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.

SCOVT affirms judgment for defendant in wrongful death claim, holding the evidence supported the verdict, no error in evidentiary rulings, that the speed at which the jury returned its verdict was not reversible error, and erroneous submission of comparative negligence charge to the jury was harmless.

 Shaffer v. Northeast Kingdom Human Services, Inc., 2025 VT 31 [6/20/2025]

REIBER, C.J.   In this wrongful-death action, plaintiff the Estate of Jared Shaffer, through Daniel Shaffer as administrator, appeals from a jury verdict and judgment in favor of defendant Northeast Kingdom Human Services, Inc.  The estate argues the court erred by instructing the jury on comparative negligence, by providing jury instructions that it claims were misleading, and by sustaining defendant’s objections to certain questions the estate attempted to ask defendant’s corporate representative at trial.  The estate further argues the jury verdict must be reversed because the jury deliberated too quickly and because the evidence overwhelmingly supported the estate’s claim that defendant acted negligently in performing its duty to oversee and monitor developmental disabilities services and care for decedent.  We find error in the proceedings but no prejudice to the estate and therefore affirm.

 

A.  Comparative Negligence . On appeal, the estate first claims that the trial court erred by denying its pretrial motion to strike the affirmative defense of comparative negligence.  We agree the trial court committed error in its analysis by conflating the identity of the “plaintiff,” the administrator of the estate, with decedent’s co-guardian and father, Daniel Shaffer.  However, the court acted within its discretion to consider the motion, determine that the defense of comparative negligence should remain because of disputed questions  of law and fact, and charge the defense to the jury at the conclusion of evidence.  The court’s error was rectified by correction in the jury charge and jury instructions and, ultimately, the estate was not prejudiced because the jury never reached the affirmative defense because it concluded there was no negligence on defendant’s part.  The estate also claims that the court should not have instructed the jury on comparative negligence, failed to preserve this objection to the jury instructions by not raising it below.

 

B.  Evidentiary Rulings. Next, the estate argues the trial court erred in preventing its attorney from questioning defendant’s corporate representative about the master grant agreement between defendant and the state, The court ruled, that the witness did not have an understanding of the document and therefore could not offer testimony about the document. On appeal, the estate argues that the witness should have known about the master grant agreement, because he was the designated corporate representative and a 2019 deposition notice to him indicated that the estate would question him about the agreements.  The Vermont Rules of Evidence provide “the testimony of a witness may be excluded . . . unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”  V.R.E. 602.  Where, as here, the witness testified that he had no knowledge of the agreements, the trial court did not abuse its discretion in prohibiting further questioning about the agreements.  

The estate next argues the court erred in preventing it from questioning the corporate representative about a report from a third-party audit of defendant’s operations. After defendant objected  , the court allowed the estate to ask additional questions after which the estate  turned to a completely different line of questioning.  At no point did counsel for the estate attempt to move the audit report into evidence, and the court never made a definitive ruling excluding the testimony or the report.  “Where counsel abandons a question or line of questioning before the court has ruled that he must do so, there is no basis for a claim of error.”  State v. Kasper, 137 Vt. 184, 206, 404 A.2d 85, 97 (1979)

C.  Jury Verdict.  Finally, the estate argues the jury failed to understand the court’s instructions and the speed at which the jury returned its verdict was reversible error.   There is no requirement that a jury deliberate any longer than may be necessary to agree upon a verdict. From the evidence in the light most favorable to the verdict, the jury could reasonably conclude that defendant did not owe decedent a duty to provide or oversee his medical care.  Therefore, the jury’s verdict must stand.   

Evidence: End run around hearsay rule fails under Rule 602, because witness who testifies to his understanding after an out-of-court interview lacks personal knowledge.

State v. Porter, 2014 VT 89 (01-Aug-2014)

CRAWFORD, J. Defendant Harold D. Porter, Jr. appeals from his conviction for attempted kidnapping. He argues that the trial court erred in admitting the testimony of police officers that they had ruled out other suspects based on interviews with out-of-court declarants; We reverse and remand.

Because the truck was relatively unique, police investigators working with the Department of Motor Vehicles were able to identify approximately twenty vehicles registered in Vermont which matched the make and color of the truck seen on camera. Ten vehicle owners testified at trial for the purpose of eliminating their truck or trucks from identification. The police interviewed five other owners prior to trial. These owners did not testify at trial. Instead, the investigating officers testified that based on the out-of-court interviews with the owners, the officers were able to eliminate those remaining trucks from the identification process. In the absence of evidence that the statements were based on personal knowledge, the requirement of Rule 602 was not met and the testimony of the officers should have been excluded.