General Concepts

CR09-011.  Identity of Defendant as First Element (07/29/05).  Most criminal charges include identity as the first essential element, with a short instruction such as CR09-011.  In some cases it may be appropriate to elaborate, such as where the issue of identity turns on eyewitness identification.  See CR05-601 and the accompanying notes.  The essential element of identity may be shown by circumstantial evidence.  State v. Erwin, 2011 VT 41; State v. Hoch, 2011 VT 4; State v. Danforth, 2008 VT 69, 184 Vt. 122.

CR09-021.  Alibi (12/13/10).  The instruction explains that the jury should return a verdict of not guilty if they have a reasonable doubt as to whether defendant was present at the time and place alleged.  State v. Ovitt, 148 Vt. 398, 402–03 (1987).  The defendant does not bear any burden of proving an alibi, because it is always the burden of the state to prove that the defendant was the one who committed the charged offense.  Id.; Stump v. Bennett, 398 F.2d 111, 114–15 (8th Cir. 1968).  Even if the defendant does not persuade the jurors that he or she was at some other specific place at the time of the alleged offense, the jurors may still question whether the state’s evidence proved beyond a reasonable doubt that the defendant was the one who committed the charged offense.

In some cases, however, the state may introduce affirmative evidence showing that the defendant’s evidence of alibi is not only unworthy of belief but actually fabricated or false.  In these cases, the judge may decide to instruct the jurors that if they find the alibi evidence to be actually fabricated or false beyond a reasonable doubt, then they may consider the attempt to fabricate evidence to be some evidence of consciousness of guilt that may be considered along with all of the other evidence in the case.  State v. Forty, 2009 VT 118, 187 Vt. 79; State v. Ovitt, 148 Vt. 398, 402–03 (1987); State v. Ladabouche, 127 Vt. 171, 177 (1968); State v. Conley, 107 Vt. 72, 76 (1935); State v. Ward, 61Vt. 153, 194 (1888).

Use of the “false or fictitious alibi” language requires a distinction between actual fabrication of evidence and mere failure to establish an alibi.  An instruction that suggests that the jurors may infer guilt if the defendant offers an alibi defense but fails to prove it is impermissible because it “implies a shifting of the burden of proof from the state to the defendant, and as such, violates due process.”  Ovitt, 148 Vt. at 402.  Use of the “false or fictitious alibi” instruction, therefore, is best limited to cases in which the state has introduced affirmative evidence tending to show the outright falsity of the alibi.  Forty, 2009 VT 118, ¶ 18.

Additional caution is warranted because “consciousness of guilt” evidence (e.g., evidence of flight, or false exculpatory explanations offered to a police officer) has limited probative value and is not sufficient by itself to support a conviction.  State v. McAlister, 2008 VT 3, ¶¶ 28, 32–33, 183 Vt. 126 (Dooley, J., dissenting); State v. Onorato, 171 Vt. 577, 578–79 (2000) (mem.); State v. Unwin, 139 Vt. 186, 193 (1980).  The judge may decide whether to give the “false or fictitious alibi” instruction based on the circumstances of the case and the arguments of counsel.

CR09-051.  Causation (09/22/03). In most cases, the court should not elaborate on the meaning of causation, because jurors already understand it. The description of “efficient intervening cause” is appropriate only if there is evidence supporting it. Nevertheless, there will be cases in which elaboration is desirable and appropriate. In such cases the lawyers should raise the issue with the judge.

The Vermont Supreme Court has indicated approval of a short, simple explanation of causation, in State v. Johnson, 158 Vt. 508, 512 (1992). The Court has affirmed that the defendant’s actions must be a cause, rather than the cause of the harm. State v. Martin, 2007 VT 96, ¶ 40, 182 Vt. 377. Martin disapproved of a statement from State v. Yudichak, 151 Vt. 400, 403(1989), that the defendant’s acts had to have been the cause of the harm, and reaffirmed the earlier explanation of causation from State v. Rounds, 104 Vt. 443, 453 (1932), that “respondent’s unlawful acts need not be the sole cause of death; it is sufficient if they were a contributory cause.”

However, statutory enactments may impose a requirement of direct causation.

