative intent to allow cumulative punishments under the circumstances of defendant's case, where he had engaged in one incident with the victim. State v. Breed, 198 Vt. 574, 117 A.3d 829 (2015).

1. Evidence.

Trial court properly denied defendant's motion for a judgment of acquittal of exploiting a vulnerable adult, as there was sufficient evidence, including witness testimony about the power of attorney defendant held for his mother and the power of attorney document itself, to create a question for the jury as to whether the power of attorney was validly executed. State v. Davis, 207 Vt. 346, 186 A.3d 1088 (Mar. 23, 2018).

2. Jury instructions.

In a prosecution for exploitation of a vulnerable adult, the trial court's instruction was undoubtedly circular; in effect, the trial court instructed jurors that they could find that defendant acted without legal authority if they found that he did not have legal authority to act. Reversal was not required, however, because the issue was clearly framed for the jury; the jurors could find that defendant was his mother's attorney-in-fact, and had legal authority, if they found the power of attorney's conditions had been met. State v. Davis, 207 Vt. 346, 186 A.3d 1088 (Mar. 23, 2018).

3. Relation to other provisions.

Trial court erred when it equated the finding that defendant's mother was a "vulnerable adult" for purposes of conviction with incompetence for purposes of testimony at sentencing, and therefore admitted a statement by the mother's guardian instead of allowing the mother to testify. The error did not constitute an abuse of discretion in sentencing, however, because the trial court did not rely on the guardian's statement in its final sentencing determination, and the sentence was well below the maximum allowed. State v. Davis, 207 Vt. 346, 186 A.3d 1088 (Mar. 23, 2018).

Age-related impairment in a person's ability to, for example, manage his or her own finances does not foreclose the possibility that the person may still be capable of expressing himself or herself regarding a matter upon which he or she is called to testify. Thus, a person may be found to be a "vulnerable adult" and the victim of a charge of exploiting a vulnerable adult, but still competent to testify according to the Vermont Rules of Evidence and for the purposes of sentencing consideration. State v. Davis, 207 Vt. 346, 186 A.3d 1088 (Mar. 23, 2018).

1. Bail.

When defendant was charged with one count of conspiracy and three counts of knowingly and unlawfully dispensing cocaine by selling crack cocaine, his $100,000 bail was not excessive under the bail statute given the seriousness of the offenses, the weight of the evidence, and defendant's limited ties to Vermont. State v. Peterson, 186 Vt. 655, 980 A.2d 811 (Aug. 11, 2009).

Cited. State v. Preseault, 163 Vt. 39, 652 A.2d 1001 (1994); In re DLC Corp., 167 Vt. 544, 712 A.2d 389 (1998); State v. Maduro, 174 Vt. 302, 816 A.2d 432 (2002).

1. Renunciation not shown.

Defendant's statements did not fall within the renunciation statute because, even by the most generous interpretation, they evidenced a mere change in plans. They did not tend to show that defendant no longer wanted her husband killed, nor did they show that defendant no longer planned to participate in the crime. State v. Wetter, 190 Vt. 476, 35 A.3d 962 (2011).

1. Constitutionality.

This section does not treat similarly situated victims differently; it protects victims and society from crimes that are motivated by hate, whether this hate is directed at minority or majority members of a class, and does not violate federal or state equal protection guarantees. State v. Ladue, 160 Vt. 630, 631 A.2d 236 (mem.) (1993).

Law review commentaries

Law review. For note, "An analysis of the Constitutionality of the Vermont Hate Motivated Crimes Statute in Light of the United States Supreme Court's Decisions in R.A.V. v. City of St. Paul and Wisconsin v. Mitchell ," see 18 Vt. L. Rev. 771 (1994).

1. Constitutionality.

There was no merit to an argument that any civil application of the hate crimes statute was unconstitutional. Rather than imposing a "criminal sanction," the hate crimes statute's relief is equitable in nature and provides protection for persons and property through injunctive relief; it does not necessarily expose a defendant to incarceration or require a heightened burden of proof. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

1. Jurisdiction.

Because there was no judgment on plaintiffs' hate-motivated crimes injunction request during the 2006 trial, there was no judgment to amend. The trial court had jurisdiction to adjudicate a prayer for injunctive relief newly brought and did not abuse its discretion in doing so. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

1. Jurisdiction.

Because there was no judgment on plaintiffs' hate-motivated crimes injunction request during the 2006 trial, there was no judgment to amend. The trial court had jurisdiction to adjudicate a prayer for injunctive relief newly brought and did not abuse its discretion in doing so. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

2. Requirements.

There must be a showing of necessity for an injunction to issue under the hate crimes statute, though nothing in the statute imposes any specific period of limitation between the wrongful conduct and the injunction. The requirement is simply that the court find protection is reasonably necessary when assessing the present circumstances of the complainant; an inference can be made that the two-year limitation on the injunction present in the statute provides an outer limit to the time period in which an injunction must be sought. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

