SCOVT reverses unlawful mischief conviction for plain error because the instruction allowed the jury to find a lower standard of intent than required by the statute; but affirms aggravated assault convictions holding, among other things, that court did not abuse its discretion in declining to exclude under Rule 602 for lack of personal knowledge, a neighbor’s statement in a 911call that "[h]e's beating the shit out of her”.

 

State v. Lyddy,  2025 VT 1 [1/3/2025]

COHEN, J. Defendant appeals his convictions of three counts of second-degree aggravated domestic assault and one count of felony unlawful mischief. He argues that the court erred by admitting a 911 caller’s statement that defendant was beating the complainant, and failing to sua sponte strike the complainant’s testimony that police had to tell her that she had been assaulted. Defendant claims that his convictions of the second and third counts of domestic assault violated the prohibition against double jeopardy because they were based on a single, continuous act. He contends that the trial court erroneously instructed the jury about the intent required to prove unlawful mischief. Finally, he argues that the court erred in allowing the jury to consider evidence of damage to a laptop and a cocktail recipe book as part of the unlawful mischief charge. We reverse and remand for a new trial on the unlawful mischief count but otherwise affirm.

Under V.R.E. 602 "The testimony of a witness may be excluded or stricken unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." Defendant moved to exclude the statement "[h]e's beating the shit out of her”. He argued that the 911 caller lacked personal knowledge to make this statement, because the 911 caller could not see what was happening in defendant's apartment. The court declined to exclude the statement, reasoning that the statement was a present sense impression and could be admitted if the 911 caller was subject to cross-examination.

We conclude the court did not abuse its discretion in declining to exclude the statement for lack of personal knowledge. The caller's statement is reasonably interpreted as \based on what he could hear through the walls. As one court has observed, "[w]e perceive events with our ears as much as with our eyes.” The fact that the caller witnessed the fight with his ears and not his eyes did not require the statement's exclusion under Rule 602. See also V.R.E. 803(1) (providing that "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition" is not excluded by the hearsay rule even if declarant is available to testify)

Defendant also argues that the court erred by failing sua sponte to exclude as hearsay complainant's testimony during cross-examination, that the police chief “had to explain to me that I had been assaulted . . . I didn't even know what happened. But I was in such shock." To reverse for plain error, defendant must demonstrate three factors: "First, there must be an error; second, the error must be obvious; and third, it must affect substantial rights and result in prejudice to the defendant." State v. Koons, 2011 VT 22, ¶ 11.

We conclude that the admission of the complainant's statement does not meet this standard. Assuming there was error, defendant has not shown that it struck at the heart of his constitutional rights or resulted in prejudice. There was ample other evidence to support the assault charges. See State v. Burgess, 2007 VT 18, ¶ 9, (explaining that if wrongly admitted evidence is cumulative, error is harmless beyond a reasonable doubt). Viewed in light of the evidence as a whole, the court's failure to sua sponte strike the statement or take other curative action was not plain error.

Defendant argues that the court improperly instructed the jury on the intent element of unlawful mischief by stating the jury could find him guilty if it found he acted knowingly. Because defendant did not object to the jury instruction, we review this issue for plain error

13 V.S.A. § 3701(a) requires the State to prove defendant acted “with intent to damage property”. The trial court erred in instructing the jury that it could find the requisite intent for unlawful mischief if it found that defendant acted knowingly.

As in Jackowski, the “instruction may have led the jury to ignore any evidence of defendant’s intent and to convict solely based on [his] knowledge.” State v. Jackowski. 2006 VT 119, ¶ 9.

The State argues that the error was harmless because defendant conceded that he threw the complainant's phone, Defendant admitted that he threw the phone but denied that he did so in order to break it. Similarly, defendant testified that he shut the laptop because he "wanted the noise to stop," and that he "felt horrible" when he realized the screen had cracked and offered to pay for the damage. His intent was therefore the central disputed issue for this charge.

Where, as here, defendant's intent was the central element at issue, and the trial court's instruction suggested that knowledge was sufficient to satisfy that element, we cannot conclude the error was harmless beyond a reasonable doubt. We therefore reverse defendant's conviction on the unlawful-mischief count.

Defendant’s unlawful-mischief conviction is reversed and remanded for a new trial. His convictions are otherwise affirmed.