### VERMONT SUPREME COURT Case No. 23

- AP

- 339

109 State Street Montpelier VT 05609

- 0801
802

- 828

- 4774 www.vermontjudiciary.org

Note: In the case title, an asterisk (*) i ndicates an appellant and a double asterisk (**) indicates a cross

appellant. Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.



### ENTRY ORDER

MAY TERM

, 2024

State of Vermont v. Jacob A. Smith* } APPEALED FROM: } } Superior Court, Bennington Unit

, Criminal Division } CASE NO. 21

- CR

- 07081 Trial Judge: Kerry Ann McDonald

- Cady

In the above

- entitled cause, the Clerk will enter:

Defendant appeals a conviction of aggravated as sault w ith a dead ly weapon fol lowing a jury trial

. On appeal, defendant argu e s that the State failed to prove b eyond a reasonable doubt
that he acted with the requisite intent and that the court committed plain error when instructing
the jury . We affirm.

At t ri al, the State presented evidence demonstrating the following

. Defendant rented an upstairs apartment in a building owned by complainant. C omplainant received a 3 a.m. tele ph one call fro m the downstairs tenants

, who reported that water was coming throug h the

c ei ling and one tenant had received an electr ic shock when turning on the lights

. In response,

c omplainant traveled to the building and turned off the water main in the b asement

. Compl ainant then went to defendant ’ s upstairs apar t me nt because it ap pear ed to be the source of
the water

. Based o n defendant ’ s prior statements, c omplainant believed that defendant was not
home

. Complainant entered the ap artment without knocking and went directly to the bathroom
where he found the tub f

ul l of clothes and the water overflowing.

While cleaning up, complainant re alized defendant was present in the apartment and
he ard him yellin g from the bedro om

. Compla inant mopped up the spilled water, returned to his
vehicle for his ph one, and took videos to document th e co ndition of the apartment

. Defendant continued to argue with complainant, told complainant he had COVID

- 19, and threw a mask at complainant

. De fendant also t hrew a beer can at complainant. D efe ndant went in to the ki tchen

, got a knife

, returned to the bed room , and laid the knife on t he gro und

. Complainant attempted to
take a picture of the knife, but defendant knocked the phone out of complainant ’ s hand s.2

D efendant then picked up the knife and b e g an trying to stab complainant in the legs

. D uring a

s trug gle over the knife, defendant cut complainant ’ s finger

. Complainant was a ble to leave the apartment, but defendant slammed the door on his arm. Complainant later noticed he had a “little spot ” o n his leg bu t was unable to determine whether it was fro m de fendant ’ s knife.

The State charged defendant with aggravated assault with a deadly weapon

. See 13 V.S.A. § 1024( a)(2) ( “A person is guilt y of aggravated assault if the person

. . . attempts to cause or purposely or knowingly causes bodily injury to anot her with a dea dly weapon

. ” )

. The State proceeded on theories of both attempted a nd completed bodily inj ury at tria l

. Following presentatio n of the State ’ s case, defendant move d f or judgment of acquittal arguing that there
was no evidence to show that he acted purposefully or knowingly to harm complainant. The court denied the motion, concluding that the evidence vie wed in a light most favor ab le to the State provided a suf

ficie nt basis for the jury to find b eyond a reasonable doubt that when
defendant sta rted stabbing towards complainant ’ s legs, he did so purposefully and knowingly to
in jur e or an attempt to cause inj ury

. The court also denied d efendant ’ s re newed motion for acquittal a t the close of the evidence.

In the jury instructions, t he crimin al d ivision did not charge the attempt ed and the completed act s se parately

, but instead as disjunctive elements of the same offense. Defendant did not objec t to t his approach and further agreed that the inst ructions d id not need to identify the alleged bo dily injury sustai ned by complainant. The jury convict ed defendant of aggravated assault with a deadly weapon. Defendant appe als.

D efendant first argues t hat the cr iminal division erred in denying his motion for judgment
of acquitt al

. To convict defen dant of a ggravated assault under § 1024(a )(2), the State had to

prove , among other things, that his act was done “ purposefully an d knowingly

. ” State v.

D ’ Ami co , 136 Vt . 153, 156 (1978)

. On review of a motion under Vermo nt Rule of Criminal
Procedure 29 fo r in sufficiency of the evidence , “we must consider whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evid ence, fair ly and reasonably tends to convince a reasonable trier of fact that the defendant is gui lty beyond a
reasonable doubt.” State v. Johnson , 2013 VT 116, ¶ 26, 195 Vt. 498 (quotation omitted )

. “ A judgment of acquittal is proper only if the prosecu tion has f ailed to put forth any evidence to
substantiate a jury verdict. ” Id

.

