2013 VT 69


State v. Cahill (2012-085)
 
2013 VT 69
 
[Filed 09-Aug-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 69

 

No. 2012-085

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Essex Unit,


 


Criminal Division


 


 


Michael Cahill


January Term, 2013


 


 


 


 


M.
  Kathleen Manley, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier,
  for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶
1.            
BURGESS, J.  Defendant Michael Cahill appeals from superior
court convictions for aggravated assault with a deadly weapon and reckless
endangerment following an incident where he pointed a loaded firearm at a
farmhand.  Defendant argues that the court erred in denying his motion for
judgment of acquittal, improperly instructing the jury on the elements of
aggravated assault, and convicting him of both aggravated assault and reckless
endangerment.  We affirm defendant’s aggravated assault conviction and
remand for vacatur on either the reckless endangerment conviction or the
aggravated assault conviction. 
¶ 2.            
The relevant facts are undisputed.  The gunplay at issue in this
case arose out of an ongoing dispute between defendant and his farmer neighbor.
 Defendant raised vegetables in fields next to his neighbor’s dairy farm
in Guildhall.  Defendant and the farmer had a history of conflict over the
farmer’s practice of spreading liquid manure on his fields, which defendant
believed contaminated his gardens with E coli bacteria.  Defendant and the
farmer ultimately reached an agreement in the fall of 2009 that the farmer
would not spread manure past the halfway point in the field directly adjacent
to defendant’s property.  
¶
3.            
On July 1, 2010, the farmer directed his farmhand to spread manure on
the field adjacent to defendant’s property.  The farmer warned the
farmhand that a confrontation with defendant might arise and instructed the
farmhand not to cross the agreed-upon halfway point.  Defendant saw the
farmer’s manure-spreading truck approach the halfway line and became very
angry.  Defendant strode into the field toward the farmer’s truck with a
.45 pistol and stopped about twenty-five yards from the truck.  Defendant
then cocked a shell into his pistol and pointed it at the farmhand for a few
seconds before turning the pistol to the right and firing it toward the
woods.  The farmhand called the farmer, who arrived at the field shortly
thereafter.  
¶
4.            
Defendant confronted the farmer, and the two men argued loudly about the
manure.  Defendant became more enraged during this exchange and struck the
farmer’s truck.  The farmer then drove off and called the police.  
¶
5.            
Defendant waited at his home for the police to arrive.  While
waiting, defendant fired his pistol at the base of a bird feeder on his
property several times.  Defendant also called a reporter and a health
department official in an attempt to have them report on the story.  The
Essex County Sheriff went to defendant’s residence along with Vermont State
Police.  After the officers arrived, defendant took pictures of the scene
with his camera because reporters were not present to document the officers’
arrival.  In a fifteen-minute standoff with the officers, defendant argued
with them before approaching.  Defendant eventually told the officers that
he brought his gun to the field but did not shoot it until he was back on his
property.  Defendant also explained that he wanted to draw publicity to
his personal campaign against the manure spreading because he was unable to get
assistance from the Environmental Protection Agency.  After arresting
defendant, the police returned to the field with a metal detector and
discovered a .45 caliber round with a spent casing nearby, supporting the
contention that defendant fired a shot while in the field, as described by the
farmhand.  At trial, both the farmhand and another witness testified that
defendant pointed his gun at the farmhand in the field.  The farmhand
testified that he knew defendant pointed the gun at him because he “was pretty
much looking down the barrel.”  The farmhand also testified that
defendant’s actions in the field caused him no fear.  Defendant, however,
testified that he never pointed a gun at the farmhand, explaining, “I don’t aim
weapons unless I intend to kill.”  
¶
6.            
After the close of the State’s case, defendant moved to dismiss the
aggravated assault charge.  Defendant argued that there was no evidence
that he had the requisite specific intent to threaten necessary to sustain a
conviction.  The court denied defendant’s motion, ruling that defendant’s
act of pointing the gun at the farmhand constituted a threat that defendant
emphasized when he turned and fired the gun into the woods.  
¶
7.            
In its instructions, the court told the jury that for aggravated
assault, the defendant must have communicated an intent to harm such that a
reasonable person would understand it to be a threat.  Defendant did not
object to the instruction.  The jury returned a verdict of guilty for
aggravated assault, reckless endangerment, and disorderly conduct.*  The court imposed a sentence of
two-to-five years on the assault count, six-to-twelve months consecutive on the
