2013 VT 9


State v. Vuley (2011-087)
 
2013 VT 9
 
[Filed Feb-08-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 9

 

No. 2011-087

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Mark Vuley


March Term, 2012


 


 


 


 


Michael
  S. Kupersmith, J.


 

Thomas Donovan, Jr., Chittenden County State’s Attorney, and
Pamela Hall Johnson, Deputy
  State’s Attorney, Burlington, for Plaintiff-Appellee.
 
Mathew F. Valerio, Defender General, and Marshall Pahl,
Appellate Attorney, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.  What are the chances?  This case poses the
question of when that familiar rhetorical question is also a valid legal
inference.  Defendant was convicted of two counts of arson after four
unexplained fires occurred at his rented house within an eight-week
period.  The trial court itself relied upon—and instructed the jury that
it might rely upon—the fact that rare events like fires do not normally happen
together in order to infer that defendant willfully started the fires. 
Although we agree that there are potentially valid inferences to be drawn from
the multiplicity of fires, we cannot approve the trial court’s
instruction.  However, we affirm because the error does not rise to the
level of plain error.
¶ 2.            
In late 2008 and early 2009, defendant and his family rented a
single-family home with a detached two-car garage in Colchester.  Between
November 28, 2008, and January 18, 2009, the Malletts Bay Fire Department, as
well as the Colchester Police Department, responded to four separate fires at
that residence.  These fires represented four of the ten fires to which
the Malletts Bay Fire Department responded in all of 2008 and 2009.  
¶ 3.            
At around 1:00 p.m. on November 28, 2008, flames engulfed the detached
garage at defendant’s residence.  By the time the fire department arrived,
the fire had broken through the roof and was blowing out of the top of the
structure.  The fire destroyed the garage, but the fire department was
able to contain it and keep it from spreading further.  A neighbor
testified that before the firefighters arrived defendant was unsuccessfully
attempting to put the fire out with a small kitchen fire extinguisher. 
Responding officials described defendant as pacing, very upset, and near
tears.  He stated that he had no idea how the fire had started—one of the
officials testified that he explained: “I was spending the day watching Kiss
videos and getting loaded.”  Sure enough, firefighters made note of Kiss
videos playing on the television, and a preliminary breath test of
defendant revealed a blood-alcohol content (BAC) of .288.  An area
resident testified that, as he was watching the fire, defendant—visibly intoxicated—approached
him and said, “Good fire, huh?” and “So I did a good job, then, right?” 
Ultimately, the cause of the fire was considered “undetermined,” which was
explained at trial to mean that authorities were “unable to find a definitive reason
why that fire started,” because of the fire’s extensive destruction of any
physical clues.  Authorities investigated the possibility that the fire
might have been caused by burning leaves in the backyard, by faulty electrical
wiring in a garage light, or by an older refrigerator located in the garage,
but no physical evidence was present to confirm a particular theory.  
¶ 4.            
Approximately one month later, at roughly 6 p.m. on Christmas Day, the
fire department responded to a fire in a clothes dryer in the basement of
defendant’s residence.  The dryer was an older model and was heavily
loaded at the time of the fire.  Defendant’s wife testified that she had
started a large load of items in the dryer, including kitchen towels that defendant
regularly used to clean out the deep fryer.  At trial, the fire chief
testified that dryers can and do catch fire, but that inspection of this dryer
did not reveal any of the common malfunctions.  Vegetable oils were found
on some of the clothes, but no accelerants or other materials were present to
suggest that the fire was deliberately set.  Investigating officers said
defendant told them that he was the only one home at the time, that he was
doing laundry, and that he noticed smoke while he was watching television. 
The fire chief noted signs of intoxication in defendant’s behavior, and
defendant submitted to a preliminary breath test, which produced a BAC of
.210.  Once again, the cause of the fire was considered
undetermined.  
¶ 5.            
A little over one week later, at approximately 4 a.m. on January 5,
2009, a neighbor reported a fire on the enclosed porch of defendant’s
residence.  A Colchester police officer arrived at the scene before the
fire department, and he was able to contain the fire with the fire extinguisher
from his cruiser until the fire department arrived and fully extinguished
it.  The fire occurred in some odds and ends of pressure-treated lumber
that were stacked on the porch, which was undergoing some renovation.  At
trial, the police officer testified that defendant’s family members were the
only people in the house when he arrived, and a firefighter circled the house
and found no footprints in the snow.  The responding officer testified
that defendant stated that he had smoked a cigarette on the porch around
midnight and had seen nothing wrong.  Empties showed that defendant had
consumed nine 24-ounce cans of beer that night.  Because of the prior
fires, the state police fire investigator was called to the scene, and he ultimately
concluded that the fire was “intentionally set.”  This conclusion was not
based on physical evidence of the cause of the fire but rather on the fact that
“there were no other viable ignition sources in the area to explain how the
fire started.”  The investigator did consider the possibility that a
cigarette might have caused the fire, having found cigarette butts on the porch
and knowing that defendant and his wife were smokers.  In fact,
defendant’s wife testified that defendant smokes roughly a pack a day, that she
smokes five to ten cigarettes a day, and that both of them generally used the
porch as the area for smoking.  Nevertheless, the investigator ruled out
that cause based on defendant’s strong assertion that he had not dropped a
cigarette on the porch that day.  At trial, a defense expert disagreed
with the decision not to classify the cause of the fire as “undetermined,”
noting that there were easily ignitable materials and that “we have a man who
drinks a lot, smokes all over the place.”  
¶ 6.            
Finally, just after midnight in the early morning of January 18, 2009,
the fire department responded to another fire at defendant’s residence. 
By the time they arrived, the firefighters found the south side of the house
fully engulfed in flames.  The fire department was unable to prevent the
fire from completely destroying the residence and all of its contents. 
Defendant, who had been home alone, had apparently been forced to break a
window to escape the fire, and he had cut his hands on the glass, requiring
medical attention.  The only footprints found around the house were those
of defendant evacuating.  A police officer at the scene spoke to defendant
and noticed strong signs of intoxication.  Defendant told the officer that
he had consumed “ten or so beers,” at which point the officer took defendant
into protective custody, where a preliminary breath test indicated a BAC of
.155.  At trial, a state police fire investigator testified that the fire
started on the porch, just outside the kitchen.  The investigator was able
to rule out several possible causes for the fire, including electrical faults
and environmental ignition, and he was able to determine that “it came down to
human involvement somehow.”  He explained that “something had to be either
placed there or started there to make this fire go,” but he could not say
whether it was intentional or not.  Specifically, he noted that it was
possible for a cigarette to have started the fire.  The defense expert
stated that the cause of the fire should be classified as “undetermined,”
largely because it was not possible to rule out careless smoking as the cause
of the fire.  
¶ 7.            
The State charged defendant with four counts of first-degree arson,
alleging that he “willfully and maliciously . . . caused to be burned
[a] dwelling house . . . or other outhouse that is parcel thereof
. . . in violation of 13 V.S.A. § 502.”  Initially, the
State also charged him with four counts of setting a fire to defraud an insurer
in violation of 13 V.S.A. § 506.  However, although the family had
renters’ insurance that paid out on the first and fourth fires, defendant’s
wife insisted that defendant was unaware of the policy because she handled
matters of that nature.  In response, prior to trial, the State dropped
the four counts of setting a fire to defraud an insurer.  Also prior to
trial, the defense moved to dismiss all the charges for lack of a prima facie
case, see V.R.Cr.P. 12(d), and alternatively to sever all the charges for
separate trials.  The court denied these motions as untimely filed.  
¶ 8.            
At trial, the defense moved to dismiss all counts at the close of the
State’s case.  Defense counsel argued that, with regard to each count, the
State had failed to provide sufficient evidence to prove that the fire was
intentionally set and that intent could not be inferred from the other
fires.  In response, the State argued that the frequency of the fires—four
in eight weeks—showed that the fires were not accidental.  After pressing
the State, to no avail, for some legal authority to support its desired
inference, the judge introduced sua sponte the so-called “doctrine of chances,”
which the judge described as holding that “when you have an unusual number of
events that don’t normally occur accidentally, the jury can infer that they
occurred intentionally, and that’s exactly what we have here.”  The judge
referred the attorneys to People v. Mardlin, 790 N.W.2d 607 (Mich.
2010), State v. Allen, 725 P.2d 331 (Or. 1986), and State v. Lizotte,
109 Vt. 378, 197 A. 396 (1938).  On the basis of the doctrine of chances,
the trial court denied the motion to dismiss.  
¶ 9.            
The trial court also drafted a jury instruction based on the doctrine of
chances.  In full, the instruction read: 
 
In this case, there is evidence of four different fires at Mr. Vuley’s
home.  The defense claims that each of these fires was undetermined.[1]  It is your job to examine each
incident separately to determine whether the State has proved beyond a
reasonable doubt each of the elements of arson or attempted arson for each of
the fires. 
 
 
You may consider the meaning of the evidence that four different fires occurred
at Mr. Vuley’s house.  The weight to be given to evidence that four fires
occurred is left to your common sense and judgment.  You may, but are not
required to, apply the doctrine of chances, as follows.  Based on ordinary
common sense and human experience you may conclude that it is unlikely that
this number of similar accidents would occur on the same property in a short
period of time.  Considered in isolation, one fire may be easily explained
as an accident.  However, when all similar incidents are considered
collectively or in the aggregate, the doctrine of chances may create an
inference of human design.  You may conclude that the recurrence of
similar incidents incrementally reduces the possibility of accident.  The
improbability of a coincidence may cause you to conclude that the fires were
intentionally set.  
 
 
From the evidence of four separate fires, you may (but are not required to)
infer that the four fires were not the result of accidental or natural causes,
but were the willful act of some person.
 