In order to impose a hate crimes injunction, a trial court need find by a preponderance of the evidence: (1) defendant engaged, caused, or attempted to engage in wrongful conduct toward complainant; which caused the complainant damage, loss, or injury, including fear; (2) defendant was maliciously motivated by complainant's protected characteristics; and (3) injunctive relief is reasonably necessary to protect the complainant, the complainant's property, and other appropriate persons - including other members of the complainant's protected class - and their property. The "wrongful conduct" so proscribed need not result in criminal prosecution, as any civil relief can be sought independent of the State's actions; however, the complainant must still prove that it was more likely than not that the defendant committed a crime which both caused the complainant damages and was motivated by discriminatory animus. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

3. Particular cases.

Plaintiffs had not shown the nexus between the harmful acts and prohibited discriminatory animus required for the issuance of a hate crimes injunction. The one reference to any racial bias in all of the testimony at the hearing came when one witness admitted to referring to one plaintiff as a "towel head," but denied that defendant had ever done so; while there was testimony at a 2006 jury trial regarding defendant's discriminatory bias toward plaintiffs, such evidence was not submitted in the present proceeding and was not relied upon by the trial court in granting the injunction. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

Possible imposition of criminal sanctions for violation of a hate-motivated crime injunction or the branding of a defendant as a "hate criminal" without a jury determination did not mandate striking down the hate crimes law or voiding a hate crimes injunction. Violation of any court-ordered injunction can expose a defendant to fines or incarceration for contempt, and such a possibility does not transform the injunction itself into a criminal sanction; likewise, the claimed necessity of a jury trial was without merit in this context, where the relief sought was equitable. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

In issuing a hate crimes injunction in 2009, the trial court erred in relying on the language of an earlier appellate decision in the case to support the finding of a hate-motivated crime. The issue of a hate-motivated crime was not adjudged in the 2006 trial and was neither appealed nor decided by the court; the court's dictum could not take the place of the physical or testimonial evidence required for the imposition of an injunction. Shahi v. Madden, 188 Vt. 142, 5 A.3d 869 (2010).

1. Generally.

Because statistics confirmed that escape from custody in violation of 13 V.S.A. § 1501(a)(1) presented a serious potential risk of injury to another, that offense qualified as a predicate under the residual clause, 18 U.S.C.S. § 924(e)(2)(b)(ii), of the Armed Career Criminal Act, 18 U.S.C.S. § 924(e). United States v. Baker, 665 F.3d 51 (2d Cir. 2012).

Because the U.S. Supreme Court's intervening decision in Chambers might have rendered the district court's reliance upon defendant's escape conviction as an Armed Career Criminal Act predicate erroneous, and because the district court had not had the occasion to consider whether the crimes underlying two of defendant's three sexual assault convictions arose from conduct committed on different occasions, the case was appropriately remanded. United States v. Daye, 571 F.3d 225 (2d Cir. 2009).

Breaking jail by a person lawfully imprisoned therein for any cause whatsoever was a felony at common law and by statute. State v. Shaw, 73 Vt. 149, 50 A. 863 (1901).

2. Arrest for felony.

The facts known to the officer at the time defendant's arrest was made were sufficient, for purposes of the felony escape statute, to support an arrest for the commission of a felony, despite the officer's erroneous labelling of the charges as misdemeanors. The facts set forth in the charging affidavit were obtained from a sworn statement of defendant's girlfriend, who stated that defendant placed a loaded pistol to her head and threatened to shoot her. This fact, in conjunction with other information, provided sufficient probable cause to support an arrest for aggravated domestic assault under 13 V.S.A. § 1043(a)(2), a felony. State v. Powell, 167 Vt. 294, 707 A.2d 272 (mem.) (1997).

3. Custody .

There is no escape absent lawful custody. Lawful custody does not arise until a defendant is brought under a police officer's control through physical restraint, or submits to the officer's authority. A suspect who resists arrest, for example, by fleeing when a police officer tells him to "freeze" is not in "custody" until his liberty is restrained. State v. Turgeon, 165 Vt. 28, 676 A.2d 339 (1996).

4. Defenses.

Neither federal nor state concepts of double jeopardy reach disciplinary action imposed upon inmates for breach of confinement in the course of the administration of a correctional institution; thus, such action constitutes no constitutional barrier to prosecution for crime of escape. State v. Lebo, 129 Vt. 449, 282 A.2d 804 (1971).

In prosecution for escape from prison farm, evidence offered by defendant relating to his administrative segregation and loss of good time credit following his capture and return was properly excluded as against claim it should have been received on double jeopardy issue, because such administrative action is not covered by double jeopardy concepts and there could thus be no double jeopardy. State v. Lebo, 129 Vt. 449, 282 A.2d 804 (1971).

Prisoner confined under sentence for escape from jail in which he had been confined following arrest, who sought, by post-conviction relief, invalidation of his conviction and release on the ground that he was illegally detained at the time he escaped, could not successfully claim that alleged defects in his original apprehension and continued confinement gave rise to a right to escape prior to adjudication of such issues where several new charges were lodged against him prior to his escape, a lawful basis for his restraint for such charges was established, and he was at all times fully informed of his rights, he had counsel, was free to test his confinement by habeas corpus and plead guilty to escape charge. In re Provencher, 127 Vt. 558, 255 A.2d 180 (1969).

