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
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before this opinion goes to press.


                                            2018 VT 28

                                           No. 2016-284

State of Vermont                                                Supreme Court

                                                                On Appeal from
   v.                                                           Superior Court, Washington Unit,
                                                                Criminal Division

Nathaniel R. Peatman                                            October Term, 2017


Kevin W. Griffin, J.

James Pepper, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


        ¶ 1.   SKOGLUND, J.             Defendant Nathaniel Peatman appeals his convictions,

following a jury trial, for first-degree aggravated domestic assault, aggravated assault of a law

enforcement officer, and resisting arrest. Defendant argues that his convictions must be reversed

because the jury instructions failed to guarantee unanimous verdicts. We affirm.

        ¶ 2.   On December 30, 2014, defendant was arrested and charged with first-degree

aggravated domestic assault, aggravated assault of a law enforcement officer, resisting arrest, and

impeding a public officer following a series of events involving defendant’s girlfriend (girlfriend),

her son, and the responding officers.

        ¶ 3.   Prior to trial, defendant gave notice of his intent to present a diminished capacity

defense for the specific-intent charges—most importantly for this appeal, for the willful conduct
element under the first-degree aggravated domestic assault charge. Additionally, the State gave

notice of election of the elements to be tried as follows: the first-degree aggravated domestic

assault charge would proceed under both willful and reckless conduct; the aggravated assault on a

law enforcement officer charge would proceed under both attempted to cause and caused serious

bodily injury. Defendant objected to the State’s election and sought to have the State choose one

theory for each charge prior to closing argument. At the jury draw, a subsequent motion hearing,

and on the morning of trial, defendant expressed concerns about crafting jury instructions that

would guarantee a unanimous verdict. The trial court disagreed, and allowed the State to proceed

with their alternate theories of the case.

        ¶ 4.    A one-day jury trial took place on February 1, 2016. The State presented the

following evidence through five witnesses. Girlfriend testified that, on the night of the incident,

defendant was at her apartment playing videogames with her son. Throughout the night, defendant

was drinking homebrew and getting progressively more critical about the cleanliness of

girlfriend’s apartment, to the point that he began berating girlfriend with insults such as “filthy

pig” and “hog.” Girlfriend put her son to bed in another room and asked defendant to leave. When

defendant refused, girlfriend got up to go to another room in the apartment, but defendant grabbed

her arm and pushed her back up against a bookcase. Defendant “knock[ed her] around the head”

with a closed fist. While defendant was hitting girlfriend, her son came out of his room and

screamed at defendant to stop.

        ¶ 5.    At this point in time, girlfriend’s upstairs neighbor testified that she heard “scream

crying” and a male voice yelling “Cut the F’ing shit.” The neighbor became concerned, went

down to girlfriend’s apartment, and knocked on the door. Defendant opened the door and told the

neighbor that everything was fine. The neighbor testified that defendant smelled of alcohol and


         Defendant testified to drinking two to two-and-a-half glasses of “homebrew.” The
alcohol content of the beverage was not established at trial.
                                                2
was slurring his words. Although defendant was standing in the doorway, the neighbor could see

that girlfriend and her son were crying in the apartment and that girlfriend’s nose was bleeding.

The neighbor walked past defendant into the apartment and asked girlfriend and her son if they

were okay. Girlfriend’s son eventually responded that defendant had beat girlfriend. When the

neighbor left to call the police, defendant started hitting girlfriend again, “full fisted” in her right

eye, knocking her head against the wall.

       ¶ 6.    The neighbor and her fiancé waited outside for the police.              When the first

responding officer, Officer Karie Tucker, arrived, the neighbor told her that defendant was “in a

drunken rage.” Officer Tucker testified that, as she approached girlfriend’s apartment, she heard

yelling. Within seconds of her arrival at the apartment, defendant opened the door and Officer

Tucker could see girlfriend, with a bruised and swollen eye, and her son in the apartment.

Defendant tried to walk past Officer Tucker, but she grabbed him by the arm and attempted to

handcuff him. Defendant responded by immediately grabbing Officer Tucker’s throat with both

hands, choking her. With her free hand, Officer Tucker attempted to push defendant’s face away,

but he bit her middle finger. Officer Tucker then struck defendant’s face with the hand she was

holding the handcuffs in and hit him in the groin until defendant released her, at which time Officer

Tucker was able to handcuff one of defendant’s hands.