At
the charge conference, defense counsel objected to this proposed
instruction.  Defense counsel began by pointing out that, in the three
cases cited by the court the day before, the other incidents were not the
subject of simultaneously pending charges.  When asked why this should
make a difference, defense counsel argued that the instruction “relieves the
State of its burden . . . to prove each and every element
of each and every crime.”  Ultimately, the court cut defense counsel off,
stating “Well, we agree to disagree and I’m going to include it.”  The
defense renewed the objection following the jury charge but did not elaborate. 

¶ 10.        
After deliberation, the jury acquitted defendant on the first two
counts, which related to the earlier incidents, but convicted on counts three
and four, which related to the later incidents.  Defendant appeals,
arguing that the trial court erred by (1) not granting the motion to dismiss,
(2) giving the jury instruction on the doctrine of chances, and (3) refusing to
grant the motions to sever and dismiss for lack of a prima facie case.  We
first consider the denial of the motions and then proceed to the issues
involving the doctrine of chances.
I.
¶ 11.        
The circumstances surrounding
the motions to dismiss and to sever are as follows.  The information to
commence this case was filed on September 30, 2009.  Status conferences
were held in October and November of that year, and then on January 26,
2010.  At the January conference, the parties filed a stipulated schedule,
with depositions to be conducted by May 1 and motions to be filed by May 15.
 The schedule could not be met, and at a May 11 status conference, the
court extended the deadlines, setting the motion deadline at August 13 and
ordering that the trial commence in September, with no further continuances.
 At a July 20 status conference, the parties reported that depositions had
not been completed and they would not be ready for trial in September. 
The court continued the trial date to November without resetting any other
deadlines.  At a status conference in October, the court set a new trial
date of December 6.  Thereafter, on November 17, defendant filed a motion
to dismiss for lack of a prima facie case or, if the prosecution was to
proceed, to sever all counts.  The court denied the motion as beyond the
deadline for motions—August 13—set at the May status conference and never
modified.  Thereafter, the court denied a motion for
reconsideration.  
¶ 12.        
Defendant argues on appeal
that the motion deadline had been impliedly extended, and it was an abuse of
discretion to deny the motion for reconsideration.  The two motions
defendant filed in November were pretrial motions.  See V.R.Cr.P.
12(b)(5), (d); Reporter’s Notes 1984 Amendment, V.R.Cr.P. 12(d); V.R.Cr.P.
14(b)(4).  Thus they were subject to the filing deadline of Vermont Rule
of Criminal Procedure 12(c), which is the date of the status conference
following arraignment, or twenty-eight days after arraignment if there is no status
conference, “unless extended by the court.”  V.R.Cr.P. 12(c). 
Failure to file motions by the applicable deadline in Rule 12(c) is a waiver of
the right to file the motion unless the court grants relief from the waiver
“for cause shown.”  V.R.Cr.P. 12(f); see State v. Dann, 167 Vt.
119, 136, 702 A.2d 105, 116 (1997). 
¶ 13.        
Defendant argues that there
was no waiver here because the trial judge who conducted the July status
conference, a different judge from the one who imposed the time deadlines, impliedly
removed the deadline for filing motions.  Defendant relies upon an
interchange in the status conference in which defense counsel stated that all
depositions could not be done by July 31, and the judge responded that she did
not care when the depositions were done.  Defense counsel then responded,
“[I]t drives everything out.  It drives the motion—and everything.” 
The exchange is vague, and defense counsel does not explicitly state that the
motion deadline cannot be met.  The court did not extend the motion
deadline, either orally or in writing.  In fact, the court continued the
trial date, but did not address the motion deadline.  We conclude that the
lawyers who were subject to a written court-imposed deadline bore the burden of
having it explicitly continued or removed.  The failure to do so here
meant that pre-trial motions could not be filed after the deadline.
¶ 14.        
Defendant urges us to reach
the same result by holding that the court should have granted the motion for
reconsideration.  The motion for reconsideration was premised on the
representation that the parties “asked the court for additional
time . . . to file motions” and the status conference judge
“granted the joint request.”  The court denied the motion for
reconsideration indicating that there was no entry that the status conference
judge had granted such a request and the motions were not timely filed. 
We note that there is no support in the record for the representation that the
parties requested that the motion deadline be extended and none for the further
representation that the court granted the request.
¶ 15.        
As defendant acknowledges,
the trial judge’s ruling was discretionary, and we will overturn it only on a
finding of abuse of that discretion.  Dann, 167 Vt. at 137, 702
A.2d at 116.  As we noted in Dann, the point of pretrial motions is
that the court should confront them before the court addresses the merits of
the case and the parties have commenced preparing for trial.  Id at
136, 702 A.2d at 116.  We also found important in Dann that the
only reason given for why the motion could not have been filed earlier was
weak.  Id. at 137, 702 A.2d at 116.  Here, defendant gave no
reason for why the motions could not have been filed earlier, and we can see no
reason in the record.  Defendant did not appeal to the discretion of the
trial judge, but argued the point that there had been no waiver, the argument
we rejected above.   We find no abuse of discretion.
¶ 16.        
The remaining two claims on
appeal directly involve the doctrine of chances.  Before reviewing them,
we first address the doctrine of chances.  The doctrine of chances has
evolved as a theory about the grounds for the admission of evidence. 
Evidence of other crimes or acts is not admissible to demonstrate a person’s
character for the purposes of showing that a person acted in conformity
therewith.  V.R.E. 404(b).  Against the backdrop of this prohibition,
the doctrine of chances purports to offer an explanation of the logical
relevance of other incidents that does not rely upon character-based
reasoning.  The classic articulation of the doctrine comes from
Wigmore:  
To prove Intent, as a generic notion of
criminal volition or willfulness, including the various non-innocent mental
states accompanying different criminal acts, there is employed an entirely
different process of thought.  The argument here is purely from the point
of view of the doctrine of chances,—the instinctive recognition of that
logical process which eliminates the element of innocent intent by multiplying
instances of the same result until it is perceived that this element cannot
explain them all. . . . [T]he mind applies this rough and instinctive process
of reasoning, namely, that an unusual and abnormal element might perhaps be present
in one instance, but the oftener similar instances occur with similar results,
the less likely is the abnormal element likely to be the true explanation of
them. . . . In short, similar results do not usually occur
through abnormal causes; and the recurrence of a similar result (here in the
shape of an unlawful act) tends (increasingly with each instance) to negative
accident or inadvertence or self-defence or good faith or other innocent mental
state, and tends to establish (provisionally, at least, though not certainly)
the presence of the normal, i.e. criminal, intent accompanying such an act . .
. .
 
1 J. Wigmore, Evidence § 302, at 611-12 (2d ed. 1923).  The logic
resonates with common sense.  As one court succinctly explained,
“The man who wins the lottery once is envied; the one who wins it twice is
investigated.”  United States v. York, 933 F.2d 1343, 1350 (7th
Cir. 1991), overruled on other grounds by Wilson v. Williams, 182
F.3d 562 (7th Cir. 1999).  An
archetypal example of the doctrine is the English case of Rex v. Smith,
11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), in which the defendant had three
wives who all suspiciously drowned while taking a bath.  The court held
that the other two deaths were probative with regard to whether the charged
death was an accident.  
¶ 17.        
The doctrine of chances is
regularly invoked in arson cases.  In fact, Professor Imwinkelried
illustrates the doctrine with a discussion of arson: 
Suppose
that the defendant is charged with arson.  The defendant claims that the
fire was accidental.  The cases routinely permit the prosecutor to show
other acts of arson by the defendant and even nonarson fires at premises owned
by the defendant.  In these cases, the courts invoke the doctrine of
objective chances.  The courts reason that as the number of incidents
increases, the objective probability of accident decreases.  Simply
stated, it is highly unlikely that a single person would be victimized by so
many similar accidental fires in a short period of time.  The coincidence
defies common sense and is too peculiar.  
 
1 E. Imwinkelried, Uncharged Misconduct Evidence § 4:1, at 4-6 to -9
(Rev. ed. 2008).  The cases upon which the trial court relied are examples
of this reasoning.  In Mardlin, for example, the Michigan Supreme
Court held admissible in an arson case evidence of four previous home and
vehicle fires—all of which involved insurance claims—associated with the
defendant.  790 N.W.2d at 610-11.  The present case poses the
open question of whether Vermont law similarly approves the inference described
by the doctrine of chances.[2]
 
¶ 18.        
Despite an illusory simplicity, the doctrine of chances faces a high
hurdle: the need to demonstrate specific, criminal intent.  Further, it
must do so without engaging in propensity reasoning, which is the claim that
because a person once engaged in certain criminal conduct, the person is more
likely to do it again.  A careful look at the doctrine of chances shows
that it actually describes a number of different inferences, some of which meet
the challenge and avoid propensity reasoning and some of which do not. 
The conflation of these various modes of reasoning under the same name is the
source of a great deal of confusion in the case law and the commentaries. 