Desire for liberty, constraining lawfully confined jail inmate to flee, was not, no matter how strong, a defense to escape from jail charge. In re Provencher, 127 Vt. 558, 255 A.2d 180 (1969).

It was no defense that respondent left jail under orders to work at a certain place, and that, being without a guard, he left that place; for the law had dominion over him as well after he left the jail as before. State v. Wright, 81 Vt. 281, 69 A. 761 (1908).

Nor is it any defense that respondent's desire for liberty constrained him to flee, for, however strong that desire, it was still his duty to submit himself to the restraints of the law. State v. Wright, 81 Vt. 281, 69 A. 761 (1908).

5. Statute of limitations.

Crime of escape under this section is a continuing offense and prosecution is not barred by statute of limitations. State v. Burns, 151 Vt. 621, 564 A.2d 593 (1989).

6. Indictment and information.

Where prisoner escaped from work release, was charged with escape from furlough, and at close of state's evidence moved for acquittal on ground of variance between the proof, which if anything showed escape from work release, and the information, refusal of motion, and allowing state to amend information to charge escape from work release, was not error. State v. Burclaff, 138 Vt. 461, 418 A.2d 38 (1980).

Motion to dismiss complaint on ground that information charged escape from state prison while evidence established escape from prison farm was properly denied where farm was maintained at, an integral part of, and under the supervision of the warden of, the state prison, so that his escape from the prison farm was in fact an escape from prison, and where complaint identified respondent, alleged time and place of escape with sufficient certainty to enable him to prepare a defense, and sufficiently stated facts essential to afford protection against a second conviction for the same offense. State v. Lebo, 129 Vt. 449, 282 A.2d 804 (1971).

Information stating that accused escaped from the Rutland county jail while in lawful custody was not ambiguous and properly set forth the nature and cause of the accusation and left no doubt that it was under subdiv. (b) of this section. State v. Provencher, 128 Vt. 586, 270 A.2d 147 (1970).

7. Prior law.

Breaking from a village lock-up was an offense under V.S. § 5094 which relates to breaking of "a jail or other place in which a person is confined by authority of the state." State v. Dohney, 72 Vt. 260, 47 A. 785 (1899).

It was an offense under the statute against breaking open a jail (Comp. Stat., chap. CVI, § 11, p. 555) for a prisoner confined alone in jail to break it open in order to escape. State v. Fletcher, 32 Vt. 427 (1859).

8. Evidence.

Even though the term "order" was not technically used to describe the document governing defendant's furlough, it was executed in accordance with 28 V.S.A. § 808 by the Commissioner's authority; thus, there was sufficient evidence proving that the conditional reentry form and weekly schedules were an order for purposes of the escape statute. State v. Stanley, 182 Vt. 565, 933 A.2d 184 (mem.) (July 16, 2007).

State met its burden of demonstrating substantial and admissible evidence as to elements of furlough escape, and therefore defendant's motion to dismiss was properly denied. State v. Parker, 170 Vt. 571, 744 A.2d 434 (mem.) (1999).

Where prisoner's furlough record sheet, a log showing who had been released and on what terms, was admitted through desk officer at correctional center, who testified record was regularly prepared and that a number of checks were built into the preparation, and prisoner, tried for escape from work release, failed to adduce any proof throwing suspicion on genuineness of the record, it was not error to admit the record to show prisoner was released pursuant to valid work release order and that he violated that order. State v. Burclaff, 138 Vt. 461, 418 A.2d 38 (1980).

9. Extradition expenses.

The expenses incurred by the Department of Corrections for the extradition of defendant, who pled guilty to escape, did not constitute nontaxable costs of prosecution, as defendant had purposely attempted to evade the law, resulting in pecuniary damages suffered by the State. State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998).

The mere fact that a restitution award for extradition expenses exceeded the maximum fine allowable for escape did not make it improper, because the Legislature did not intend to limit such damages based on the dollar amount in the charge against the defendant. State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998).

Cited. In re Kasper, 145 Vt. 117, 483 A.2d 608 (1984); Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

1. Destructive device.

Except for a "firearm or ammunition therefor" (paragraph (1)), any explosive bomb is a "destructive device" as defined in paragraph (1) of this section and used in 13 V.S.A. § 1604 (possession of destructive device), including a pipebomb made of smokeless gunpowder. State v. Quinn, 165 Vt. 136, 675 A.2d 1336 (1996).

1. Pipebomb made of smokeless gunpowder.

Except for a "firearm or ammunition therefor" (13 V.S.A. § 1603(1)), any explosive bomb is a "destructive device" as defined in 13 V.S.A. § 1603(1) and used in this section, including a pipebomb made of smokeless gunpowder. State v. Quinn, 165 Vt. 136, 675 A.2d 1336 (1996).