reckless endangerment count, and fifty-nine-to-sixty days for disorderly
conduct.  This appeal followed.
¶
8.            
Defendant contends that the trial court’s denial of his motion for
acquittal was error, that its specific-intent instruction for aggravated
assault was error, and that the convictions and sentences for both aggravated
assault and reckless endangerment, on the facts of this case, violated his right
against double jeopardy.  The State responds that the trial court
correctly denied defendant’s motion for acquittal and that the court’s jury
instructions do not warrant reversal.  The State concedes that the dual
conviction and sentence for aggravated assault and the lesser included offense
of reckless endangerment cannot be sustained, and urges this Court to vacate
the lesser reckless endangerment conviction.  We agree with the State on
each of the three points.  Accordingly, we affirm defendant’s aggravated
assault conviction and remand the case for the State to move to vacate one of
the convictions.
I.
¶ 9.            
Defendant first argues that the State did not present evidence that defendant’s
behavior satisfied the subjective-intent element required for aggravated
assault.  Review of a denial of a motion for judgment of acquittal
evaluates “whether the evidence, when viewed in the light most favorable to the
State and excluding any modifying evidence, fairly and reasonably tends to
convince a reasonable trier of fact that the defendant is guilty beyond a
reasonable doubt.”  State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt.
232, 979 A.2d 1023 (quotation omitted).  Granting a motion for judgment of
acquittal is appropriate “only if the State has failed to put forth any
evidence to substantiate a jury verdict.”  Id. (quotation
omitted).   
¶
10.        
Aggravated assault with a deadly weapon requires the State to prove that
defendant “[was] armed with a deadly weapon and threaten[ed] to use the deadly
weapon on another person.”  13 V.S.A. § 1024(a)(5).  Moreover,
because aggravated assault is a specific-intent crime, the State must show that
defendant subjectively intended to threaten the individual with the deadly
weapon.  State v. Bourn, 2012 VT 71, ¶ 17, ___ Vt. ___, 58
A.3d 236.  Defendant posits the State could not prove the requisite
specific intent to threaten for an aggravated assault because he intended only
to attract publicity for his environmental cause. 
¶
11.        
This argument, however, conflates the concepts of motive and
intent.  Motive is what causes an individual to act or fail to act. 
See State v. Johnson, 371 S.E.2d 340, 348 (W. Va. 1988) (defining motive
as “supplying the reason that nudges the will and prods the mind to indulge the
criminal intent.” (quotation and alteration omitted)).  Whereas specific
intent is an element of aggravated assault, Bourn, 2012 VT 71,
¶ 11, motive is not, and a “good motive is not a defense to criminal
activity.”  United States v. Martin, 740 F.2d 1352, 1360 (6th Cir.
1984).  Defendant’s motive to publicize his cause, which both he and the
State were free to present as evidence, is not inconsistent with, and does not
negate, an intent to threaten the farmhand with a .45 pistol to achieve
that end.  
¶
12.        
Defendant’s contention that the State’s evidence fell short of prima
facie evidence of defendant’s subjective intent to threaten the farmhand is
unavailing.  Indeed, the evidence shows that defendant armed himself with
a .45 pistol, stood twenty-five yards away from and pointed his gun at the
farmhand, and then fired the pistol into the woods for emphasis.  Assuming
defendant could have intended otherwise, at the same time it cannot be said
that pointing a firearm at another and demonstrating its capability to injure
in the manner for which it is ordinarily designed is not prima facie evidence
of a threat.  That defendant first denied his conduct is also evidence of
guilty intent.  Cf. State v. Kasper, 137 Vt. 184, 195, 404 A.2d 85,
92 (1979) (reiterating established law of this jurisdiction that knowing
falsification by defendant, as in claiming false alibi, “is admissible for the
purpose of showing a consciousness of guilt”).  Taken as a whole and
viewed in the light most favorable to the State, this evidence was sufficient
to show beyond a reasonable doubt that defendant had the specific intent to
threaten, even if his communication thereof was implicit, not explicit. 
Because “[i]t cannot be said that the State here failed to put forth any
evidence to substantiate [the] jury verdict,” the trial court correctly denied
defendant’s motion for judgment of acquittal.  State v. Russell,
2011 VT 36, ¶ 13, 189 Vt. 632, 22 A.3d 455 (mem.) (quotation omitted).
II.
¶
13.        
Defendant next challenges the trial court’s jury instructions.  The
court instructed the jury as follows:
  To threaten
another person means to communicate by words or deed, an intent to inflict harm
upon that person.  The threat may be explicit.  For example, it may
be a direct verbal threat.  The threat may also be implicit, consisting of
words or conduct which a reasonable person would understand to be a threat. 
Whether the threat was explicit or implicit, or both, the State must have
proven that [defendant] communicated an intent to inflict harm upon [the
farmhand].  
 