¶ 19.        
The first inference that is described as the doctrine of chances might
be explained as follows: where independently improbable events occur together,
it is likely that some common cause exists that explains them all.  This
is actually a two-step inference.  First, one infers from the unlikelihood
of multiple improbabilities coinciding that something abnormal must be
present.  Second, one derives from the posited abnormality an explanation
of each individual incident.  That is, one first infers that not all
instances could be a matter of chance, and then infers that, if not all were a
matter of chance, then each one is more likely to have been not a matter of
chance.  For example, if ten children in a home die from an unusual
respiratory illness, one might infer that there is something in the house
causing the illness.  And this makes it more likely that any particular
case of respiratory failure in the house is caused by this underlying source,
as opposed to random misfortune.  We might call this the probabilistic
doctrine of chances.[3] 
Lightning doesn’t strike twice—unless there’s a reason.  
¶ 20.        
Defendant argues that the latter inference is not logically supported
and based his motion to dismiss on this argument.  He asserts that, even
if the objective probability of all the incidents occurring together is very
low, the probability of each individual incident is unaffected.  Flipping
heads ten times in a row is very unlikely—less than one in a thousand—such that
one might infer that there is something unfair about the coin or the coin
flipper.  But, as defendant correctly points out, this improbability does
not establish the same certainty that any particular flip, say the second one,
was unfair.  Our certainty that the collection of events was not random
will always be greater than our certainty that any individual event was not
random.  So far, we agree.  It does not follow, however, that no
evidentiary inference is possible as to individual flips.  Although we
cannot say that there was only a one-in-a-thousand chance that the second flip
was fair, we can say that there is some evidence that it was not
fair.  Given that it is highly unlikely that all the flips were random,
this makes it more unlikely that the second flip was random—not as highly
unlikely, but more unlikely.  This is because, insofar as we can infer the
presence of some sort of irregularity, it makes it more likely that such an
irregularity affected each individual instance.  This is the second stage
of the overall inference described above, and there is nothing improper about
this reasoning.  It does not relieve the State of its burden—it simply
acknowledges that the presence of other associated events may suggest a
defeasible hypothesis for explaining a particular, otherwise improbable
event.  After all, what are the chances?
¶ 21.        
Matters are somewhat more complicated, however, when this reasoning is
applied more specifically to multiple human actions over time.  Here, we
reach the hurdle of determining intent.  Explaining human action is what
is involved in the second form of inference described as the doctrine of
chances: where actions that might independently have been accidental occur
together, that makes it more likely that the acts were not accidental.[4]  This reasoning is simply an
application of the above-referenced probabilistic reasoning applied to human
action, and it has the same two-step form.  First, one infers that all of
the acts could not have been accidental—there must be something intentional
about some of this person’s conduct—and then one infers that this
intentionality likely explains each particular incident.  For example, if
a man shoots three different wives and asserts that each shooting was
accidental, one might infer that not all of them could have been accidents and
that, more likely, the man has intentionally killed all of them.  As we
already said, drawing this inference is logically supported.  This is
simply the probabilistic doctrine of chances applied to human behavior. 
¶ 22.        
Nevertheless, we conclude that this second form of inference is
generally impermissible.  The barrier is that, although logically
relevant, probabilistic reasoning about human behavior of the form necessary to
the second step runs afoul of the prohibition against using propensity-based
reasoning.  Inferring from the implausibility of all occurrences being
accidents that any particular occurrence was not an accident necessarily
involves reasoning based on propensity.[5] 
Consider the above example.  From the series of shootings, one can infer
that it is unlikely that the killings were all accidents.  This is
logically equivalent to the conclusion that at least one of the killings was
not an accident.  But it would be an inference based on propensity to say
that, because a man has intentionally killed a wife, he is therefore
more likely to have intentionally killed this wife.[6]  For this reason, in In re S.G.,
we rejected an attempt—based on the same section in Wigmore—to introduce
evidence of abuse of one child to show that an unexplained broken bone in
another child was less likely to be an accident.  153 Vt. 466, 471, 571
A.2d 677, 680 (1990); see also State v. Lipka, 174 Vt. 377, 397 n.11,
817 A.2d 27, 43 n.11 (2002) (reiterating reluctance to adopt Wigmore rationale). 
This is not, of course, to deny that there is a logical chain of inference in
such cases.  The whole point of the propensity-based prohibition in
Vermont Rule of Evidence 404[7]
is that it excludes evidence that is logically relevant.  When one applies
the probabilistic doctrine of chances to human behavior, one gets a logically
valid inference, but one that is based on human propensity to act in conformity
with other bad acts—precisely what the rule of evidence does not allow.[8]  
¶ 23.        
While the general prohibition against propensity-based evidence might,
at first blush, suggest that the doctrine of chances cannot be used, there is a
valid third and altogether different inference that goes under the header of
the doctrine of chances: where someone has already committed an unusual
act with bad consequences, it is more likely that subsequent acts of
that type were not accidental.[9] 
This inference is based on the understanding that people learn from their
mistakes.  If someone has accidentally done something with terrible
consequences, then that person becomes less likely to do that same thing
accidentally a second time.  The person is likely to have a heightened
awareness of the consequences and therefore is less likely to be
careless.  For example, a man who accidentally shot his first wife will be
less likely than an average person to accidentally shoot his second wife. 
As a result, one can infer that a subsequent shooting—especially one under
distinctly similar circumstances—is less likely to be inadvertent and therefore
more likely to be intentional.  We might call this the psychological
doctrine of chances.  To see the difference, note that the probabilistic
doctrine of chances would find it more likely that each improbable incident was
not an accident, whereas the psychological doctrine of chances would apply to
primarily explain subsequent incidents.[10] 
Note that the psychological doctrine of chances provides no inference that the
first incident was not an accident.
¶ 24.        
There is nothing impermissible about the inference involved in the
psychological doctrine of chances.  Essentially, this reasoning treats the
past incidents not as bad acts attributable to the defendants, but as events
that would affect defendant’s knowledge and mental state.  When introduced
for this purpose, the previous fires serve essentially the same purpose as when
prior bad acts are used to show intent or knowledge.  See V.R.E. 404(b); In
re S.G., 153 Vt. at 471, 571 A.2d at 680 (noting that, although
impermissible to infer abuse, “the earlier incident would raise skepticism that
the mother was unaware that S.G.’s symptoms were caused by a broken
leg”).  In this form, the doctrine of chances is less about cosmic
happenstance and more about the relevance of individual history to a person’s
mental state.  We have no difficulty concluding that the latter is an appropriate
sort of evidence for a jury to consider.  
II.
¶ 25.        
Against this backdrop, we consider the application of the doctrine of
chances to this case.  Courts are often confused by the difference between
these three types of inference.  This confusion is compounded where, as
here, the factual situation introduces the possibility of all three forms of
inference and there is no obvious motive for the alleged crimes.  First,
it is highly implausible that the four fires were simply unrelated freak accidents:
an electrical problem, a dryer malfunction, combustion in some spare lumber,
and so on.  Something unusual was going on in defendant’s house.  To
the extent that defendant maintained that his household was just extremely
unlucky, the doctrine of chances is a basis for rejecting this
explanation.  The doctrine provides a reason why the other fires are
probative to the individual counts.  This much, however, is compatible
with the thought that the fires were nonetheless accidental—it does not get the
State specific criminal intent.  
¶ 26.        
One might use the doctrine of chances in the second way in order to
suggest that even accidental ignition is implausible as an explanation for all
of these fires.  Defendant is surely not the only heavy-drinking smoker in
Colchester, but his residence accounted in two months for forty percent of the
structural fires over a two-year span.  From this perspective, it is
unlikely that they were all simply accidents—and therefore it is likely that
some or all of them were not accidents.  Although logically relevant, this
proposition cannot be used to infer that defendant is guilty of causing a
specific individual fire.  Such an inference would involve propensity
reasoning: because defendant likely started some fire intentionally, he is an
arsonist that started all fires intentionally.  If the multiple fires were
viewed as probative solely based on  this reasoning, we must consider the
result erroneous.
¶ 27.        
On the other hand, the psychological version of the doctrine might be
used to shed doubt on any theory that the third or fourth fire was caused
accidentally.  Someone who has had two or three fires at his home in the
span of a month should be much less likely to toss around cigarettes
cavalierly.  While the chance of starting a house fire may generally be so
remote that someone might fail to pay it adequate attention, it is hard to
imagine that defendant, after experiencing multiple recent fires, could have
been similarly unaware.  In this way, the previous fires make it less
plausible that this was mere carelessness.  Thus, the earlier fires are
probative of lack of accident.  Of course, their probative value would
have to be weighed by the jury against countervailing evidence.  In
particular, heavy drinking makes carelessness more likely.  But this does
not mean that the previous fires are not relevant to whether the ignition was
intentional, only that their relevance must be weighed alongside other facts by
the jury.  In short, the other fires do provide some evidence regarding
defendant’s mental state.
¶ 28.        
The jury heard the details of all four fires.  The potential
relevance of the multiple fires was brought out at various points.  Over
the objection of defense counsel, the State opened an entire line of questioning
on redirect of the fire chief discussing the improbability of so many fires at
one location, in which the fire chief explained, “One fire, completely
believable.  Two fires, wicked bad luck.  Three fires, no
way. . . . [M]ost homes don’t burn once, let alone three
times.”  Another firefighter spoke about the peculiarity of three fires at
one location, stating that “it was extremely unusual for there to be three
fires at the same address.”  Under the doctrine of chances, the jury did not
have to be shielded from evidence of the multiple fires, and, in this case, the
jury was not shielded.  
III.
¶ 29.        
We turn now to the issues on appeal, which implicate the doctrine of
chances.
A.
¶ 30.        
The first issue is whether the trial court erred in denying defendant’s
motion for a judgment of acquittal, relying upon the doctrine of chances. 
We conclude that the trial court did not err in denying the motion for a
judgment of acquittal.  We review de novo a motion for a judgment of acquittal. 
State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. 
The question is whether the State has produced evidence that could reasonably
support a guilty verdict.  See State v. McBurney, 145 Vt. 201, 204,
484 A.2d 926, 928 (1984) (“[T]he sole issue raised by a motion for judgment of
acquittal is whether the State’s evidence fairly and reasonably tends to show
the defendants’ guilt, so that a jury would be justified in finding guilt
beyond a reasonable doubt.”).  
¶ 31.        
Reviewing the evidence in a light favorable to the State, we conclude
that a jury could have concluded that defendant intentionally set the third and
fourth fires.[11] 
With regard to both fires, the state investigators essentially testified that they
could rule out causes not involving human action, but that they could not
completely rule out accidental causation.  The inability to rule out
accidental causation was the basis for the defense’s motion for
acquittal.  
¶ 32.        
We conclude that the State presented sufficient evidence to survive a
motion for judgment of acquittal with respect to counts 3 and 4.  There
was evidence that the third and fourth fires were intentional—namely, the
improbability of accident in light of the other fires.  This inference,
which could support a guilty verdict on these counts, is based on the
psychological doctrine of chances, applicable given that defendant had
experienced two recent fires at his house.  One could reasonably expect
him to be particularly vigilant against creating another fire.  “A
judgment of acquittal is proper only if the State has failed to put forth any
evidence to substantiate a jury verdict.”  State v. Turner, 2003 VT
73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (mem.).  We conclude that such was
not the case here.  The evidence of the other two fires may have been only
circumstantial proof of intent and it may have been counterbalanced by the
evidence of defendant’s drinking habits, but these are matters of weighing the
evidence appropriate for the jury.  There was no error in permitting the
jury to engage in this enterprise.  
¶ 33.        
Defendant also contests the element of identity with respect to the
third fire, arguing that the evidence was insufficient to prove that he was in
fact the person who set this fire.  In support of this assertion,
defendant argued very cursorily in his motion for a judgment of acquittal that
he was not home alone during the third fire as he was during the remaining
fires.  
¶ 34.        
We conclude that the State did not need to rely on the doctrine of
chances or on an impermissible inference about defendant’s character to
establish identity.  There was sufficient evidence presented at trial from
which the jury could permissibly infer that defendant was the person who
started this fire.  See State v. Kerr, 143 Vt. 597, 603, 470 A.2d
670, 673 (1983) (“[P]roof of facts includes reasonable inferences properly
drawn therefrom.”).  As stated above, defendant was physically present
when all of the fires started, and he was home alone for three of the four
fires.  He made statements to a neighbor after the first fire, including
“Good fire, huh?,” and “So I did a good job, then, right?”  Defendant was
unemployed and depressed.  He was intoxicated when officials responded to
each fire.  During the third fire, there was evidence that defendant had
consumed nine 24-ounce cans of beer.  There was expert testimony that the
third fire was intentionally set.  There were no footprints in the snow
around the house to support the notion that an outsider had set the fire. 
Defendant’s wife testified that she had had not been smoking in the area where
the fire started.  From this circumstantial evidence, the jury could
reasonably infer that defendant set the fire in question.  
¶ 35.        
While it is true that there were other family members at home during the
third fire, “the State is not required to exclude every reasonable hypothesis
of innocence in proving a case with circumstantial evidence.”  State v.
Warner, 151 Vt. 469, 472, 560 A.2d 385, 387 (1989).  “So long as the
jury by way of a process of rational inference could conclude beyond a
reasonable doubt that defendant committed the acts for which he was charged, we
will not disturb the jury’s verdict.”  State v. Godfrey, 2010 VT
29, ¶ 18, 187 Vt. 495, 996 A.2d 237 (quotation omitted).  We conclude that
the State’s evidence met this standard here.  
B.
¶ 36.        
The propriety of the jury instruction presents a more difficult
question.  As an initial matter, the State points out that, although
defense counsel objected to the jury instruction during the charge conference,
defense counsel did not reassert the nature of the objection after the
instructions had been read.  “No party may assign as error any portion of
the jury charge or omission therefrom unless he objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to which he
objects and the grounds of his objection.”  V.R.Cr.P. 30. 
Accordingly, the State contends that the objection to the jury instruction has
not been preserved.  Defendant replies that defense counsel’s statement,
“I would like to renew my objection to the doctrine of chances,” was sufficient
to satisfy the preservation requirements, particularly in light of the discussion
at the charge conference.  
¶ 37.        
We cannot agree.  Our cases make clear the requirement of making an
objection to jury instructions after the jury is charged.  State
v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992) (“[F]ailure to
object to an instruction after it is given to the jury is considered a waiver
of any error even if the substance of the objection is made known before the
jury charge.” (emphasis added)); see also State v. Bacon, 163 Vt.
279, 284, 658 A.2d 54, 59 (1995) (instruction error not preserved because “it
was not specifically renewed after the charge.”); State v. Pelican, 160
Vt. 536, 538, 632 A.2d 24, 25-26 (1993).  As we have explained, “The
primary reason for the rule is to give the trial court one last opportunity to avoid
an error.”  Wheelock, 158 Vt. at 306, 609 A.2d at 975; see also Jones
v. United States, 527 U.S. 373, 387-88 (1999) (applying identical Federal
Rule of Criminal Procedure 30).  While an objection at a charge conference
may help explain a complying objection made after the charge is delivered to
the jury, it is not a substitute for the complying objection.
¶ 38.        
As for defense counsel’s renewal of the objection with no explanation of
the grounds after the jury was charged, it was insufficient.  Rule 30
plainly demands that, before the jury retires, a party must “stat[e] distinctly
. . . the grounds of his objection,” not merely the objection
itself.  Here, defense counsel’s cursory renewal, without any statement of
grounds, did not comply with Rule 30.  Although counsel may have believed
that the content of the objection was already well rehearsed, Rule 30 requires
at least a brief restatement.  See State v. Martin, 2007 VT 96, ¶
42, 182 Vt. 377, 944 A.3d 867 (rejecting defendant’s argument that “a general
objection to the court’s instruction sufficiently preserved the issue for
appeal”); Winey v. William E. Dailey, Inc., 161 Vt. 129, 138, 636 A.2d
744, 750 (1993) (decided under substantially identical civil rule and holding
that “a blanket reference made after the charge to arguments made before the
charge, even if allowed by the trial court,” is not sufficient for
preservation).[12] 
The deficiency in the language of the objection here is clearly shown by
contrasting it with the language of the objection to the jury instructions in
the recent case of State v. Kolibas, 2012 VT 37, 191 Vt. ___, 48 A.3d
610.  In that case, the defendant attacked a criminal-intent instruction
because it allowed a finding of intent if defendant intended to harm someone
other than the actual victim.  Defense counsel said after the instruction
was delivered: “We object to the instruction of intent regarding the aggravated
assault charges, that the State does not have to prove there was an intent to
harm a specific individual.”  Id. ¶ 12. We held that “defendant
made a detailed objection to the court’s instructions on transferred intent,
and this issue is clearly preserved for review” because defense counsel stated
a ground for the objection—that the instruction provided that the State did not
have to prove there was an intent to harm a specific individual.  Id. 
The objection in Kolibas would have been equivalent to the objection in
this case if it had omitted the last phrase and said only that defendant
objected to the intent instruction regarding aggravated assault.
¶ 39.        
Here, the deficiency in defense counsel’s objection is particularly
significant because of what occurred at the charge conference.  Defense
counsel was clear at the charge conference that she opposed the giving of the
doctrine of chances instruction but less clear on the grounds.[13]  She argued that it was
inappropriate to use the doctrine as a jury charge, rather than as a rule of
evidence.  She claimed the doctrine would allow the jury to find intent
for each fire solely because there were four fires.  She generally claimed
that the instruction would relieve the State of its burden of proof and deny
her client due process of law.  She argued that the doctrine could rest on
uncharged misconduct evidence but not on charged conduct because the latter had
to be proven beyond a reasonable doubt.  As she developed her objection,
the trial judge interrupted and said that they—the judge and the defense
attorney—would have to agree to disagree, ending the discussion.  We
concur with defendant that an argument truncated by the trial court is normally
sufficient to preserve unstated grounds for objection.  See People v.
Boyette, 58 P.3d 391, 412 (Cal. 2002) (holding there was preservation where
“[d]efense counsel made several objections that were cut off by the trial court
before counsel could articulate fully the grounds of his objection”). 
However, the issue here is not whether defense counsel preserved the ground for
her objection at the charge conference, but instead whether she preserved the
grounds after the instruction was read to the jury.  Not having been able to
fully state the grounds at the charge conference reinforced the need to state
them fully after the charge was given.  Instead, defense counsel stated no
grounds.  
¶ 40.        
Because defendant failed to comply with Rule 30, we review only for
plain error.[14] 
See State v. Doleszny, 2004 VT 9, ¶ 10, 176 Vt. 203, 844 A.2d 773
(explaining that objections not properly renewed will be reviewed only for
plain error).
¶ 41.        
At the outset, we conclude that the jury instruction on the doctrine of
chances did constitute error.  First and foremost, we conclude that the
instruction, as given, was not a correct statement of the law as explained in
this opinion.  A jury charge will be upheld “[i]f the charge, taken as a
whole and not piecemeal, breathes the true spirit of the law, and if there is
no fair ground to say that the jury has been misled.”  State v. Gokey,
136 Vt. 33, 36, 383 A.2d 601, 602 (1978); see also State v. Rounds, 2011
VT 39, ¶ 30, 189 Vt. 447, 22 A.3d 477 (holding that permissive-inference
instruction constitutes error where it misstates legal rule involved allowing
inference to be drawn that is not legally authorized).  In this case, the
jury instruction did not carefully explain the legitimate and improper use of the
doctrine of chances.  The instruction did not clearly delineate which of
the three different versions of the doctrine was proper and did not
specifically instruct that the jury could not use propensity reasoning to
determine whether defendant was guilty with respect to a specific fire. 
Indeed, the jury could have understood that it was permissible to find guilt
based on propensity.  For example, the instruction states, “The
improbability of a coincidence may cause you to conclude that the fires were
intentionally set.”  But this follows only if one infers from the fact
that the fires likely were not all accidents to the conclusion that each fire
was not an accident—an inference that makes logical sense, but only to the
extent one believes human behavior tends to be consistent such that a criminal
cause for one fire is likely to explain other fires.  This is propensity
reasoning.  We do not dispute that the evidence of the other fires is
relevant and admissible in this case.  But we are not convinced that the
jury instruction, as given, properly tracked the theory according to which it
was admissible.
¶ 42.        
Second, even if the instruction had clearly delineated which of the
versions of the doctrine was proper, the trial court should not have given any
instruction on the doctrine of chances.    The doctrine of
chances is about the admissibility of evidence, which is not generally a matter
in which the jury should be instructed.  See V.R.E. 104(a).  It is
illuminating that, although the doctrine of chances is a relatively well-worn
legal concept, we have not found a single case in which it has been used as a
basis for a permissive-inference jury instruction.  The concern is that
explaining why evidence has been admitted, and the inference that can be drawn
from the evidence, risks encouraging the jury to give the evidence additional
weight.  For this reason, we recently found error in a jury instruction on
the admission of evidence in State v. Brandt, 2012 VT 73, ¶ 21, ___
Vt. ___, ___ A.3d ___.  As in Brandt, the charge here specially
explained the admissibility ruling, describing to the jury how they could use
the evidence.  The jury had the evidence of the other fires; there was no
reason for the trial court to highlight its potential significance.  See State
v. Tahair, 172 Vt. 101, 108-09, 772 A.2d 1079, 1085 (2001) (emphasizing
difference between what jury might infer on its own and what it might conclude
when evidence is highlighted by jury instruction). 
¶ 43.        
Having concluded that the instruction constituted error, the question
becomes whether it rises to the level of plain error.  See State v. Lambert,
2003 VT 28, ¶ 13, 175 Vt. 275, 830 A.2d 9 (rejecting argument that flawed jury
instruction was error per se).  We recently itemized the elements of plain
error with respect to a jury instruction:
Four
factors guide our plain error analysis: (1) there must be an error;
(2) the error must be obvious; (3) the error must affect substantial
rights and 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.  When reviewing possible error in
a jury instruction, we examine the instructions in light of the record evidence
as a whole and determine if any error would result in a miscarriage of
justice. Moreover, we review the instructions in their entirety. If the charge
as a whole is not misleading, there is no plain error.  This is a
very high bar—we find plain error only in rare and extraordinary
cases. 
 