1. Construction.

In construing 13 V.S.A. § 1701, the court aims to effect legislative intent, and although penal statutes should be interpreted in a manner most favorable to the accused, they should not be interpreted so strictly as to defeat the legislative purpose in enacting the law; had the legislature intended "injury to the person" to mean only bodily injury it would have used the term bodily or physical injury. State v. Galusha, 164 Vt. 91, 665 A.2d 595 (1995).

2. Purpose.

This section was aimed at blackmailing, and a threat of any public accusation was as much within its reason as one of a formal complaint instituting a criminal prosecution. State v. Louanis, 79 Vt. 463, 65 A. 532 (1907).

3. Threat.

A threat within meaning of this section is a menace of such a nature as to unsettle the mind of person on whom it is intended to operate, and to take from his acts that freedom essential to constitute voluntary consent. State v. Louanis, 79 Vt. 463, 65 A. 532 (1907).

It was proper for court to refuse to charge that threat must be such as to overcome will of an ordinarily prudent man, and to leave it to jury to say whether threat was calculated to disturb and unsettle a man's mind and give anxiety. State v. Louanis, 79 Vt. 463, 65 A. 532 (1907).

4. Evidence.

In prosecution for threatening to accuse a certain man of crime of adultery with a woman named with intent to extort money, it was proper to allow state to show by a third person that, about same time, respondent accused him of that crime with same woman, and threatened him with imprisonment unless he would pay respondent $ 20. State v. Louanis, 79 Vt. 463, 65 A. 532 (1907).

5. Injury.

The "injury to the person" in 13 V.S.A. § 1701, the extortion statute, includes injury other than physical harm, and applied to a defendant who allegedly delivered a letter to a female minor, in which he threatened to disclose a sexually explicit videotape of the defendant and the minor engaged in sexual acts to her parents and custodian unless she agreed to continue their relationship. State v. Galusha, 164 Vt. 91, 665 A.2d 595 (1995).

Cited. State v. Hackett, 141 Vt. 223, 446 A.2d 369 (1982); State v. Carroll, 147 Vt. 108, 513 A.2d 1159 (1986); State v. Ashley, 161 Vt. 65, 632 A.2d 1368 (1993).

1. Evidence.

With regard to a conviction of giving false information to a police officer with intent to deflect, the evidence presented reasonably and fairly supported the jury's conclusion that defendant, by providing the police officers with his first and middle name and an incorrect birth year, intended to deflect their investigation away from himself. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

Court refuses to hold that evidence of a defendant giving a false name alone is never sufficient to sustain a conviction under the false reports statute and, as with all other cases involving circumstantial evidence, the court must look at the record as a whole and determine if it can fairly and reasonably convince a jury of guilt. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

When defendant was charged with felony possession of cocaine, misdemeanor possession of marijuana, and misdemeanor providing false information to an officer, it was proper to allow testimony that he had a handcuff key in his shoe. Possession of a means to escape arrest might be an indication that he had a plan to deflect investigation, a plan that included fleeing possible prosecution; furthermore, possession of the key triggered a reasonable inference that he knew his behavior of possessing illegal substances was illegal and had taken steps to avoid prosecution and punishment. State v. Delaoz, 189 Vt. 385, 22 A.3d 388 (2010).

Trial court properly refused to give a limiting instruction that testimony regarding a handcuff key possessed by defendant was not evidence of possession of drugs or false information to a police officer. The court refused to issue such an instruction because it concluded that the evidence was relevant to the intent element present in all of the charges. State v. Delaoz, 189 Vt. 385, 22 A.3d 388 (2010).

2. Double jeopardy.

Charge of impeding a public officer required proof that defendant committed the unlawful act of giving false information to a police officer implicating his wife. In effect, the impeding charge incorporated the false information charge, making false information a predicate offense to defendant's conviction for impeding, and in such circumstances, a guilty verdict obtained on both the predicate and compounding offense violated the Double Jeopardy Clause. State v. Neisner, 189 Vt. 160, 16 A.3d 597 (2010).

3. Intent.

Under the false reports statute, the prohibition of false speech is directly linked to a defendant's intent to deflect a government investigation, thus preventing government waste. The court does not read the statute to criminalize all false statements to law enforcement agents, regardless of a defendant's intent; rather, the statute prohibits false statements intended to deflect an investigation. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

4. Elements.

To violate the false reports statute, an individual must give false information to a law enforcement officer to achieve his or her conscious objective of directing the investigation away from him or herself. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

Intent to deflect an investigation away from one's self is an essential element of the false reports statute, which the State bears the burden of proving. State v. Albarelli, 203 Vt. 551, 159 A.3d 627 (Nov. 18, 2016).

5. Jury instructions.

New trial on the false information count was required. Neither the charge nor the State's trial evidence identified precisely what information the jury needed to evaluate with respect to this count, and given defendant's multiple statements and the two distinct ways in which a violation of the statute could occur, the Court could not be certain that the jury unanimously agreed that all, or at least one, of defendant's statements met the same statutory elements. State v. Redmond, - Vt. - , 234 A.3d 958 (May 15, 2020).

Cited. State v. Graves, 145 Vt. 271, 487 A.2d 157 (1985).

