- CR32-051. Negligent Operation, 23 V.S.A. § 1091(a) (04/04/06)
- CR32-101. Grossly Negligent Operation, 23 V.S.A. § 1091(b) (04/04/06)
- CR32-121. Grossly Negligent Operation, with transition to negligent operation (04/04/06)
- CR32-151. Grossy Negligent Operation w/ death resulting, 23 V.S.A. § 1091(b)(3) (04/04/06)
Transition from Grossly Negligent Operation to Lesser-Included Offense. Defendants have a right to choose a “hard” or a “soft” transition between offenses. State v. Powell, 158 Vt. 280, 284 (1992). The hard transition requires a verdict on the highest offense before the jury considers the lesser included offenses. The soft transition allows jurors to consider the lesser offenses if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.” State v. Duff, 150 Vt. 329, 336-37 (1988). Where a defendant “does not choose either transition instruction, it is within the discretion of the trial court to decide which instruction to provide.” State v. Rolls, 2020 VT 18, ¶ 9 (trial court did not err in providing both hard and soft transition instructions, rather than one or the other, in the absence of defendant’s request). The committee’s instructions generally contain soft transitions, because most defendants prefer them. However, for defendants who prefer a hard transition, the committee offers the following example:
You must first consider the charge of grossly negligent operation of a motor vehicle. If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations. If you decide that the State has not proven each and every one of the essential elements of grossly negligent operation of a motor vehicle, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of negligent operation of a motor vehicle.