State v. Herrick, 2011 VT
94, ¶ 18, 190 Vt. 292, 30 A.3d 1285 (citations omitted).  In Rounds,
2011 VT 39, ¶¶ 32-34, we recently found plain error because of a jury
instruction that erroneously allowed the jury to use a permissive inference and
misstated the elements of that inference.  We noted that “[t]he
instruction as given allowed the jury to look past defendant's theory and infer
his criminal intent based on insufficient or nonexistent evidence, all to his
direct prejudice.”  Id. ¶ 33.  We concluded that the
instruction seriously affected the integrity of the jury verdict, noting that
“[i]f the jury relied on the erroneous inference in determining the knowledge
element of the crime, it failed to find defendant guilty of all elements of the
crime beyond a reasonable doubt” and “the instruction provided the jury
a path to convict defendant that was not supported by the evidence and was
contrary to the statute's dictates.”  Id. ¶ 34.
¶ 44.        
We cannot find plain error in this case.  It is not a rare and
extraordinary case.  Although the jury instruction could have resulted in
prejudice for defendant and a miscarriage of justice, we can only speculate
that it did, and, in fact, the jury verdict is consistent with the proper use
of the doctrine of chances.
¶ 45.        
Our main concern with the jury instruction is that it allowed the jury
to convict defendant based on propensity reasoning—because of the number of
fires, defendant must be an arsonist and, as an arsonist, he intended to start
each fire.  But the split jury verdict is strong evidence that the jurors
did not engage in such reasoning—otherwise they would have convicted defendant
for each fire.  The acquittal of the charge from the first incident is
particular evidence that the jury saw the doctrine correctly, since the
psychological doctrine of chances could not be used to create an inference that
defendant’s act was intentional the first time.  Thus, conviction for the
latter two fires is in line with the third, and valid, version of the doctrine
of chances.  It also suggests that the jury was influenced by the State’s
expert testimony which found a human cause for the last two fires, but not for
the first two.
¶ 46.        
While there are significant similarities between this case and Rounds,
there are significant differences.  In Rounds, the permissive
inference was statutory, and there was a dispute over whether the basic facts
were shown sufficiently to allow the jury to find the inferred intent.  We
held that Vermont Rule of Evidence 303 required that the basic facts be proved
beyond a reasonable doubt when the inferred intent is an element of the offense
and the jury instruction failed to require this standard of proof.  Id.
¶ 27.  More importantly, we further held that the key basic fact was not
proved beyond a reasonable doubt as a matter of law so the statutory permissive
inference should not have been included in the jury instruction.  Id.
¶ 29.  The errors were of constitutional dimension because the permissive
inference allowed the State to prove its case without proof beyond a reasonable
doubt.  Id. ¶ 32.
¶ 47.        
While we hold here that the court should not have given the
permissive-inference instruction, the concern is not of constitutional
dimension.  Instead, our primary concern is that the jury might have given
too much weight to what is properly understood as an evidence-admission
rule.  Again, the split jury verdict shows that the jury did not give
undue weight to the instruction.  
           