1. Construction.

The legislature, in enacting this section, used the terms "forges or counterfeits" in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

2. Common law.

Document which was invalid on its face could not sustain charge of forgery at common law. State v. McManus, 78 Vt. 433, 62 A. 1013 (1906).

Making or altering an instrument not named in this section was a misdemeanor at common law, but was not punishable by sentence to state prison. State v. Morton, 27 Vt. 310 (1855).

Severing an endorsement from a note and leaving note entire was not a forgery within meaning of this section, but was nevertheless a misdemeanor at common law, and could be punished by fine and imprisonment. State v. McLeran, 1 Aik. 311 (1826).

3. Instruments subject to forgery.

A memorandum on back or margin of a note made at time of its execution formed part of it and was subject of forgery. State v. Donovan, 75 Vt. 308, 55 A. 611 (1903).

Writing in common form of a receipt was an acquittance within meaning of this section. State v. Shelters, 51 Vt. 102 (1878).

Forged paper must be such that, if genuine, it could injure another, and it must appear from indictment that it was legally of such a character, either from a recital or description of instrument itself, or, if that alone did not show it to be so, then by additional averment of such extrinsic facts as render it of that character. State v. Briggs, 34 Vt. 501 (1861).

In this section words "bond or writing obligatory" were used in their legal sense as meaning bonds binding some obligor to some obligee, and requiring something to be done, which, if not done, could be compensated by an action on bond. State v. Briggs, 34 Vt. 501 (1861).

Request in writing to pay money or other things upon credit of drawer, although to be carried by payee as mere servant of drawer, to drawer, or to be applied to his use was an "order" within meaning of this section. State v. Nevins, 23 Vt. 519 (1851).

4. Indictment.

Information and warrant alleging, in terms of this section, that accused did "forge or counterfeit" were not thereby defective by making statement of offense uncertain, as such terms, though used in the alternative, signify the same thing and act. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

Gist of crime of forgery is intent to defraud, and it was not necessary that information state the name of a particular person or entity which accused intended to defraud. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

That state may have used forged check in prior prosecution of a person for aiding and abetting the forging and cashing of the check by a person not the defendant in the instant case would not deprive state of probable cause to issue an information against defendant charging him with forging the check. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

Allegations of extrinsic facts were necessary only where operation of instrument on rights of another was not apparent from instrument itself. State v. Shelters, 51 Vt. 102 (1878).

There was no duplicity in an indictment in alleging that respondent forged and caused to be forged and aided and assisted in forging -- they being same offense under statute, and in legal contemplation the same act. State v. Shelters, 51 Vt. 102 (1878).

In an indictment for forgery instrument forged must be set forth in haec verba. State v. Morton, 27 Vt. 310 (1855).

5. Evidence.

It is trial court's duty to determine whether or not a writing offered as a standard of a person's handwriting is genuine and admissible, although it is the right and duty of the jury to judge for themselves as to the sufficiency of the proof that the writing is genuine. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

Where state's attorney was not a witness to any of the facts introduced in prosecution for forgery, there was no indication that he could offer any evidence as to defendant's guilt or innocence, and the state's motives in prosecution of prior case in which it was alleged that defendant there aided and abetted the forgery by a person not the instant defendant of the same check involved in the instant case were not material to the cause, and state was not barred from bringing instant case by reason of charging, in prior case, that another person had forged the check, denial of defendant's request to call state's attorney or a witness regarding state's inconsistency as to the forger was not error. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

Where prison warden saw letters purporting to be signed by defendant and sent to warden, and had communicated with defendant regarding them and acted on requests they contained, he was properly permitted to testify, in prosecution for forgery, that in his opinion the letters were in defendant's handwriting, and they were properly received as standards. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

In an indictment against several persons for forgery upon a bank check, evidence tending to prove agreement between respondents to procure money from banks by forged paper, without reference to any particular bank, was admissible. State v. Morton, 27 Vt. 310 (1855).

6. Bail.

After conviction and pending review, forgery is not an offense bailable as a matter of right, within meaning of Vermont constitution, chapter II, § 32. In re Woodmansee, 127 Vt. 575, 255 A.2d 667 (1969).

Cited. In re Kasper, 145 Vt. 117, 483 A.2d 608 (1984).

1. Construction.

The legislature, in enacting this section, used the term "forges or counterfeits" in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

2. Construction with other laws.

Violation of section is not a felony for purposes of 12 U.S.C. § 588(b). Jerome v. United States, 318 U.S. 101, 63 S. Ct. 483, 87 L. Ed. 640 (1942).

3. Knowledge and intent.

Where state provided no evidence as to whether the defendant knew the instrument was forged, or that he intended to defraud, it failed to provide sufficient evidence to sustain conviction of uttering a forged instrument. State v. Colby, 139 Vt. 475, 431 A.2d 462 (1981).

4. Evidence.

Evidence that check was forged, that defendant knew the check was missing and knew purported endorser, and that defendant presented check at bank was insufficient to prove that defendant knew the check was forged and to support conviction under this section. State v. Ravenna, 151 Vt. 96, 557 A.2d 484 (1988).

1. Constitutionality.

Act of this state against counterfeiting bank notes was not void for repugnancy. State v. Randall, 2 Aik. 89 (1827).

2. Construction.

The legislature, in enacting this section, used the terms "forges or counterfeits" in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

3. Jurisdiction of state courts.

The offenses of counterfeiting bills of bank of the United States were cognizable by courts of the state notwithstanding the Congress of the United States has legislated on the subject and given to courts of the United States jurisdiction of same offenses. State v. Randall, 2 Aik. 89 (1827).

4. Indictment.

The uttering, passing and giving in payment a counterfeit bank bill are distinct offenses; and an indictment for uttering and passing such bill, averring knowledge of respondent that bill was counterfeit was sufficient though it did not allege that respondent uttered and passed it as a true bill. State v. Wilkins, 17 Vt. 151 (1845).

Words "bank bill" and "promissory note" were synonymous, and indictment which charged respondent with having uttered a counterfeit "bank note" was sufficient. State v. Wilkins, 17 Vt. 151 (1845).

1. Construction.

The legislature, in enacting this section, used the terms "forges or counterfeits" in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448 (1970).

1. Indictment.

Indictment for having in possession counterfeit coin need not aver that denomination of coin which was counterfeited was "current by law, or usage, in this state," it being averred, that the coin was one of the current silver coins of the United States. State v. Griffin, 18 Vt. 198 (1846).

2. Mould.

This section was intended to reach every part of apparatus of coining, however much more might be necessary to make that effective; therefore, if it was shown that respondent had in his possession one half of a mould, it was sufficient, without proof that he also had the other half. State v. Griffin, 18 Vt. 198 (1846).

3. Crucible.

Having a crucible in possession for purpose of counterfeiting did not constitute an offense under this section. State v. Bowman, 6 Vt. 594 (1834).

1. State coat of arms.

The provisions of this section refer to and include the coat of arms of the state and the use of such shield or any other figure or design which incorporates it is prohibited, except as set forth in § 1904 of this title. 1952 Op. Atty. Gen. 60.

2. Seal.

Medals with portrait of Robert Frost on one side and Vermont seal on the other made by private manufacturer, would be in violation of this section if sold in the state of Vermont. 1962-64 Op. Atty. Gen. 117.

1. Poem.

A poem not to be used in any way as advertising any product, service or other thing, may have a picture of the state's seal. 1948 Op. Atty. Gen. 112.

1. Elements of offense.

Information alleging that respondent, by falsely personating a person to whom a bank check was intended to be delivered, fraudulently obtained said check charged offense under this section. State v. Marshall, 77 Vt. 262, 59 A. 916 (1905).

If state shows that respondent obtained check by falsely personating another and that check was intended to be delivered to the person so falsely personated, conviction may be had under this section. State v. Marshall, 77 Vt. 262, 59 A. 916 (1905).

1. Elements of offense.

There are three elements to the offense of false pretenses: first, the offender must act with intent to defraud; second, the offender must use a fraudulent device or artifice, such as a bad check; and, third, the offender must actually obtain money or property with a value in excess of $25.00. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

False personation of another, with the intent thereby fraudulently to obtain property, is a "false pretense," within meaning of this section. State v. Marshall, 77 Vt. 262, 59 A. 916 (1905).

If state shows that respondent obtained check by falsely personating another, but person so personated had no interest in check and it was not intended to be delivered to him, unless he was respondent, then the respondent may be convicted under this section. State v. Marshall, 77 Vt. 262, 59 A. 916 (1905).

If false assertion is made in regard to article, and money is thereby fraudulently obtained, the falsehood is a false pretense within statute against obtaining money by false pretenses, if, in order to ascertain whether the representation is false, it is necessary to apply tests or experiments to the article. In re Greenough, 31 Vt. 279 (1858).

2. Construction with other law.

Whether defendant could be found guilty of the statutory crime of false pretenses does not depend on whether he could have been found liable in superior court based on a civil fraud complaint. State v. Agosta, 173 Vt. 97, 787 A.2d 1252 (2001).

The crime of false pretenses is different crime from the crime of bad checks, governed by section 2022 of this title. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

The elements of the offenses of false pretenses and of issuing or passing bad checks differ since conviction for false pretenses requires proof of intent to defraud, while mere knowledge suffices for the bad check crime, since one must actually obtain property to be convicted for false pretenses, which is not a requirement under section 2022 of this title, governing bad checks, and, finally, since there are permissive presumptions for finding criminal intent under section 2022 which are unavailable under this section. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

A person could pass a check, knowing it would be dishonored, but fully intending to make good on the underlying obligation, which would be a defense to a false pretenses prosecution, but the person would be guilty of the bad check crime under section 2022 of this title. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

Where a check is good when issued, but a person subsequently decides to defraud the payee and stop payment, prosecution lies for false pretenses, but not for the crime of issuing or passing a bad check under section 2022 of this title. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

The property requirements of this section preclude conviction for issuing bad checks as gifts, yet the same act is culpable under section 2022 of this title, governing bad checks. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

