The following instructions explain the various mental elements that may be included in the explanation of\u00a0a particular crime.<\/p>\n
CR06-001.\u00a0\u00a0Circumstantial\u00a0evidence\u00a0of intent or mental state<\/a> (06\/23\/08).\u00a0 This instruction guides the jury regarding the use of circumstantial evidence to determine the defendant\u2019s mental state.\u00a0 The committee recently shortened it from three sentences to two.\u00a0 The change was made in the interest of brevity, and not because of any perceived error.<\/p>\n Nevertheless, the change eliminated a sentence that the Supreme Court has criticized in State v. Brunelle<\/span>, 2008 VT 87, 184 Vt. 589 (mem.).\u00a0 The sentence in question states:\u00a0 \u201cA person ordinarily intends the natural and probable consequences of his or her voluntary acts, knowingly done.\u201d\u00a0 Although this is a permissible inference that the jury may draw, the Court suggested that it \u201cmay have been plain error\u201d for the judge to give the instruction.\u00a0 Id<\/span>. at \u00b6 18.\u00a0 In the past, the Court has held that it is error to instruct this inference as a presumption, as in:\u00a0 \u201cA person is presumed to intend the natural and probable consequences of his acts.\u201d\u00a0 State v. Martell<\/span>, 143 Vt. 275, 278 (1983) (citing Sandstrom v. Montana<\/span>, 442 U.S. 510, 518-19 (1979)); accord State v. Myers<\/span>, 2011 VT 43.\u00a0 The Brunelle<\/span> decision indicates that the court should be wary of suggesting the inference.\u00a0 In light of Brunelle<\/span> and Myers<\/span>, the committee has eliminated the questionable sentence from all of its instructions.\u00a0 <\/em><\/p>\n For a recent example of an instruction explaining circumstantial evidence in the context of determining the defendant\u2019s intent or mental state, see<\/em> State v. Dow<\/span>, 2016 VT 91, \u00b6 11, 202 Vt. 616.<\/p>\n CR06-011.\u00a0 Specific Intent<\/a> (12\/08\/03).\u00a0 In most cases, the jury instruction will state the specific intent that must be proven, but it is not necessary to refer to the mental state as a \u201cspecific intent.\u201d See<\/em>, e.g.<\/em>, State v. Dow<\/span>, 2016 VT 91, \u00b6\u00b6 11\u201314, 202 Vt. 616. When this project began, the committee used modules to refer to instructions within this chapter, but as the project has evolved, the trend is to spell out the intent to be proven within each separate instruction.\u00a0 See also the bottom of this page for additional notes on the concept known as “general intent.”\u00a0 <\/em><\/p>\n CR06-111.\u00a0 “Intentionally<\/a>”\u00a0 (02\/12\/07).\u00a0 The Supreme Court has clarified that acting \u201cintentionally\u201d means to act \u201cpurposely\u201d or with a specific \u201cconscious object.\u201d\u00a0 State v. Jackowski<\/span>, 2006 VT 119, 181 Vt. 73.\u00a0 A charge that the defendant acted \u201cintentionally\u201d is not shown by \u201cknowing\u201d conduct, i.e. where the defendant was \u201cpractically certain\u201d to cause a specific result.\u00a0 The committee has reviewed its instructions on \u201cintentional\u201d conduct, to ensure consistency with the holding of Jackowski<\/span>.<\/p>\n The model instruction for \u201cintentionally,\u201d CR06-111, includes a space for stating the specific harm that is alleged to have been caused.\u00a0 At some point the instruction must identify the intent that must have been proven.\u00a0 The committee notes that not every case includes an allegation of harm to a victim.\u00a0 For some crimes, the allegation is that the defendant has harmed society.\u00a0 <\/em><\/p>\n CR06-121.\u00a0 “Purposely<\/a>”\u00a0 (12\/08\/03).\u00a0 The model instruction for \u201cpurposely,\u201d CR06-121, is very similar to the instruction for \u201cintentionally,\u201d CR06-111.\u00a0 As suggested by State v. Jackowski<\/span>, 2006 VT 119, 181 Vt. 73, the two words have essentially the same meaning.<\/p>\n CR06-131.\u00a0 “Knowingly<\/a>”\u00a0 (12\/08\/03).