Defendant asserts that the instructions created an objective
standard which avoided the specific-intent requirement of aggravated assault
and undermined defendant’s primary defense that he intended only to attract
publicity to his cause.  Defendant further posits that the trial court
omitted the element of specific intent altogether by stating that a threat may
consist “of words or conduct which a reasonable person would understand to be a
threat.”  
¶ 14.        
Defendant did not object to the court’s jury instructions at trial, and
thus review on appeal is limited to plain error.  See V.R.Cr.P. 52(b); State
v. Myers, 2011 VT 43, ¶ 17, 190 Vt. 29, 26 A.3d 9 (party must object
to jury instructions at trial to preserve issue for appellate review); State
v. Viens, 2009 VT 64, ¶ 22, 186 Vt. 138, 978 A.2d 37; In re Carter,
2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281 (“Since petitioner failed to
object to the jury instructions, he must show plain error.”).  Plain error
review of jury instructions assesses the instructions as a whole “to determine
if they breathe the true spirit of the law, and if there is no fair ground to
say that the jury has been misled.” State v. Rounds, 2011 VT 39,
¶ 22, 189 Vt. 447, 22 A.3d 477 (quotation omitted).   
¶ 15.        
Plain error is “a very high bar.”  State v. Herrick, 2011 VT
94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.  Plain error analysis evaluates
four factors: “(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.”  Id. 
Plain error arises only “in exceptional circumstances where a failure to
recognize error would result in a miscarriage of justice, or where there is
glaring error so grave and serious that it strikes at the very heart of the
defendant’s constitutional rights.”  State v. Bain, 2009 VT 34,
¶ 18, 185 Vt. 541, 975 A.2d 628 (quotation omitted).  
¶ 16.        
It is settled that aggravated assault is a specific-intent crime. 
See Bourn, 2012 VT 71, ¶ 11.  Defendant correctly points out
that the instruction did not include the exact reference to specific
“subjective” intent prescribed in Bourn.  Id. ¶ 17
(holding that conviction for aggravated assault requires actor to “subjectively
intend to threaten”).  However, taking the jury instructions as a whole in
the context of this particular case, there is no plain error.  
¶ 17.        
The instruction properly describes a threat actionable as aggravated
assault by explaining that to “threaten another person means to communicate by
words or by deed, an intent to inflict harm upon that person.”  See
State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988) (“A threat is
a communicated intent to inflict harm on person or property.”).  While not
as explicit as calling for “subjective” intent as prescribed in Bourn,
the instructions still made clear that there could be no conviction without
proof that defendant’s message was to threaten injury to another, and that it
was the State’s burden to prove defendant communicated an intent to injure.
 The jury did not have to find that defendant actually intended to harm
the farmhand, but only that he intended to threaten him.  Cf. Virginia
v. Black, 538 U.S. 343, 359-60 (2003) (“ ‘True
threats’ encompass those statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.  The speaker
need not actually intend to carry out the threat.” (citations omitted)).  So long as the jury was explicitly required to find
a distinct communication of an intent to harm, the instruction is nearly
indistinguishable from one requiring the jury to find a subjective intent to
threaten within such a communication.  Terms used by the trial court like
“communicate[] an intent to harm” and “threaten” also fairly convey elements of
a choice to act combined with intentionality.  See Cole, 150 Vt. at
456, 554 A.2d at 255 (observing that “[t]he word ‘threaten’ includes some
