Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-356

SEPTEMBER TERM, 2014

State of Vermont } APPEALED FROM:

}

} Superior Court, Franklin Unit,

 v. } Criminal Division

}

}

Timothy P. Perley } DOCKET NO. 1169-11-12 Frcr

Trial Judge: James R. Crucitti

In the above-entitled cause, the Clerk will enter:

Defendant appeals from a jury conviction of resisting arrest, arguing that there was 

insufficient evidence to convict him and that the prosecutor’s mischaracterization of the evidence 

requires reversal of the conviction. We affirm.

At approximately 11:00 in the evening of November 9, 2012, a state trooper observed 

defendant pull his vehicle into a neighbor’s driveway before reaching the trooper, who had 

pulled to the side of the road ahead of defendant because of his belief that defendant had 

committed a traffic violation. When no one exited defendant’s vehicle, the trooper activated his 

blue lights and approached the vehicle. The video camera in the trooper’s cruiser recorded what 

transpired over the next several minutes. The trooper observed defendant sitting in the front 

passenger seat of the vehicle. When the trooper asked defendant why he had moved to the 

passenger seat, defendant denied having done so. Upon smelling a strong odor of intoxicants, 

observing defendant’s watery and bloodshot eyes, and hearing defendant’s mumbled speech, the 

trooper ordered defendant out of the car, patted him down, had him perform dexterity tests, and 

gave him a preliminary breath test, which revealed a blood-alcohol concentration of more than 

twice the legal limit.

The trooper then informed defendant that he was under arrest. Defendant pleaded with 

the trooper not to arrest him. When the trooper attempted to handcuff him, a scuffle ensued, and 

the trooper threw defendant to the ground to subdue him. Defendant broke free from the 

trooper’s grasp and ran to the neighbor’s house yelling for help. The trooper used a Taser on 

defendant, to no avail. Eventually, after the neighbor came out and encouraged defendant to 

cooperate, the trooper was able to handcuff defendant and place him under arrest.

Defendant was charged with driving while intoxicated, resisting arrest, disorderly 

conduct, simple assault on a police officer, and escape from custody. The trial court dismissed 
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the escape-from-custody charge before trial. Following a one-day trial, the jury convicted

defendant of driving while intoxicated and resisting arrest but acquitted him of disorderly 

conduct and assault on a police officer. The trial court denied defendant’s motion for judgment 

of acquittal on the resisting arrest charge.

On appeal, defendant first argues that the trial court erred by denying his motion for 

judgment of acquittal because the evidence was insufficient for the jury to convict him of 

resisting arrest, considering the elements of the crime as instructed by the trial court. According 

to defendant, there was no evidence that defendant engaged in any specific conduct that 

amounted to an open physical act coupled with an intent to resist arrest. He contends that having 

his hands in his pocket and pleading with the officer not to arrest him was not an open physical 

act with intent to resist arrest sufficient for conviction under Vermont’s resisting arrest statute, 

13 V.S.A. § 3017(a).

In reviewing the trial court’s denial of a motion for judgment of acquittal, “we view the 

evidence in the light most favorable to the prosecution, . . . and determine whether the State’s 

evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.” State v. 

Devoid, 2010 VT 86, ¶ 9, 188 Vt. 445 (quotation omitted). Section 3017(a) criminalizes an 

intentional attempt “to prevent a lawful arrest [from]. . . being effected or attempted by a law 

enforcement officer.” The trial court instructed the jury, in relevant part, that it could convict 

defendant of resisting arrest only if it found that he intentionally attempted to prevent a lawful 

arrest. The court further charged the jury that an attempt to prevent a lawful arrest requires an 

open physical act coupled with a purposeful and conscious intent, which may be shown by 

expressions to others or conduct. The court stated that defendant’s mistaken belief as to the 

unlawfulness of the arrest could not be a defense to the charge, but that the officer would not be 

performing a lawful duty if he used excessive force in dealing with defendant prior to

defendant’s conduct giving rise to the charge.

In considering defendant’s motion for judgment of acquittal, the court, like the jury, had 

the benefit of not only the witnesses’ testimony but also the video recording of the incident taken 

from the cruiser’s camera. The court determined that defendant’s conduct of pulling away from 

the trooper and pulling his hands away to prevent the trooper from handcuffing him, after the 

trooper told him he was under arrest and directed him to put his hands behind his back, was 

sufficient to satisfy the elements of the crime and support the jury’s verdict.