The Court affirmed the trial court’s causation instruction on DUI-death resulting in State v.Sullivan, 2017 VT 24, ¶¶ 12–23, 204 Vt. 328. In construing the particular statute in issue (23 V.S.A. § 1210(f)(1)), the Court observed that “[w]here the statute involves a specified result that is caused by conduct, it must be shown, as a minimal requirement, that the accused’s conduct was an antecedent ‘but for’ which the result in question would not have occurred.” Sullivan, 2017 VT 24, ¶ 19 (citing 1 Wharton’s Criminal Law § 26 (15th ed. 2016)). So, in a prosecution for DUI-death resulting,

a jury instruction . . . must require findings that: (1) the defendant operated a vehicle on a highway; (2) he or she did so while under the influence of intoxicating liquor; and (3) his or her intoxication while operating the vehicle caused the victim’s death. A mere violation of §1201, standing alone, is insufficient to meet the requirement that the death result from the violation of the statute.

Id. ¶ 19 (emphasis in original).

CR09-301.  Accomplice Liability (where defendant was present at the scene) and CR09-305, Accomplice Liability (where defendant was not present at the scene)  (12/22/03).  The instructions on accomplice liability states the general rule from State v. Barr, 126 Vt. 112 (1966), and State v. Orlandi, 106 Vt. 165 (1934).  The Supreme Court has re-stated and clarified the rule in the context of felony murder, in the companion cases State v. Bacon, 163 Vt. 279 (1995), and State v. Hudson, 163 Vt. 316 (1995).  The requirement that the defendant must have acted with the same intent as that of the principal perpetrator is discussed in Bacon, 163 Vt. at 289.  See State v. Doucette, 143 Vt. 573 (1983) (reinterpretingVermont’s felony murder statute, 13 V.S.A. § 2301).

These instructions note that State has charged the defendant as an accomplice.  If the evidence is unclear about who was the principle actor, the instructions should explain that the State may prove that the defendant committed the crime either as an accomplice, or as the principle actor.  In State v. Green, 2006 VT 64, 180 Vt. 544, the Supreme Court held that it was not plain error for the court to instruct, on the actus reus element, that “the defendant or his accomplice” must have sold the heroin.  The instruction meets the constitutional requirement that the jury reach a unanimous verdict on the essential elements of the crime.  Compare State v. Couture, 146 Vt. 268 (1985) (where the jury was told it could convict the defendant of kidnapping, for confining any one of the five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element that the defendant had confined a particular person).

Accomplice liability may be shown by encouragement by someone who was present at the scene.  See State v. Orlandi.  However, the committee questions whether a defendant may be convicted of accomplice liability based on encouragement by someone who was not present at the scene.  For that reason, “encouragement” is included in CR09-301, but not in CR09-305.

The committee recognizes that the jurors might be unfamiliar with the term “express agreement.”  The following definitions appear in Black’s Law Dictionary (6th ed.):

ExpressClear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous.  Declared in terms, set forth in words.  Directly and distinctly stated.  Made known distinctly and explicitly, and not left to inference. . . .  Manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.  The word is usually contrasted with “implied.” [citations omitted].

CR09-311.  Abandonment of the Criminal Enterprise (in context of felony murder) (12/22/03)

CR09-315.  Abandonment of the Criminal Enterprise (generic) (12/22/03)

CR09-321.  Aiding in the Commission of a Felony, 13 V.S.A. § 3 (06/14/12)

CR09-331.  Accessory After the Fact, 13 V.S.A. § 5 (07/31/15).  By its terms, the Accessory After the Fact statute does not criminalize acts assisting family members or certain other related persons to escape prosecution. While many other states have repealed this exemption, the Vermont Legislature has not. See State v. Williams, 142 Vt. 81, 86 (1982). Thus, in Williams, the Supreme Court noted that the statute does not remove this exemption if the defendant’s sibling committed the underlying felony with others, absent evidence of independent assistance to the non-related co-defendant. Id. at 85–86. Furthermore, conviction for the underlying felony is not required; instead, “commission of an act which constitutes a felony is the predicate to liability for assisting the offender.” Id. at 86 (statute would still apply to defendant’s actions in assisting juvenile who could not be punished as an adult, as long as act which juvenile committed was a felony). Whether the underlying crime actually constitutes a felony is a question of law on which the court should instruct the jury.

CR28-041.  Endeavoring to Incite a Felony, 13 V.S.A. § 7 (03/03/06).  Endeavoring to incite a felony differs from an attempt.  State v. Hudon, 103 Vt. 17 (1930).  Endeavoring may be punished as a crime under § 7, whether or not there is any attempt, and whether a resulting attempt succeeds or fails.  State v. Ciocca, 125 Vt. 64 (1965).  The Supreme Court has referred to endeavoring as the crime of solicitation.  The crime of endeavoring may be completed whether or not the crime solicited is actually completed.  See State v. Brown, 147 Vt. 324, 326-27 (1986), where the defendant was convicted as a principal under the doctrine of innocent agent, but where he could have been prosecuted for endeavoring to incite the crime under § 7.