\u00a0 To act \u201cknowingly\u201d means to engage in conduct that will cause, or that will be practically certain to cause, a specific harmful result.\u00a0 As the Supreme Court explained State v. Jackowski<\/span>, 2006 VT 119, 181 Vt. 73, this is somewhat different from acting \u201cintentionally\u201d or \u201cpurposely.\u201d<\/p>\n CR06-141.\u00a0 “Recklessly<\/a>”\u00a0 (08\/28\/20). The instruction on recklessness derives from the Model Penal Code, \u00a7 2.02(c), as recognized by the Supreme Court in State v. Amsden<\/u>, 2013 VT 51, \u00b6 23, 194 Vt. 128. See also<\/em> State v. Brooks<\/u>,\u00a0163 Vt. 245, 251 (1995); State v. O\u2019Connell<\/u>,\u00a0149 Vt. 114, 115 n. 1 (1987); State v. Hoadley<\/u>, 147 Vt. 49, 55 (1986). Note that a prior version of CR06-141 included an additional sentence that is not part of the MPC definition: \u201cYou may find that (Def)_______________ acted recklessly if [he] [she] acted without regard to the possible consequences of [his] [her] actions.\u201d In 2020, the Committee considered whether that language had any continuing viability given the Supreme Court\u2019s express adoption of the MPC definition.<\/p>\n While some trial courts have used that additional language in non-homicide cases, it has not been directly addressed or approved by the Supreme Court outside of the homicide context. See<\/em>, e.g.<\/em>, State v. Carter<\/u>, 2017 VT 32, \u00b6 11, 204 Vt. 383 (quoting trial court\u2019s definition of recklessly in context of aggravated domestic assault charge\u2014\u201c[a] person acts\u00a0recklessly\u00a0if he acts without regard to the possible consequences\u00a0of his actions\u201d\u2014but not addressing that precise issue); State v. Rollins<\/u>, No. 2009-482, 2010 WL 7799810, at *3\u20134 (Vt. Oct. 21, 2010) (unpub. mem.) (describing trial court\u2019s domestic assault instruction, which defined recklessly using the \u201cpossible consequences\u201d language, as \u201cfull, fair, and correct\u201d in rejecting defendant\u2019s \u201ctheory of the case\u201d argument, but not addressing propriety of \u201cpossible consequences\u201d language). Thus, the Committee\u2019s current approach to CR06-141 follows Amsden<\/u>, which expressly endorsed the MPC definition without the additional \u201cpossible consequences\u201d language in the context of a disorderly conduct charge. Amsden<\/u>, 2013 VT 51, \u00b6 23. This does not necessarily mean that the prior version of the instruction (using \u201cpossible consequences\u201d) cannot be given in certain cases, as the Court has never expressly found error with that instruction.<\/p>\n Note that the Court has used the \u201cpossible consequences\u201d terminology to describe recklessness in the homicide context. See<\/em>, e.g.<\/em>, State v. Shabazz<\/u>, 169 Vt. 448, 455 (1999) (\u201cWhereas the recklessness pertaining to involuntary manslaughter is conduct that disregards the\u00a0possible<\/em>\u00a0consequence of death resulting, the wantonness pertaining to voluntary manslaughter is extremely reckless conduct that disregards the\u00a0probable<\/em>\u00a0consequence of taking human life.\u201d) (emphasis in original).<\/p>\n The Committee\u2019s current approach to CR06-141 also eliminates the word \u201cknown,\u201d which had appeared in a prior version of the instruction (\u201cconsciously ignored a known<\/em>, substantial and unjustifiable risk\u201d) but which does not appear in the MPC definition. The Committee concluded that the word \u201cknown\u201d was superfluous, because the language \u201cconsciously ignored\u201d already implies that the risk must be known.<\/p>\n CR06-151.\u00a0 “Wilfully<\/a>”\u00a0 (06\/14\/12).\u00a0 Although the mental state of \u201cwillfulness\u201d has been given different definitions under different circumstances over time, 1 LaFave, Substantive Criminal Law \u00a7 5.1 n.9 (2d ed.), the Vermont Supreme Court has taken the view that willfulness \u201ccannot well mean less than intentionally and by design.