We agree. Viewing the evidence most favorably to the prosecution, there was ample 

evidence, including the video recording of the incident, for the jury to determine that, upon being 

told that he was under arrest and to turn around, defendant pulled away from the trooper and 

attempted to prevent the officer from handcuffing him. Although defendant was wearing a 

heavy coat that likely complicated the trooper’s attempt to handcuff him, defendant’s actions 

were such that the jury could conclude beyond a reasonable doubt that he was intentionally 

attempting to interfere with the trooper’s attempt to handcuff him. Indeed, as he pulled away and 

attempted to prevent the trooper from handcuffing him, defendant repeatedly indicated that he 

did not want to be arrested.

Focusing on one sentence of the trial court’s oral ruling on his motion for judgment of 

acquittal, defendant contends that, contrary to its instruction to the jury on the elements of 
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resisting arrest, the court determined that merely not complying with the trooper’s request was 

sufficient to satisfy § 3017(a)—even without an overt physical act of resistance—thereby 

effectively shifting the burden of proof to the defendant to demonstrate that he did comply with 

the officer’s request. We disagree with this characterization of the trial court’s ruling. As noted, 

the trial court found that defendant’s actions in moving away from the officer while pulling his 

hands away to avoid being handcuffed was sufficient to support the jury’s conviction for 

resisting arrest.

Defendant also argues that the prosecutor’s mischaracterization during opening and 

closing arguments of what defendant said when the trooper attempted to handcuff him rises to 

the level of plain error and requires reversal of his conviction. Specifically, defendant argues 

that the prosecutor mischaracterized the evidence by stating to the jury during both opening and 

closing arguments that defendant had said “you’re not taking me” as he pulled away from the 

trooper. According to defendant, he never made such a statement, and the arresting officer never 

stated that he made such a statement. In his view, the prosecutor’s mischaracterization of the 

evidence was plain error requiring reversal because the alleged statement was not in evidence 

and directly affected the defense’s theory that he did not have the specific intent required to resist 

arrest. Cf. State v. Rehkop, 2006 VT 72, ¶¶ 38-39, 180 Vt. 228 (finding plain error where 

prosecutor during closing argument relied upon statements from another hearing to question 

credibility of defense witnesses and expressed his belief that defense witnesses lied, suggesting 

that he would have charged them with perjury but for difficulty of proving they could remember 

what they claimed not to be able to remember).

We find no plain error requiring reversal here. Id ¶ 37 (stating the finding plain error 

requires showing that error struck at heart of defendant’s constitutional rights or resulted in 

miscarriage of justice). The video recording of what defendant said at the critical moment is not 

entirely clear. When the trooper told defendant that he was under arrest, defendant pleaded with 

him not to arrest him, repeatedly stating, “Can we not do this?” For his part, the trooper 

repeatedly told defendant to turn around, and on two occasions stated, “Don’t make me fight 

you.” Finally, the officer again told defendant to turn around and attempted to turn him around. 

Defendant then pulled away, saying “No, I’m not. You’re not going to ____ me.” The missing 

word is not sufficiently audible on the video to establish it with any certainty. He may have said

“you’re not going to ‘fight’ me,” following on the statement of the officer, but it can be 

interpreted as saying “you’re not going to ‘take’ me.” 

In his closing argument, the prosecutor stated: “And then as you can clearly see and hear 

just before the officer lays his hands on the defendant he states you’re not taking me.” Defense 

counsel began his closing argument, in response to the prosecutor, by reminding the jury that the 

prosecutor’s interpretation of what defendant said—specifically, “you’re not taking me”—was 

not evidence and that the jury must go back and determine for itself what was actually said. In 

fact, the video recording was in evidence, and the jury could determine for itself what was 

actually said. Moreover, immediately before oral arguments and during its charge following the 

arguments, the trial court cautioned the jury that the arguments of counsel were not to be 

considered evidence. Under these circumstances, even if we found that the prosecutor misquoted 

defendant, we cannot conclude that there was plain error such as to warrant a new trial. Cf. State 

v. Broe, 146 Vt. 135, 140-41 (1985) (finding that prosecutor’s inaccurate statement as to 
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witness’s testimony was not plain error, given evidence against defendant and trial court’s 

repeated admonition that jury could consider only testimony of witnesses).

Affirmed. 

BY THE COURT:

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John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Beth Robinson, Associate Justice