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| Would this truck lead to an acquittal? |
By Andy Delaney
We all know it's a bad idea to throw things at vehicles, though I do have a funny story about my brother chucking a Burger King milkshake at a car where the driver and his passenger totally deserved it. That's a story for another day, though. Mr. Redmond was accused of having thrown a prybar at a truck’s window. This is not a funny story.
A 16-year-old was driving the truck. The 16-year old testified that on a snowy February evening, he dropped some friends off at the end of a dead-end road. He turned around and as he was driving back, he encountered a man in the middle of the road. The man was holding something—possibly a sledgehammer or splitting maul. The driver moved to the right to try to avoid the man and the man threw the object at the windshield. The object shattered the glass and sprayed glass into the driver’s eyes. The driver lost control, went into a ditch, and the mystery man hid behind a tree. The driver was able to get the truck out of the ditch and went back to his friend’s house for help. The friend’s parents helped driver with his eyes. Someone called the police to report the object-throwing incident. At trial, driver testified that there were orange flecks on the windshield that weren’t there before.
Defendant also called the police shortly after to report erratic driving on the same road. The police looked for signs of erratic driving but saw stuff that was arguably more consistent with the 16-year-old driver’s story. There was a hole in the windshield where the driver’s head would have been with orange flecks. There were tracks in the snow that looked like a quick in-the-ditch-out-the-ditch incident as opposed to a drifting-all-over-the-place situation.
After speaking with the 16-year-old driver, the police spoke with defendant, who was hanging out at the neighbors’ place. The neighbors were brother and sister and defendant had been romantically involved with the sister. The plot thickens.
Defendant’s story was that the pickup-truck driver was driving erratically up and down the road all night and when he walked out to see what was going on, the driver tried to run him down—twice. This was why he hid behind a tree. The police didn’t buy it and pointed out that the tracks seemed to indicate defendant was being less than forthright about what happened. The police saw several sledgehammers in the garage of the place where defendant was hanging out, but they were all neatly hung up and put away. There was an odd prybar with a broken orange handle in the middle of the garage floor. The police didn’t seize the prybar immediately. They came back and got it two weeks later when the orange flecks in the windshield and the broken orange handle on the prybar “clicked” for one of the investigating officers.
Defendant and his friends (the neighbors) testified at trial. Neighbor brother testified—in apparent contradiction of his sworn statement to police—that a truck had been driving up and down the road erratically all night. He also explained that the prybar was his and he’d broken it the previous summer. He said it was on the floor of the garage because he’d used it a couple days before. Sister testified that she came downstairs after hearing a loud noise. Defendant was frantic and said someone had run off the road into a tree. It also turns out sister’s husband had a similar truck, and defendant was convinced that sister’s husband was out to get him. A tangled web indeed.
In rebuttal, the driver testified that he didn’t get to the road until 9:00 p.m. He also testified that the neighbor siblings had a reputation for untruthfulness in the community.
And so, defendant got convicted of reckless endangerment, unlawful mischief, and providing false information to a law enforcement officer. But the jury acquitted him of aggravated assault with a deadly weapon, aggravated assault, and obstructing traffic. That’s a bit of a mixed bag.
Naturally, defendant appeals.
First up, defendant argues that the court should have sua sponte (first Latin lesson of the day: “of its own accord”) acquitted him of the reckless-endangerment and unlawful-mischief counts because the State’s theory was that he threw a prybar at the windshield and, in his view, the State failed to prove that.
Because defendant didn’t make a motion for acquittal below, we’re in plain-error territory, or what I like to call ye mud-bog of affirmance. I probably could skip the analysis here because we all know where this is going to end up. But for the sake of clarity and completeness . . . SCOV reasons that the jury instruction (not objected to below) didn’t require the State to prove it was a prybar that defendant threw, and even if it was required to prove that, there was enough evidence to make the conviction stick anyway. So that’s that.
SCOV next turns to the false-information charge. Here, defendant raises a broad challenge to the sufficiency of the evidence. More specifically, he argues that the prosecution failed to identify what information he gave to the police was false. He also challenges the jury instruction, claiming that the trial court “collapsed” the mens rea (second Latin lesson of the day: “knowledge of wrongdoing”) element, turning the false-information charge into a strict liability crime.
We’re again in plain-error territory, but this time with a surprise ending. SCOV rejects most of defendant’s arguments without fanfare. However, SCOV concludes that the false-information jury instructions were inadequate to ensure unanimity. This is because “neither the charge nor the State’s trial evidence identified precisely what information the jury needed to evaluate with respect to this count.” In other words, defendant made multiple statements to the police, and there was no specific statement or statements identified in the charge or the evidence that would ensure the verdict was unanimous on what defendant gave false information about. Things just weren’t narrowed down enough. The instructions needed to explain for the jurors what information they needed to evaluate to determine if defendant gave false information. Because the instructions here didn’t do that, the false-information charge gets kicked back for a new trial.
Finally, SCOV reviews the jury instructions as they relate to the reckless-endangerment and unlawful-mischief charges. Again, with none of this raised below, we’re still in plain-error land. There are no surprises here, though there is some interesting discussion about the presumption of innocence (considered a piece of evidence in Vermont as many of you know) and in what order instructions need to be given. The trial court gave the presumption-of-innocence instruction at the beginning of a six-hour trial but didn’t repeat it in its final instructions. SCOV finds no plain or structural error here and affirms the reckless-endangerment and unlawful-mischief convictions.
So, for those keeping score at home: reversed and remanded for a new trial on the false-information charge; affirmed as to reckless endangerment and unlawful mischief.
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