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 48.        
ROBINSON, J., dissenting.  I do not contest the majority’s
thoughtful exposition and organization of the varied applications of the
“doctrine of chances,” nor its legal conclusions concerning acceptable versus
unacceptable inferences in the face of repeated similar incidents.  I
dissent because I believe the majority’s conclusion that defendant did not
preserve his objection to the court’s doctrine-of-chances instruction is
incorrect, and the majority’s reliance on a plain error standard is therefore
unwarranted.  Moreover, given the majority’s acknowledgment that the
erroneous instruction in this case permitted the jury to draw an impermissible inference
regarding defendant’s intent (and thus guilt), I cannot agree given the
circumstances of this case that the instruction was not plain error.
I.
¶ 49.        
At the charge conference on the last day of trial, immediately before
closing arguments, the trial court presented proposed jury instructions and
invited objections.  Defendant objected at length to the court’s proposed
“doctrine of chances” instruction.  Distinguishing the various cases upon
which the court relied in proposing the instruction, defendant noted that in
all of those cases the other incidents supporting the doctrine-of-chances
theory were uncharged.  The trial court interrupted counsel to ask why
that distinction made a difference.  Defendant explained that the court’s
invitation to the jury to infer intent in connection with the four fires
“relieves the State of its burden.”  Counsel continued:
The
State has a burden to prove each and every element of each and every crime, and
by saying that they can infer from the fact that there were other fires in
which Mr. Vuley was not—has not even been proven guilty relieves the state of
its burden and you . . . .
 
¶ 50.        
The court again interrupted, and defense counsel and the court had
multiple backs-and-forths about various other cases.  In the course of
counsel’s attempt to explain again why the proposed instruction was
objectionable, the court and counsel had the following exchange:
[DEFENSE
COUNSEL]: Well, you—you stated to the jury that the fact that the defendant is
charged with a crime is not itself proof of guilt.
 
THE
COURT: Correct.
 
[DEFENSE
COUNSEL]:  By—by allowing the Doctrine of Chances in, you’re essentially
saying the fact that Mr. Vuley is charged with four counts of arson you can
infer that—intent from that.
 
THE
COURT: Not true.  It’s not an accurate statement.  
 
¶ 51.        
 Defendant went on to note other distinctions between cases cited
by the trial court and this case.  For example, counsel argued that, in
one case relied upon by the court, the defendant had admitted to setting a
prior fire and the evidence was admitted because it showed a similar
method.  The court dismissed defendant’s argument, noting that cases are
always factually distinct.  When counsel argued that the instruction would
violate defendant’s due process rights, the court responded:
[F]rankly,
I think it’s very logical which, you know, there’s—there’s certainly been some
evidence of criminal agency at least as—in terms of at least two of these
fires, and what the Doctrine of Chances says is that if the jury finds that
something has occurred which doesn’t occur accidentally very frequently but the
evidence shows that it has happened frequently, which I think there’s certainly
evidence that, in the broad scheme of things, that’s the situation here, you
can infer a criminal agency from that alone.  That’s—that’s what the
Doctrine of Chances says.  And on three of these four occasions, Mr. Vuley
was home alone.  
 
¶ 52.        
  Defendant further argued:
Your
Honor, I would argue that this—the Doctrine of Chances applies to admission of
evidence and doesn’t apply to four counts that are pending that the jury has to
determine and that the State has the burden of proof, and beyond a reasonable
doubt all four . . . .  
 