The instruction calls for the insertion of the elements of the incited crime.  Where a defendant is charged with endeavoring to incite a felony, it is probably necessary to list all of the essential elements.  However, the amount of additional description of the felony may depend upon the facts of the specific case.  For a discussion about the appropriate amount of “detailing” see State v. Davignon, 152 Vt. 209 (1989).

CR09-201.  Attempt, 13 V.S.A. 9 (06/14/12).  The instruction recognizes that an attempt requires an act coupled with a purposeful intent.  Some of the language derives from State v. Morse, 130 Vt. 92, 94 (1971). For further, more recent discussion of criminal attempt, see State v. Boutin, 133 Vt. 531, 533 (1975); State v. Synnott, 2005 VT 19, ¶ 22, 178 Vt. 66; and State v. Sawyer, 2018 VT 43, ¶¶ 12–22. In Sawyer, the Supreme Court reaffirmed Vermont’s longstanding attempt analysis, observing that the unavailability of an abandonment defense differentiates Vermont’s law on attempt from the Model Penal Code’s “substantial-step” analysis. Id. ¶¶ 20–22.

Note that the Legislature subsequently adopted the MPC’s “substantial step” analysis for the crime of “domestic terrorism.” 2018, No. 135, § 2 (codified at 13 V.S.A. § 1703).

CR28-061.  Habitual Criminal, 13 V.S.A. § 11 (06/19/03).  When the state seeks to penalize a defendant as an habitual criminal, it must provide notice by filing a separate charge.  The defendant is entitled to a bifurcated proceeding, including a jury trial on the second phase to consider (1) the sufficiency of the record alleged as to the prior convictions, and (2) the defendant’s identity as the person previously convicted.  See State v. Angelucci, 137 Vt. 272, 281 (1979); State v. Cameron, 126Vt. 244, 249 (1967).

 The defendant is not entitled to a jury determination as to whether a previous conviction constitutes a felony, because that issue presents a pure question of law.  The court’s determinations as to whether crimes committed in other states would have been felonies in Vermont are reviewed as questions of law.  Angelucci at 285.  This approach avoids the need to ask jurors to compare Vermont statutes with foreign statutes, to match essential elements.

 The instruction states: “To be convicted means to be found guilty of a crime and sentenced.”  Under V.R.Cr.P. 32(b), “[a] judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence or conditions of deferment thereof.”  The reporter’s notes explain that “[t]he rule provides for the entry by the clerk of a formal ‘judgment of conviction’ after the sentencing of the defendant.”  V.R.Cr.P. 32(b), reporter’s notes to 1980 amendment, at 182.

 The Vermont Supreme Court has held that a judgment of guilt pursuant to a deferred sentence is considered a “conviction” for purposes of reporting a sex offense to the Department of Public Safety for inclusion in the sex offender registry.  See State v. Stoddert and State v. Thompson, 174 Vt. 172 (2002).  The committee believes that Stoddert and Thompson is limited to issues of registration, and does not alter the general rule that to be “convicted” means to be found guilty of a crime and sentenced.

CR09-401.  Conspiracy, 13 V.S.A. § 1404 (06/14/12)

CR09-501.  Motive (06/18/03)

CR09-601.  Territorial Jurisdiction and CR09-606 Territorial Jurisdiction (simpler version), 13 V.S.A. § 2 (04/21/03).  This instruction should be given only if the territorial jurisdiction is a material issue in the case.  See, e.g., State v. Pellerin, 164 Vt. 376 (1995), and State v. Mosher, 143 Vt. 197 (1983).  The pertinent statute provides the following:

 13 V.S.A. § 2. Crimes committed partly outside state.

A person who, with intent to commit a crime, does an act within this state in execution or part execution of such intent, which culminates in the commission of a crime either within or without this state, shall be punished for such crime in this state in the same manner as if the same had been committed entirely within this state. A crime committed by means of an electronic communication, including a telephonic communication, shall be considered to have been committed at either the place where the communication originated or the place where it was received.

The statute, and the instruction, include some difficult concepts.  The committee recommends tailoring the instruction to the circumstances of the case.  The instruction given should use the defendant’s name, and it probably should also name any other locations that might be involved.

Instruction CR09-606 provides a simpler version of the instruction on territorial jurisdiction.  It was drafted for use in a case where a single act was alleged, and where the act might have occurred in either New Hampshire or Vermont.