element of volition” and that threatening behavior “communicates the requisite
intent”).  
¶ 18.        
Moreover, the court’s instruction that a threat may consist “of words or
conduct which a reasonable person would understand to be a threat” did not
transform the instruction into one of general intent.  The instruction is
not considered in a vacuum.  The effect of the instruction was at least
twofold:  First, the instruction differentiated between explicit threats,
communicated verbally, and implicit threats, conveyed through conduct. 
Second, the instruction’s mandate correctly directed the jury to measure the
effect of defendant’s communication according to the perception of a reasonable
person, rather than the subjective fearlessness of the farmhand.  
¶ 19.        
Defendant posits, however, that in the case of an implicit threat, the
instruction wrongly suggests that the necessary mens rea can be arrived at by
the objective perception of a reasonable observer rather than determining
defendant’s actual subjective intent.  This argument is correct, but the
alleged prejudice would be persuasive in a more nuanced factual situation.
 Here, the message in defendant’s pointing his pistol at the farmhand and
contemporaneously demonstrating its lethality was barely, if at all, implicit. 
The apparent lack of ambiguity in the behavior proven, coupled with the defense
focus on motive over intent, left the instruction’s error less than
critical.  
¶
20.        
Nor did the instruction’s infirmity compromise the defense or lend doubt
to the reliability of the verdict.  Defendant argues that the instructions
were prejudicial and impacted the fairness, integrity, and public reputation of
judicial proceedings because it frustrated his defense that the State
failed to prove his intent at the time of the incident.  In this regard,
defendant reiterates on appeal that he intended only to attract media and law
enforcement’s attention so as to generate publicity to his environmental
cause.  That defendant continues to conflate or confuse the State’s
obligation to prove intent with a purported, but unnecessary, burden to
overcome defendant’s evidence of benign motive does not mean the instruction
ruined his defense. 
¶
21.           
Defendant’s motive defense was meritless as a matter of law, and warranted
no jury instruction to support it.  The defense may have offered an
excuse, but did not refute the charge or the State’s evidence.  Short of
legal necessity, a theory not advanced here, a good motive cannot ordinarily
justify or excuse a specifically intended criminal act.  Martin,
740 F.2d at 1360.  Therefore, whatever its flaw, the jury instruction was
marginally relevant to the defense, and did not adversely affect the fairness,
integrity, or reputation of the trial process.  Because the “charge as a
whole is not misleading” and no prejudice to the defendant resulted in a
“miscarriage of justice,” the jury instructions do not rise to the level of
plain error.  Herrick, 2011 VT 94, ¶ 18; see State v. Vuley,
2013 VT 9, ¶ 1, ___ Vt. ___, ___ A.3d ___ (assuming “we cannot approve the
trial court’s instruction. . . .  we affirm because
the error does not rise to the level of plain error”).  
III.
¶
22.        
Given that the greater aggravated assault offense is upheld, and the
State’s concession that the felony convictions are mutually exclusive in this
case, we need not address defendant’s third argument.  On remand, the
State must move to vacate one of the convictions at its election.  
Affirmed on the aggravated assault conviction and remanded for vacatur
on either the reckless endangerment conviction or the aggravated assault
conviction. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





* 
Defendant does not challenge his disorderly conduct conviction on appeal. 