The court interrupted and said,
“Yeah.  Okay.  Well, we agree to disagree and I’m going to include
it.  Anything else?”
¶ 53.        
The parties delivered their closing statements immediately after the
charge conference, and the court instructed the jury right after that.  At
the close of the instructions, defense counsel stated, “Your Honor, I would
like to renew my objection to the Doctrine of Chances.”  Counsel also
objected to the court’s instruction that defendant claimed that the cause of
the four fires was accidental when in fact his position was that it was
undetermined.    
¶ 54.        
The majority concludes that defense counsel’s renewal of her objection
to the instruction was insufficient to preserve the objection pursuant to
Vermont Rule of Criminal Procedure 30.  Rule 30 requires: “No party may
assign as error any portion of the charge or omission therefrom unless [that
party] objects thereto before the jury retires to consider its verdict, stating
distinctly the matter [objected] to . . . and the grounds of [the]
objection.”    
¶ 55.        
Defense counsel’s extended pre-charge discussion with the court of
defendant’s objections to the charge is relevant to our analysis of the
preservation question.  The majority suggests that the basis for defendant’s
objection was not clear in the pre-charge conference.  I respectfully
disagree.  Over the course of counsel’s back-and-forth with the court
regarding the doctrine-of-chances instruction, filling more than five pages of
transcript, defendant repeatedly argued that the instruction allowed the jury
to infer defendant’s guilt on all four charges on the basis of the fact that
there were four charged fires.  Although the trial court ultimately cut
off defendant’s argument by clearly indicating that the discussion was over, it
did so only after defendant repeatedly reiterated his objection to the
impermissible inference permitted by the court’s proposed instruction and the
effective elimination of the State’s burden of proof as a result.  That is
the very basis on which the majority now acknowledges the instruction was
erroneous.  
¶ 56.        
The majority suggests that defense counsel did not adequately articulate
the grounds for defendant’s objection because she did not describe the
impermissible inferences as “propensity reasoning.”  Ante,
¶ 36 n.13.  But “propensity” is a buzzword that describes a certain
sort of inference.  Defense counsel did one step better than simply
stating the buzzword; counsel focused on the impermissible inference described
by that term.  
¶ 57.        
The majority contends that defendant’s renewal of the objection after
the jury instructions was inadequate, and describes the renewal as “cursory”
and “buried among other arguments.”  In fact, the first words out of
defense counsel’s mouth following the jury instruction were, “Your Honor, I
would like to renew my objection to the Doctrine of Chances.”  Given how
little time had passed between defense counsel’s extended conversation about
this objection with the court—a conversation that was ultimately cut off by the
court with a firm indication that the court had heard the objection, understood
the objection, and made up its mind—this renewal was more than sufficient to “afford the trial court an opportunity to correct any error
or oversight it might have made in the instructions.”  State v.
Lettieri, 149 Vt. 340, 342-43, 543 A.2d 683, 685 (1988).  The court
has such an opportunity where the defendant fully identifies the objectionable
issue and the trial court responds to that objection.  See Briggs v.
Marshall, 93 F.3d 355, 359 (7th Cir. 1996) (recognizing defense counsel’s
“mighty skimpy” on-the-record statement “they are either going to find some
money or not,” while not best practice, was sufficient to preserve much
greater, substantive objections made off record in chambers because it
effectuated purpose behind rule “to alert the judge to their reasons for
objecting, so that the court may resolve legal disputes with full information
and avoid all errors that are avoidable”); Martell v. Universal Underwriters
Life Ins. Co., 151 Vt. 547, 552-53, 564 A.2d 584, 588 (1989) (recognizing
role of charge conference in informing sufficiency of post-charge objection
(citing 9 C. Wright & A. Miller, Federal Practice & Procedure
§ 2554, at 648 (1971) (“No particular formality is required so long as it
is clear that the trial judge was informed of possible errors and was given an
opportunity to correct them.”))).
¶ 58.        
The Vermont cases on preservation are not as severe as the majority
suggests.  We have analyzed two types of Rule 30 cases: those in which the
defendant makes no objection at all after the jury charge, and those in which
defendant makes a post-charge objection and the question before us is the
sufficiency of that objection to preserve a particular argument.  In the
former set of cases—those in which a defendant failed to object at all
after the jury charge—we have consistently found no preservation and have,
thus, conducted a plain error analysis.[15] 
See, e.g., State v. Myers, 2011 VT 43, ¶ 18, 190 Vt. 29, 26 A.3d 9 (reviewing jury instruction for plain
error due to defendant’s failure to “restate his objection per Rule 30”); State
v. Hinchliffe, 2009 VT 111, ¶ 33, 186 Vt. 487, 987 A.2d 988 (treating
failure to object post-charge as waiver of objection); State v. Schreiner,
2007 VT 138, ¶ 35, 183 Vt. 42, 944 A.2d 250
(concluding defendant did not preserve issue where defendant failed to object
after reading of instruction).
¶ 59.        
In the latter set of cases, where there has been a post-charge
objection, we have deemed the objection preserved except when the objection
left ambiguity as to what defendant was asking, when defendant’s objection was
too general, or when defendant specified a claim of error below different from
that argued on appeal.  Our guiding principle in such cases has been to
serve the goal Rule 30 was designed to advance: to give the trial court “one
last opportunity to avoid an error.”  See Wheelock,
158 Vt. at 306, 609 A.2d at 975.
¶ 60.        
In several cases we have held that defendants’ objections were too
ambiguous to prompt the appropriate, corrective response from the trial
court.  See, e.g., State v. Massey, 169 Vt. 180, 188-89, 730 A.2d
623, 629 (1999) (describing defendant’s post-charge objection as “cryptic,”
considering what defendant might have meant, and noting that defendant had
failed to propose alternative instruction that “would have made his position
clear to the court”); State v. Crosby, 124 Vt. 294, 296-97, 204 A.2d
123, 124-26 (1964) (holding that where defendant requested instruction on “the
inferences [the jury] may draw,” but declined to elaborate on what inferences
he had in mind, and refused multiple requests by court for proffered
instruction, objection was not preserved).  In these cases, this Court has
recognized the importance of fairly and reasonably indicating to the trial
court “the particulars in which such instructions were claimed to be in error.” 
Id. at 297, 204 A.2d at 126.  However, there is no indication in
either of the above decisions that the thrust of the defendants’ objections was
apparent on the basis of prior discussions, or that the trial court understood
the objections.  In these cases, the objections were genuinely nebulous
and inadequate to give the court a chance to fix the problem, if any. 
¶ 61.        
This Court has concluded that defendants did not preserve the objections
raised on appeal where they only objected generally to the instructions or they
objected to another aspect of the instructions distinct from their
objections on appeal.  See State v. Martin, 2007 VT 96, ¶ 42,
182 Vt. 377, 944 A.2d 867 (“None of defendant’s objections related to the link
between defendant’s intoxication and the accident, and furthermore we find no
general statement of objection to the charge.”); State v. Covino, 163
Vt. 378, 381, 658 A.2d 916, 918 (1994) (where defendant objected to charge that
allowed conviction for kidnapping “by misrepresentation” on grounds that
“misrepresentation” is too ambiguous and is not supported by case law, he did
not preserve argument that instruction was error because prosecutor charged
“kidnapping by force” rather than “kidnapping by inveiglement”); State v.
Valley, 153 Vt. 380, 398, 571 A.2d 579, 588 (1989) (defendant “bound by the
specifics of her objection” at trial, and, therefore, more generalized
objection to instruction not preserved for appeal following narrower and more
specific objection); State v. Hicks, 148 Vt. 459, 464, 535 A.2d 776, 778
(1987) (defendant did not make objection urged on appeal at charge conference
or after jury instruction, so objection was not preserved); State v. Kerr,
143 Vt. 597, 606-07, 470 A.2d 670, 674-75 (1983) (defendant’s general objection
inadequate as he never offered additional cautionary instruction urged on
appeal, and did not specify error in instruction).  All of these cases
involved arguments on appeal about jury instructions on grounds not
specifically urged below.  These cases did not involve objections that
were clearly delineated below and referenced moments later after the jury
charge; the trial courts in the above cases did not have sufficient notice of
the errors that were subsequently argued on appeal to take timely action to
prevent the error.
¶ 62.        
In contrast, we have found post-charge objections to be sufficient to
preserve arguments for appeal when the court understood the specifics of the
objection.  See, e.g., State v. Swift, 2004 VT 8A ¶ 11,
176 Vt. 299, 844 A.2d 802 (rejecting state’s claim that post-charge objection
was not sufficiently specific where defendant identified offending language and
further stated that issue of credibility—affected by objected-to language—went
to heart of defendant’s case); State v. Moffitt, 156 Vt. 379, 380, 592
A.2d 894, 895 (1991) (rejecting claim that defendant’s objection to language in
jury instruction was not sufficiently specific where defendant’s pre-charge
arguments meant “court knew the exact language defendant wanted and rejected
it”).  
¶ 63.        
We recently considered a lack-of-preservation argument very similar to
this case.  We found preserved an objection squarely on point with the one
in this case.  State v. Kolibas, 2012 VT 37, 191 Vt. ___, 48 A.3d
610.  In Kolibas, defendant was charged with aggravated assault for
drugging his minor daughter and her friend.  Defendant mounted a mistake
defense—he had intended to drug his wife, not his daughter and her
friend.  During the charge conference, defendant opposed any instruction
on a theory of transferred intent.  After the charge, defendant reiterated
the objection, saying, “We object to the instruction of intent regarding the
aggravated assault charges, that the State does not have to prove there was an
intent to harm a specific individual.”  On appeal, the State contended
that defendant’s “objection was not sufficiently detailed to preserve the issue
for review under” Rule 30.  Id. ¶ 12.  We found this to
be a “detailed objection” clearly preserving the issue for appeal.  Id. 
In so concluding, we pointed to the lengthy debate about the issue in the
charge conference and to defendant’s repeated objections therein.
¶ 64.        
The majority relies on three cases to support its conclusion.  In Wheelock,
we considered the objection preserved despite defense counsel’s failure to
object after the reading of the charge because the judge told the parties that
all objections made during the charge conference were being preserved and that
they need not renew the objections.  158 Vt. at 306, 609 A.2d at
975.  In Wheelock, we made it clear that a post-charge renewal of
objections is required, even when the trial court says otherwise.  Because
there was no post-charge objection in Wheelock, this Court did not
consider the adequacy of the post-charge objection.  We described the
primary reason for the rule—“to give the trial court one last opportunity to
avoid an error.”  Id.  We noted that the practice makes our
review easier because “objections during a charge conference often are vaguely
worded and are interspersed during lengthy discussion,” and we often do not
have in the record copies of the proposed instructions given to counsel to
discuss at the charge conference.  Id.  I agree that Wheelock
is a pivotal case on this issue, but conclude that the post-charge objection
here is the type of “succinct” post-charge objection that is sufficient under Wheelock. 

¶ 65.        
The majority also cites a civil case,[16] Winey v. Dailey, for the proposition
that the sufficiency of the stated grounds requires something more than is
present here.  161 Vt. 129, 636 A.2d 744 (1993).  Winey is
another failure-to-object case with the twist that the court told the parties
that all charge conference objections would be preserved as in Wheelock. 
Plaintiff made a general objection at the end of the two-day,
300-page-transcript charge conference: “And we have stated our basis
yesterday.  I won’t reiterate it now, but I do want to reincorporate now all
the arguments I made on those various points and I won’t waste the Court’s time
further.”  Id. at 137, 636 A.2d at 749.  We would not accept
such a blanket reference as sufficiently specific to preserve the issues for
appeal.  Id. at 138, 636 A.2d at 750.  This case is very
different.  Defense counsel here did not purport to make a general
“all-previous-objections” sort of objection; she specifically identified the
instruction that was the subject of his objection.  The charge conference
discussion of the challenged instruction in this case was not buried in a deep,
prolonged record distant in time from the renewal of his objection; in this
case, the court conducted a charge conference, delivered the jury instructions,
and then entertained post-charge objections all in one session, without breaks.
¶ 66.        
Finally, the majority relies on State v. Rounds, another
failure-to-object case.  2011 VT 39, 189 Vt. 447, 22 A.3d 477.  As in
Wheelock, this case involved a failure to make any objection at all following
the jury charge.  Defendant conceded his failure to preserve.  We
reviewed for plain error.
¶ 67.        
I see no basis in this record for concluding that the trial court did
not have ample notice of defendant’s arguments, or that if defense counsel had
only repeated that the objected-to instruction allowed an impermissible
inference of guilt one more time after the charge the trial court would have
had more of an opportunity to correct the error.  And I believe the
majority’s opinion stretches Rule 30 beyond our existing case law in a way that
does not promote the rule’s underlying goals.  I cannot join the
majority’s conclusion that defendant’s conviction—and his sentence of
five-to-ten years—should stand on the basis of an excessively restrictive
application of Rule 30. 
II.
 
¶ 68.        
In arguing the preservation point, I do not concede the majority’s
conclusion that the instruction was not plain error.  In this case, the
jury could easily have concluded that the repeated fires resulted from defendant’s
carelessness rather than design given his chronic state of intoxication
combined with his smoking habit.  The court’s instruction called special
attention to an alternative, impermissible inference—one that would rest a
finding of guilt with respect to a specific fire on impermissible propensity
reasoning.  This is exactly the kind of instruction we have deemed to be
plain error because it effectively allowed the jury to convict without finding
defendant guilty of all elements of the crime beyond a reasonable doubt. 
See Rounds, 2011 VT 39, ¶ 32 (court’s instruction improperly
allowing permissive inference of defendant’s intent plain error).  
¶ 69.        
The majority identifies the elements of plain error: error that is
obvious, affects substantial rights and results in prejudice, and seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.  Ante, ¶ 40.  The majority concedes that the
instruction was error and does not assert that it was not obvious.  The
plain error argument seems to falter in the majority’s analysis on the
questions of whether the error affects substantial rights and results in
prejudice to the defendant, and whether it affected the fairness, integrity or
public reputation of judicial proceedings.  
¶ 70.        
In assessing prejudice, the majority states, “Although the jury
instruction could have resulted in prejudice for defendant and a miscarriage of
justice, we can only speculate that it did, and, in fact, the jury verdict is
consistent with the proper use of the doctrine of chances.”  Ante,
¶ 41.  We can never know exactly why the jury did what it did, but a
defendant need not read the jurors’ minds in order to establish plain
error.  In Rounds we found plain error in a jury instruction that
improperly permitted the jury to draw an inference about defendant’s intent
when the State had not established the requisite factors underlying the
statutory permissive inference; this Court found prejudice not because we
concluded that the jury had in fact impermissibly relied on the improper
inference, but on the ground that the court’s instruction allowed the
jury to do so.  2011 VT 39, ¶ 33 (“The instruction as given allowed the
jury to look past defendant’s theory and infer his criminal intent based on
insufficient or nonexistent evidence, all to his direct prejudice.”).  
¶ 71.        
Likewise, in Rounds, in considering whether the instruction
seriously affected the integrity of the jury verdict, this Court wrote:
By allowing the jury to infer defendant's intent by way of
an instruction that should never have been given and failed to announce the
proper standard, the jury “may have relied upon the presumption rather
than upon the evidence” and thus convicted defendant based on a standard less
rigorous than the Constitution or the statute at issue require. Because the
errors could have affected the jury’s deliberation, and we cannot know
what they decided or how they decided it, we find plain error in this
instruction.
Id. ¶ 34 (emphasis
added).  The majority’s reasoning here turns this analysis on its head,
suggesting that because the instruction may not have influenced the jury, it
was not prejudicial.
¶ 72.        
The majority then goes a step further, offering its own speculation, based
on the jury’s acquittal in connection with the first two fires, that the jury
did not, in fact, use the impermissible propensity-based inference but, rather,
invoked what the majority calls the “psychological doctrine of chances.” 
The jury’s split verdict is equally consistent with an application of
propensity-based reasoning coupled with reasonable doubt with respect to the
first two fires because the jury found the alternate explanations for those
fires plausible, albeit speculative.  The majority is right that the jury
may well have reached its verdict applying reasoning that is fully consistent
with the law; but the jury also may well have reached its verdict on the basis
of the very impermissible inference the majority so perceptively identifies. 
The majority’s speculation is not a proper basis on which to sustain a
conviction in the face of such a critical and conceded error.
¶ 73.        
In this case, defendant’s intent in setting the fires, if the jury
concludes he did so, is very much in dispute, and the evidence supports an
alternate narrative in which defendant was a causal agent in setting one or
more of the fires but lacked the criminal intent necessary to support the
conviction.  Under these circumstances, the jury instruction inviting the
jury to draw an impermissible inference about defendant’s intent cuts to the
core of this case and creates a serious risk that the jury convicted defendant
without finding all the essential elements to convict beyond a reasonable
doubt.  I do not see how the majority can reconcile its no-plain-error
holding with this Court’s recent analysis in Rounds.  

 


 


 


 


 


 


 


 


Associate Justice

 
 





[1] 
The original instruction given to the jury instead contained the sentence, “Mr.
Vuley claims that each of the fires was accidental.”  After the
instructions were given, defense counsel noted that this implied that defendant
had offered a particular account, and the judge agreed to give the jury a
revised instruction with the above-quoted replacement sentence.  


[2]  This Court has adopted superficially similar reasoning in State v.
Lizotte, where we wrote:
 
  The mere fact of the
burning of a building is not sufficient to establish the corpus delicti, for if
nothing more appears, it will be presumed that the fire was the result of
accident or some providential cause, rather than the result of a criminal
design.  But the incendiarism may be proved by circumstantial evidence.  
 
 
Here we have the evidence that there were three simultaneous
fires. . . . [The two fires in the house could not have been
caused by a stove or by the barn fire.]  These facts were amply sufficient
to permit the jury to find that the three fires were not the result of
accidental or natural causes, but were the willful act of some person.
 
109 Vt. 378, 385-86, 197 A.
396, 399 (1938) (citations omitted).  As defense counsel correctly
distinguished, however, that case did not involve multiple incidents, but
rather one charged incident and an inference as to the cause of that single incident. 
The multiplicity of starting locations was used to infer that a fire was
intentionally caused, the same way that the presence of accelerants might
be.  The question in this case is different: may a jury infer from the
presence of other separate fires before or afterwards that a particular charged
fire constituted arson?


[3] 
As examples make clear, this use of the doctrine of chances arises where the
inference is used to shed doubt on the likelihood of some natural
accident.  See State Farm Fire & Cas. Co. v. Allied & Assocs.,
860 F. Supp. 2d 432, 440 (E.D. Mich. 2012) (“Properly applied, the ‘doctrine’
dispels the idea that serial unusual events can be dismissed as coincidence, and raises suspicion calling for further
investigation.  But to support the inference of concert of action or
conspiracy, more is required.”); United States v. Graham, 50 M.J. 56, 62
(C.A.A.F. 1999) (“The fact of a prior positive-drug test provided a more
complete picture of appellant’s drug history and undermined his credibility
with respect to his denial of the current charges.  After all, the jury
was entitled to know that appellant was in reality asserting that he was struck
by lightning twice.”); Robbins v. State, 88 S.W.3d 256, 268 (Tex. Crim.
App. 2002) (“[E]vidence that Tristen repeatedly suffered physical injuries
while she was in appellant’s care increases the probability that Tristen’s
injury on the day of her death was the result of some act, careless or
otherwise, committed by appellant.”).
 


[4] 
Although courts do not always distinguish the inference being made, some
applications of the doctrine clearly have this second form.  See, e.g., State
v. Monroe, 364 So. 2d 570, 573 (La. 1978) (allowing evidence of subsequent
similar killing the following night where defendant claimed that both killings
were self-defense); Brown v. State, 96 S.W.3d 508, 512 (Tex. Ct. App.
2002) (“When the defendant’s intent to commit the offense charged is at issue,
the relevance of an extraneous offense derives from the doctrine of chances—the
instinctive recognition of that logical process which eliminates the element of
innocent intent by multiplying instances of the same result until it is
perceived that this element cannot explain them all.  An unusual or
abnormal element might be present in one instance, but the more often it occurs
the less likely it is to be the true explanation.” (citations omitted)).  
 


[5] 
Some commentators have recognized this point.  See A. Morris, Federal
Rule of Evidence 404(b): The Fictitious Ban on Character Reasoning from Other
Crime Evidence, 17 Rev. Litig. 181, 201-03 (1998) (“The very process of
eliminating (or reducing to a negligible level) the odds that the charged act
was accidental necessarily involves the assumption that the defendant’s
character is constant.  This is so because the bad act evidence supports
the finding of intent only if one assumes that the character traits that can be
inferred from the uncharged misconduct evidence are continuing.  We cannot
eliminate that assumption and still treat the accumulation of evidence of
repeated incidents of misconduct as probative. . . . [W]e assume
that all of the outcomes are alike.  This requires the assumption of
continuity of character, or classic propensity reasoning.”); P. Rothstein, Intellectual
Coherence in an Evidence Code, 28 Loy. L.A. L. Rev. 1259, 1262-63 (1995)
(“The essence of this probable guilt argument is that there is a disparity
between the chances, or probability, that an innocent person would be charged
so many times and the chances, or probability, that a guilty person would be
charged so many times.  If there is such a disparity,
however, it is only because a guilty person would have the propensity to repeat
the crime.  If it were not for the propensity to repeat, the chances, or
the probability, that an innocent person and a guilty person would be charged
repeatedly would be identical.  Hence, the argument hinges on propensity
and runs afoul of the first sentence of Rule 404(b).”); see also State v.
McManus, 594 N.W.2d 623, 631 (Neb. 1999) (noting “the apparently flawed
reasoning underlying the doctrine of chances”).
 