While there is significant overlap between this section and section 2022 of this title, governing bad checks, that alone is insufficient to effect an implied repeal of this section. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

There are too many differences between this section and section 2022 of this title, governing bad checks, to hold them repugnant or to conclude that section 2022 is a substitute for this section, particularly where the legislature has deliberately left both sections intact. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

Action of the legislature, taken two years after enacting section 2022 of this title, governing bad checks, in repealing the portion of this section that provided for lesser penalties for thefts involving less than $25.00 indicated that the legislature was well aware of the law and chose to leave the remainder of this section intact, coexisting with section 2022, and precluded a judicial excision of this section. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

Courts in other jurisdictions have endorsed implied repeal of the false pretenses section by the section governing bad checks only when the bad check section was drafted to completely incorporate the false pretenses section. State v. Foley, 140 Vt. 643, 443 A.2d 452 (1982).

3. Purpose.

One purpose of this section is to protect the weak and susceptible from being preyed upon. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231 (1985).

4. Intent.

To establish the element of intent to defraud, statements of intention falsely representing a present state of mind - including false promises of future action - will suffice. State v. Agosta, 173 Vt. 97, 787 A.2d 1252 (2001).

The "intent to defraud" element requires a scheme to cheat the victim. State v. Agosta, 173 Vt. 97, 787 A.2d 1252 (2001).

In the case of defendant convicted of obtaining money or other property by false pretenses, criminal intent as to the victim was not lacking where defendant knew that his false statement to the victim's sister would be passed on to the victim and where he intended thereby to induce her to part with her money. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231 (1985).

5. Reliance by victim.

The only materiality requirement imposed with respect to the crime of false pretenses is that the victim must have materially relied upon the misrepresentation. State v. Agosta, 173 Vt. 97, 787 A.2d 1252 (2001).

In prosecution for false pretenses arising from the sale of weapons, defendant's letterhead concerning his licensing status falsely represented a material fact and thus qualified for the crime of false pretenses, given the victim's testimony that (1) he assumed he was purchasing the weapons from a federally licensed dealer; (2) he relied upon defendant's written representation as to that fact; and (3) he would not have given defendant his money and gone through with the transaction had he known that defendant did not in fact have the licenses he claimed he did. State v. Agosta, 173 Vt. 97, 787 A.2d 1252 (2001).

Victim of fraud need not have relied solely upon the false representation in parting with his money, but only materially upon it. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231 (1985).

In the case of defendant convicted of obtaining money or other property by false pretenses, evidence that defendant falsely stated that he had been working across the street from the victim's home and had noticed shingles missing from her roof, that he pretended to talk over the telephone with the woman whose approval was needed for repairs and then misrepresented her approval, permitted the jury to conclude beyond a reasonable doubt that the victim acted in material reliance upon defendant's falsehood when she paid for the repairs. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231 (1985).

In the case of defendant convicted of obtaining money or other property by false pretenses where extrinsic evidence of the victim's reliance on defendant's false representations was clear, trial court was justified in denying defendant's request that the victim be ordered to undergo psychiatric examination to determine whether she was mentally competent to rely on defendant's representations. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231 (1985).

6. Conduct.

False pretenses may be based on silence or concealment. State v. Allen, 146 Vt. 569, 507 A.2d 975 (1986).

Presentation for payment of a third party's check by a person who knows payment on that check has been stopped, but makes no express written or oral representation with respect thereto, constitutes the crime of obtaining money by false pretenses under this section. State v. Allen, 146 Vt. 569, 507 A.2d 975 (1986).

One can commit the crime of false pretenses under this section by the making of a direct or express representation, whether oral or written, without passing a false token, or by passing a false token, such as a check, and the false representation may be shown indirectly or by implication or by the conduct of the person presenting the check for payment. State v. Allen, 146 Vt. 569, 507 A.2d 975 (1986).

7. Place of commission of offense.

Where person obtained property in this state by deceitfully representing in a letter written without the state that he was another person and by falsely personating that other person in an interview within this state with the person to whom the letter was sent and from whom the property was obtained, offense of obtaining property by false pretenses was committed in this state. State v. Marshall, 77 Vt. 262, 59 A. 916 (1905).

8. Sufficiency of indictment.

Where note was in blank form when respondent obtained employee's signature on representation that it was a paper that had to do with the employee's social security and thereafter filled in the blanks and discounted the note at the bank, it was proper for information charging false pretenses to set forth the instrument in blank. State v. Quesnel, 124 Vt. 491, 207 A.2d 155 (1965).

An information was sufficient which charged that respondent defrauded another, inducing him to deliver to respondent a large number of sheep, which he converted to his own use, by unlawfully, knowingly, designedly, and falsely pretending that a designated person in Boston had already mailed to respondent a check at such a time that by the course of regular mail it would be delivered to respondent in the afternoon of that same day and that respondent then and there well knew that said check had not been so mailed and would not be so delivered, but made said false representations with intent to defraud. State v. Ricker, 81 Vt. 456, 70 A. 1059 (1908).