Here, w hen viewe d in a light most favorable to the State, the evidence was sufficient for the jury to find that defendant purposefully or knowingly caused or attempted to cau se injury to

comp l ainant

. “ Intent is rarely proved by direct evidence; it must be inferred from a per son ’ s acts and proved by circumstantial evidence. ” State v. Cole , 150 Vt. 453, 456 (1988)

. Defendant ’ s actions h ere included the following . Defendant e ngaged in aggressi ve and violent beha vior

to wards the complainant by yelling at him, thro wing a be er c an at him, brandishin g a kni fe, using
the knife to st ab t owards complainant ’ s leg s, grabbing complainant ’ s cell phone, struggling with complainant over th e knife, c ausing a n inj ury to complainant ’ s hand, and slamm ing the door on complainant ’ s arm. Fro m th ese facts, the jury cou ld infer that defendant had the necessary intent

to harm complainant. See State v. Dow , 2016 VT 91, ¶ ¶ 8 , 10 , 202 Vt. 616 (noting that attem p t

to as sault requires intent to commit assault and concluding circumstan tial evidence o f
de fendant ’ s behavior sufficient to find s pecific intent )

.3

D efendant appears to concede that the jury could find that he attempted to assault compla inant when he stab bed towards complainant ’ s legs but claims that the State failed to identify t his act a s the assault

. There was no error. The statut e refers to bodily inj ury; it does not require the State to identify which body part was injured or attempt ed to be i njured. In any

event, during the charge conference, d efendant agreed that the inst ructions d id not have to identify “ specifically, what the injury is in either the attempt or in the causation of the bodily injury

. ” Having ag reed to th at fram ework below, defendant is precluded from c halle nging it on appeal

. See State v. Morse , 2019 VT 58, ¶ 9, 2 11 Vt. 130 ( “ Defendant may not inject error into the proceedings by advocating for one type of jury instruction and then attempt to p rofit from the

l egal consequences of the error by challenging the same instruction on appeal

. ” (quotation
omitte d) )

.

In a related argument, d efendant contends that the court erred in instructing the jury by conflating the instructions for attempt ed aggr avated ass ault wi t h those for aggravated assault

. Defendant argues that by conflating the inst ructions, the cour t failed to identify the speci fic act

that constituted the assault  and did not provide the requ isite intent for att empted aggravated
assault. Defendant conced e s that he did not pre serve these objections below and claims that they

amoun ted to plain error

.

Plain error occu rs “ only in exceptional circumstances where a failure to recognize error
woul d result in a miscarriage of justice, or where there is g laring er r or so grave and serious that it strikes at the very heart of the defendant ’ s constitutional r ights

. ” In re Carter , 2004 VT 21, ¶ 21,
176 Vt. 322 (quotat ion omitted)

. “ Plain error analysis evaluates four factors: (1) there must be

an e rror; (2) the error must be obvious; (3) the error must affect substantial rights an d result in prejudice to the defendant ; and (4) we must correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings

. ” S tate v. Ca hill , 201 3 VT 69, ¶ 15, 194
Vt. 335 (quotation omitted)

. “ Plain error review of jury instructions asse sses the in structions as a
whole to determine if they breathe the true spirit of the law, a nd if there is no fair ground to say that the jury h as been mi sled

. ” I d . ¶ 14 (quotation omitted)

.

Taken as a whole, the jury instructions in this case provided suf ficient g ui dance to the jury on the elements of aggravated assault and attempted a ggravated assault. The court
delineated the elements , dire ct ing the ju ry that i t had to find defendant “ attempted to cause or caused bodily injury ” to complainant

, that he d id so “ pu rp osefully and know ingly

, ” and that he attempted or cause bodily inj ury by the use of a deadly weapon

. The cou rt further describe d
each element in detail , including explaining that an attempt “ requires an open physical act by [defendant] coupled with an i nt ent to commit the offense

. ” Finally, the co urt inclu ded a n unanimity instruction, direct ing the ju ry that a l l members had to agree on whether defendant caused injury or attempte d to cause injury and on the parti cular act

. Because t h ese instruc tions

 As explained above, on t his point, d efendant did not just fail to preserve the argument
below ; he affi rmatively conceded t hat the State was not required to i dentify a particular bodily injury . Having made that tactical decision at trial , he is precluded from now alleging error o n this bas is on appeal

.4

wer e not misleading and properly included all elements of the charged o ffenses , t here was n o plain error

.

A ffi rmed

.

BY THE COURT :

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice