Vermont follows what we sometimes call the "public domain" citation format. What this means is that following the case name, you'll have the year the case was decided, the two-letter state abbreviation, and the number of the decision for that year. Hence, the first decision SCOV issues this year is going to be 2025 VT 1. Surprise of all surprises, that is the decision that we're discussing today. And now you know almost everything you really need to know about public-domain citation without even asking the Google. You're welcome.
One case issued on Friday. It involves video, evidentiary issues, double jeopardy, and elements of crimes. Let's dig in.
Defendant was convicted after a jury trial of three counts of second-degree aggravated domestic assault and one count of felony unlawful mischief. His first claim of error is that the trial court screwed up in admitting a 911 caller's statement that he was beating the victim. Second, that a police officer's statement that the situation was "a wash" should have come in. Third, that the court should have on its own—or "sua sponte" if you want to sound all fancy—struck the complainant's testimony that the police had to tell her that she'd been assaulted. Fourth, defendant argues that two of the three counts of domestic assault should be barred by double jeopardy. Finally, he argues that the trial court's knowledge instruction on the unlawful mischief charge was wrong and that some of the alleged property damage shouldn't have come in on that charge.
The charges all stem from a dispute over a Selena Gomez song. There was arguing. A physical altercation. Complainant left for work. Defendant sent a bunch of texts. Complainant stressed out and came home from work. More arguing. Defendant tells complainant to move out. Defendant slams complainant's laptop shut and damages the screen. At some point, it's not clear when, neighbor calls 911. Complainant attempts to make a video. Defendant takes the phone. More violence and a hole in the wall. Defendant throws and breaks the phone. It's not a good scene. And defendant takes the stand and admits to a good amount of it.
Defendant is convicted on all counts. He appeals.
SCOV starts with the evidentiary issues. Defendant argues that SCOV should have kept out the neighbor 911 caller's statement because the caller couldn't have a personal-knowledge basis for the colloquially phrased statement the caller made about defendant beating the complainant. SCOV disagrees, concluding that the statement was rationally based on the caller's perception. Though defendant raises additional issues regarding relevance and probative value, SCOV gives those the ol' heave-ho with the classic, "Defendant failed to properly preserve these objections for our review."
On the "wash" statement from the police officer, the trial court reasoned that the defendant could introduce evidence that no arrest was made the night of, but excluded the officer's opinion that the situation was "a wash." What sayeth SCOV? "The court acted within its discretion in excluding the officer's statement."
On the police-had-to-tell-me-it-was-abuse piece—which came in response to a cross-exam question and got used by the defense in closing—we land in plain error territory. Because there was little to no attempt to correct the problem during the trial, SCOV isn't about to start now. SCOV basically says, even if it was an error, it hasn't "struck at the heart of [defendant's] constitutional rights or resulted in prejudice." No traction on the evidentiary issues.
On the double-jeopardy front, we are again in plain-error land. Here, SCOV reasons that there were three separate opportunities for defendant to formulate intent and despite the acts occurring in the same place, generally, and in the same day, there's enough of a break between events to separate the acts and meet the separate-intent-for-each-act test (SCOV refers to a 2019 case that I could have sworn we covered here, but I can't find it for some reason).
Finally, we turn to the unlawful mischief charge and its corresponding jury instruction. Here, defendant argues that the trial court gave the wrong intent instruction by using "knowingly" rather than "with intent to damage property." We're once again in the plain-error forest. It's the rare case that SCOV reverses a conviction based on a jury instruction under plain-error review. SCOV says: "We conclude that this is one of those rare cases because the instruction allowed the jury to find a lower standard of intent than required by the statute." And so, the unlawful-mischief charge gets reversed.
Because SCOV reverses the unlawful-mischief conviction, we don't get to defendant's arguments about what property damage should be considered on that charge.
SCOV affirms everything but the unlawful-mischief conviction. That one gets reversed and remanded for a new trial. State v. Lyddy, 2025 VT 1.
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