It was not necessary to allege that respondent knew pretenses to be false, if it was alleged that he designedly made them with intent to defraud. State v. Switzer, 63 Vt. 604, 22 A. 724 (1891).

It was sufficient to allege that signature was obtained by false pretenses, setting forth what they were, and a further description of them as "inducements" and "representations" did no harm, being mere tautology. State v. Switzer, 63 Vt. 604, 22 A. 724 (1891).

9. Evidence.

In prosecution for false pretenses arising from the sale of weapons, evidence of defendant's failure both to follow through on the paperwork necessary for transfer of the weapons and to notify the victim of his change of address entitled the jury to conclude that defendant intended to defraud the victim and to convict him of false pretenses. State v. Agosta, 173 Vt. 97, 787 A.2d 1252 (2001).

In prosecution for obtaining money and other property from several companies by false tokens, consisting of checks drawn on banks, well knowing that drawer was not then entitled to draw thereon for amount of respective checks, with intent to defraud such companies, and for uttering and publishing forged instruments, consisting of such checks, for same fraudulent purpose, it was unnecessary to show corporate existence of banks on which checks were drawn, since they were not parties allegedly defrauded. State v. Conley, 107 Vt. 72, 176 A. 300 (1935).

10. Questions for jury.

Whether false pretenses were such as ought to mislead a man of ordinary prudence could not be determined on demurrer, that question being for jury. State v. Switzer, 63 Vt. 604, 22 A. 724 (1891).

11. Particular cases.

Where jury could find defendant drew checks and gave them in payment of existing debts knowing he has insufficient funds to cover them, his testimony that the thought checks given them by a third person would cover the checks he drew was contradicted and the deposits his wife made, assertedly of the checks made out to defendant, were to the wrong account, jury could find defendant guilty of designedly issuing two checks with intent to defraud because he knew the sums were not covered, and obtaining thereby the discharge of debts of over $25 value. State v. Zeisner, 133 Vt. 375, 340 A.2d 69 (1975).

Cited. State v. Bergerson, 144 Vt. 200, 475 A.2d 1071 (1984).

Law review commentaries

Law review. Criminal prosecution of insincere promises under the false pretense statute, see 7 Vt. L. Rev. 125 (1982).

1. Purpose.

The purpose of this section is to protect the general public which is likely to read the publication. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

2. Jurisdiction.

County court had jurisdiction over prosecution for false advertising under this section where allegedly false advertisements appeared in newspaper sold and distributed in the county even though the material may have been written and printed elsewhere. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

To establish criminal responsibility it is not necessary that the offender do every act necessary to complete the crime within the state where he is prosecuted. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

One who while absent from the jurisdiction commits an offense within the state by means of an innocent agency may be held liable in that state if that is where the crime is accomplished. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

3. Elements.

To make false advertising an offense under this section, it is not necessary that any person be cheated or defrauded by a false statement, but only that the material was false and intentionally circulated to induce the public to buy the property or service offered. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

Making it an offense under this section to knowingly make or circulate an untrue, deceptive or misleading advertisement forbids the circulation as an inducement to business transactions of untrue, deceptive or misleading representations of fact concerning goods and services offered for sale. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

False representations and broken promises referring merely to the future do not constitute ground for establishing legal liability for fraud and deceit. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

4. Question for jury.

Where the language of false representation referring to the future is susceptible of a construction which makes the statement applicable to present conditions, the interpretation of representation is for the trier of facts. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

5. Sufficiency of evidence.

Inconsistency between defendant's claim in advertisement that he had four doctorates and evidence that he had stated in application for admission to a university and in application for a teaching position that he was a "doctor and," meaning that he had undertaken graduate study for a doctorate, did not establish falsity of advertising for purposes of criminal prosecution. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

Conviction under this section could not be sustained where findings of false representations were predicated on defendant's asserted want of credibility rather than on affirmative and substantial evidence of his guilt. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

6. Findings.

Finding that defendant's use of word "granting," in advertisement for college with two and four-year programs granting associate and bachelor degrees, referred to authority then existing to grant degrees was warranted. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

Advertisement soliciting applicants for college with two and four-year programs granting associate and bachelor degrees was false, deceptive, and misleading within prohibition of this section insofar as the school was not then empowered to grant degrees. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

Alleged fact that youth of country should not be exposed to defendant's philosophies, teachings and corrupting influence afforded no proper basis for conviction of false advertising to obtain applicants for admission to a college where defendant had never made his character an issue. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

7. Review.

On appeal from conviction of false advertising under this section, the question before the reviewing court was whether the subordinate findings were sufficient in law to sustain trial court's conclusion as to defendant's guilt. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

8. Interstate commerce.

This section making it an offense to knowingly make or circulate an untrue, deceptive or misleading advertisement in a newspaper, magazine or other publication or in form of a book, notice, etc., does not impose an unconstitutional burden on interstate commerce. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).

A statute relating to advertising that is addressed to a proper and traditional subject of the police power does not violate the commerce clause when not in conflict with the federal scheme. State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968).