[6] 
There is a difference from the prototypical propensity reasoning.  In the
prototypical case, one reasons from the fact that a man murdered that
wife to the fact that he murdered this wife.  In this case, one reasons
from the fact that a man murdered a wife (possibly that one, possibly
this one) to the fact that he murdered this wife.  But this difference is
not significant.  The purpose of the prohibition on propensity reasoning
is to ensure that a defendant is not convicted on the basis of conduct other than
that charged.  For essentially the same reason, we do not allow a
conviction to be based on general evidence of wrongdoing, but rather require
proof of wrongdoing on a particular occasion.  See, e.g., State v.
Bonilla, 144 Vt. 411, 413, 477 A.2d 983, 985 (1984) (“[W]here there is
evidence of many acts, any one of which would constitute the offense charged,
an election must be made.”).  Defendant’s conviction on each count of
arson cannot be based on evidence that he intentionally caused a fire,
but requires proof that he intentionally caused the particular fire in
that count.  
 


[7]
 We are not here attempting to explain the purpose and scope of Evidence
Rule 404(b).  We are merely explaining how the two-step reasoning in the
doctrine of chances employs propensity reasoning.
 


[8] 
Despite this inference from guilt in general to guilt in a particular case, a
number of courts and commentators assert that the doctrine of chances does not
involve impermissible propensity inferences.  See, e.g., E. Imwinkelried, An
Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding
a Non-Character Theory of Relevance, the Doctrine of Chances, 40 U. Rich.
L. Rev. 419, 437 (2006) (arguing that doctrine of chances does not involve
judgment of “the defendant’s personal, subjective bad character”).  This
insistence is normally based on the idea that the doctrine of chances concerns
only “objective probability” and not any character assessment.  See, e.g.,
York, 933 F.2d at 1350 (“This inference is purely objective, and has
nothing to do with a subjective assessment of [the defendant’s] character.”); Green
v. State, 89 So. 3d 543, 557 (Miss. 2012) (Dickinson, J., concurring)
(stating that use of evidence under doctrine of chances “is based on
probability, not propensity”); People v. Breidenbach, 798 N.W.2d 738,
745 n.23 (Mich. 2011) (“The doctrine of chances creates a non-character basis
for the admission of evidence of other acts when the other acts are related to
the offense charged in such a way as to make it objectively improbable that all
the acts were accidental and probable that at least one of them was the result
of an actus reus.”).  This explanation fails to distinguish the two stages
of the inference.  The first stage states that it is objectively
improbable that all the events were accidental.  But the second stage
involves inferring that the same thing, namely criminal intent, explains an
individual event.  Without this second stage, the doctrine would shed no
light on any particular charged crime.  But see Imwinkelried, An
Evidentiary Paradox, supra, at 456-57 (“It is significant that the
only conclusion flowing directly from doctrine of chances reasoning is that one
or some of the incidents were not accidents.”).
 This second stage only makes sense if one assumes that someone who has
committed a crime once is more likely than an average person to have committed
that same crime in another circumstance.  Even if—as a matter of
statistical probabilities—this is correct, it is a prohibited basis for
inferring guilt.  See C. Goodman, The Color of Our Character:
Confronting the Racial Character of Rule 404(b) Evidence, 25 Law &
Ineq. 1, 10 (2007) (“While probability statistics are useful to predict and to
explain human behavior, the reliance upon generalizations and characterizations
leads to impermissible propensity inferences when dealing with other crimes
evidence in the category of intent, absence of mistake, or accident.”).  Propensity
reasoning does not become permissible by virtue of being backed by objective
probabilities.  The objective/subjective distinction is a red herring
here.  
 


[9]  Although courts are not generally
careful in distinguishing this third form of reasoning from the second, this
thought appears to be the driving influence in many applications of the
doctrine of chances.  See, e.g., People v. Robbins, 755 P.2d 355,
362 (Cal. 1988) (“The inference to be drawn is not that the actor is disposed
to commit such acts; instead, the inference to be drawn is that, in light of
the first event, the actor, at the time of the second event, must have had the
intent attributed to him by the prosecution.”), superseded by statute on other
grounds; State v. Craig, 361 N.W.2d 206, 213 (Neb. 1985) (holding
that evidence of fifteen previous incidents in which defendant had disrobed
adopted daughter made implausible his claim that disrobing and inappropriate
touching was accidental in course of playfulness); State v. Stager, 406
S.E.2d 876, 891-93 (N.C. 1991) (explaining that doctrine of chances could be
applied to shed doubt on wife’s claim that she accidentally shot her husband
with .25-caliber semi-automatic pistol where her first husband died in same
way); Scott v. State, 720 S.W.2d 264, 267 (Tex. Ct. App. 1986) (“The
plausibility of appellant’s defensive theory [that he accidentally exposed
himself to twelve-year-old girl] is greatly reduced, however, when it is
learned that seventeen days before his ‘accidental’ encounter with [the girl],
he had ‘accidentally’ been seen by the female attendant of a convenience store
while using the store’s restroom.”).  Some commentators’ descriptions of
the doctrine also seem to have an element of this thought.  See, e.g.,
Imwinkelried, Uncharged Misconduct Evidence, supra, at 5-16 (“The
doctrine teaches us that the more often the defendant performs the actus reus,
the smaller is the likelihood that the defendant acted with an innocent state
of mind.  The recurrence or repetition of the act increases the likelihood
of a mens rea or mind at fault.”); 22 C. Wright & K. Graham, Federal
Practice and Procedure § 5247, at 518 (1st ed. 1978) (“Often the absence of
mistake or accident is proved on a notion of probability; i.e., how likely is
it that the defendant would have made the same mistake or have been involved in
the same fortuitous act on more than one occasion.  The relevance of other
crimes for this purpose depends very much on the nature of the act involved;
one might inadvertently pass more than one counterfeit bill but two accidental
shootings of the same victim seem quite unlikely.”).
 


[10] 
This is not to say that it leaves no logical inference about the first incident
because we might infer that the person did not learn from the first incident
because it was not accidental.  This third version of the doctrine of
chances might explain the actions of the jury which convicted on counts 3 and 4
but acquitted on counts 1 and 2.  An alternative explanation, however, is
that the later two fires were the ones for which the State’s experts
definitively ruled out nonhuman ignition sources.  


[11]
 The jury acquitted defendant of the arson charges with respect to the
first and second fires.  We need not, and do not, decide whether the
evidence was sufficient to avoid the motion to dismiss on the first two counts.


[12]
 Vermont Rule of Criminal Procedure 30 is identical to Federal Rule of
Criminal Procedure 30 as originally adopted.  See Reporter’s Notes,
V.R.Cr.P. 30.  The United States Supreme Court intentionally made the
criminal rule on jury trial instruction objections the same as the civil
rule.  See Advisory Committee Note, F.R.Cr.P. 30 (“on a point such as
instructions to juries there should be no difference in procedure between civil
and criminal cases”).  We did the same.  Thus, a civil case on point
is applicable to our application of Rule 30.
 


[13]
 The State argues that none of the grounds stated at the charge conference
are the same as the grounds asserted on appeal.  Because we find there was
no preservation under Rule 30, we do not reach this argument.  We do note,
however, that defense counsel did not argue at the charge conference that the
doctrine of chances, as charged, allowed the jury to use propensity
reasoning.  In fact, defense counsel did not challenge any of the specific
language of the charge, arguing instead that no instruction on the issue should
be given.
 
Although not central to our decision, we do not accept
the dissent’s argument that defense counsel objected in the charge conference because
the charge allowed propensity reasoning, but used different language.  See
post, ¶¶ 52-53.  As we have held, application of the doctrine
of chances can rest properly on nonpropensity reasoning that persons use more
care when there has been a similar occurrence with bad results.  See supra,
¶ 23.  Defense counsel never separated the permissible inference from the
impermissible inference and challenged the latter.
 


[14] 
The State argues that any argument that the instruction constituted plain error
has been waived because defendant’s brief on appeal did not argue it.  We
reject this argument.  See State v. Yoh, 2006 VT 49A, ¶ 37,
180 Vt. 317, 910 A.2d 853 (“While most of our cases regarding plain error arise
from situations where appellate counsel briefs an issue not preserved below,
plain error is also applicable when appellate counsel fails to raise an issue,
or raises it in an untimely fashion”); see also V.R.Cr.P. 52(b) (“Plain errors
or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.”). 


[15] 
This Court has only departed from this bright-line rule in a case in which the
parties relied upon the trial court’s assurance that they need not renew their
objections, defendant had made the same objection repeatedly throughout the
trial, and the error occurred within two weeks of our decision making it clear
that a post-instruction objection is required even in the face of a contrary
assurance by the trial court.  State v. Bacon, 163 Vt. 279, 284-85,
658 A.2d 54, 59 (1995).  In Bacon, we clarified that despite the
judge’s instruction in contravention of Rule 30, counsel was obligated to
articulate an objection after the charge is read, but treated the objection as
preserved given that our decision establishing otherwise in State v.
Wheelock was only two-weeks old at the time of the Bacon
trial.  See State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975
(1992) (requiring parties provide “succinct recitation of specific itemized
objections” despite contrary trial-judge instruction).


[16] 
V.R.C.P. 51(b) is the civil analog to Criminal Rule 30.  The relevant text
of the rules is virtually identical.  Compare V.R.C.P. 51(b), with
V.R.Cr.P. 30.