\u201d In re Appeal of Chase<\/span>, 2009 VT 94, \u00b6\u00a026, 186 Vt. 355; see also<\/em> State v. Bean<\/span>, 2016 VT 73, \u00b6\u00b6 11\u201312, 202 Vt. 361; State v. Coyle<\/span>, 2005 VT 58, \u00b6\u00a015, 178 Vt. 580 (mem.); State v. Penn<\/span>, 2003 VT 110, \u00b6\u00a09, 176 Vt. 565 (mem.); State v. Parentau<\/span>, 153 Vt. 123, 125 (1989); State v. Audette<\/span>, 128 Vt. 374, 379 (1970); Wendell v. Union Mut. Fire Ins. Co.<\/span>, 123 Vt. 294, 297 (1963); State v. Sylvester<\/span>, 112 Vt. 202, 206 (1941); State v. Williams<\/span>, 94 Vt. 423, 430 (1920); State v. Burlington Drug Co.<\/span>, 84 Vt. 243 (1911). In 2012, the committee revised all of the definitions of \u201cwillfulness\u201d throughout the model instructions to equate willfulness with an intentional act, and to clarify that the mental element of acting \u201cwillfully\u201d cannot be met by evidence that the defendant acted \u201cknowingly.\u201d See also<\/em> State v. Jackowski<\/span>, 2006 VT 119, \u00b6\u00a07, 181 Vt. 73.<\/p>\n CR06-161.\u00a0 “Criminal Negligence<\/a>”\u00a0 (12\/08\/03).\u00a0\u00a0 For discussions of criminal negligence, see State v. Free<\/span>, 170 Vt. 605 (2000); State v. Beayon<\/span>, 158 Vt. 133, 136 (1992); and State v. Stanislaw<\/span>, 153 Vt. 517, 525 (1990).<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Additional Notes Concerning General Intent:<\/em><\/p>\n \u00a0The concept known as \u201cgeneral intent\u201d means that the defendant generally knew what he or she was doing.\u00a0 See <\/em>LaFave and Scott, Substantive Criminal Law (1986), \u00a7 3.5(e) (\u201cCriminal,\u201d \u201cConstructive,\u201d \u201cGeneral,\u201d and \u201cSpecific\u201d Intent).\u00a0 \u201c[W]here the definition of a crime requires some forbidden act by the defendant, his [or her] bodily movement, to qualify as an act, must be voluntary.\u00a0 To some extent, then, all crimes of affirmative action require something in the way of a mental element \u2013 at least an intention to make the bodily movement which constitutes the act which the crime requires.\u201d\u00a0 Id<\/span>. at 314.\u00a0 The most common distinction between \u201cgeneral intent\u201d and \u201cspecific intent\u201d is that \u201cspecific intent\u201d designates a special mental element which is required above and beyond any mental state required with respect to the actus reus<\/em> of the crime.\u00a0 Id<\/span>. at 315.\u00a0 In short, it is fair to say that all crimes require some sort of \u201cgeneral intent.\u201d\u00a0 However, it does not follow that an instruction on general intent will be helpful to the jury.<\/p>\n The committee believes that \u201cgeneral intent\u201d is rarely an essential element of a crime, and that giving the instruction rarely adds to the jury\u2019s understanding of the case.\u00a0 In the unusual case where the defendant had no idea what was going on, then the defendant might have a valid defense that the charged act was involuntary.\u00a0 However, in most cases charging \u201cgeneral intent\u201d crimes, there is no issue over the defendant\u2019s intent in doing the act that the law has declared to be a crime.\u00a0 If a case does present such an issue, the court should consider instructions proposed by the attorneys.<\/p>\n For further discussion of this issue, see the notes regarding CR22-301 (Violation of Abuse Prevention Order).\u00a0 Also see the notes regarding CR27-031, where the committee has included a general intent instruction in the instructions for lewd and lascivious conduct under 13 V.S.A. \u00a7 2601.\u00a0 The Supreme Court has held that there is no essential element of specific intent for lewd or lascivious conduct, but it may be appropriate to include an instruction on general intent.<\/p>\n","protected":false},"excerpt":{"rendered":" The following instructions explain the various mental elements that may be included in the explanation of\u00a0a particular crime. CR06-001.\u00a0\u00a0Circumstantial\u00a0evidence\u00a0of intent or mental state (06\/23\/08).\u00a0 This instruction guides the jury regarding the use of circumstantial evidence to determine the defendant\u2019s mental … Continue reading