       ¶ 7.    The neighbor’s fiancé entered the hallway where Officer Tucker and defendant

were engaged in the struggle. Officer Tucker threatened to use her taser on defendant if he did not

comply, at which point defendant struck the taser out of her hand and punched her in the face

several more times. The neighbor testified that when she entered the hallway, she saw her fiancé

restraining defendant and blood streaming from Officer Tucker’s face. Two additional officers

then arrived on the scene. They were able to handcuff, arrest, and transport defendant to the police

station to be booked. The entire altercation between defendant and Officer Tucker lasted less than

six minutes.

                                                   3
       ¶ 8.    At the close of the State’s case, defendant moved for judgment of acquittal for the

charges of first-degree aggravated domestic assault, aggravated assault of a law enforcement

officer, and resisting arrest. Defendant argued first that his diminished capacity negated any

willful conduct, and second that there was insufficient evidence that this was a lawful arrest and

that defendant knew Officer Tucker was a law enforcement officer. The court denied defendant’s

motions, finding sufficient evidence that defendant’s actions were willful and that, while there was

evidence that defendant had been drinking, the evidence did not suggest that he was intoxicated

beyond the point of being capable of acting willfully. Further, the court found there was enough

evidence to show that Officer Tucker’s injuries could also have been caused by reckless behavior

and that she was a law enforcement officer performing a lawful duty.

       ¶ 9.    Defendant then took the stand in his own defense. He testified that he had been

drinking homebrew at girlfriend’s apartment and that he was intoxicated. Defendant did not

remember what triggered it, but he testified that he “snapped” and started “flicking” girlfriend in

the back of the head. After he answered the door and told the neighbor that everything was fine,

girlfriend said something that caused defendant to “flick” her again, which he conceded was the

source of girlfriend’s bruised eye. Defendant briefly talked to girlfriend’s son, then exited the

apartment where he encountered Officer Tucker. He testified that, even though she was wearing

a police uniform, he believed she may have been an adult entertainer in costume, and thus, when

she asked him to face the wall, tried to put handcuffs on him, and started hitting him, he defended

himself. Defendant said he never hit Officer Tucker, but merely grabbed her arms to protect

himself and block her blows. When the two additional officers arrived, defendant testified that he

went to them to have them stop Officer Tucker’s assault, but the other officers started beating him

and knocked him unconscious. Defendant testified that, when he woke up, he was lying on his

back in the middle of the driveway in front of a police cruiser.



                                                 4
       ¶ 10.    After the close of evidence and closing arguments, defendant again raised his

concerns that the State’s alternative theories might leave open the possibility that the jury could

not be unanimous on any one theory and that the jury might not know how to properly consider

the diminished capacity defense. As to the alternate theories, the trial court determined that it

could craft an instruction that could sufficiently define “willful” and “reckless” and make it clear

to the jury that they must be unanimous. The trial court explained that “whether the jury believes

it is reckless, or whether there are some who get to the higher state of willful, they will have

necessarily gone from reckless to willful,” which ensures unanimity. As to defendant’s concern

that the jury might not properly consider the diminished capacity defense, the trial court

determined that it was unnecessary to repeat the entire instruction for diminished capacity after

each charge where the defense applied because the jury had copies of the instructions in the jury

room and could easily refer to the diminished capacity instruction. Therefore, the court decided it

would read the instruction in its entirety once, but after reading the individual elements of each

charge, the court would instruct the jury for which intent elements they should consider for

diminished capacity. Further, defendant did not object to the lack of a jury instruction requiring

unanimity on the specific acts establishing the aggravated assault of a law enforcement officer or

the resisting arrest charges.

       ¶ 11.    The court instructed the jury and sent them into deliberation. While deliberating,

the jury sent out a note asking whether they had “to agree on the specific physical acts listed” or if

they could “be sure beyond a reasonable doubt that he ‘caused serious bodily injury’ or ‘attempted

to prevent a lawful arrest’ regardless which [of] those physical acts were carried out.” In other

words, were they “limited to those physical acts.” The trial court determined that because all the

acts happened during a very short period of time, the jury did not have to agree “that it was three

strikes versus two, or choking versus this, this.” Defendant objected to this determination. The

trial court then instructed the jury the following:

                                                  5
               [Y]ou don’t all have to agree on the specific acts that, for example,
               I cited in the instructions. Your duty is to use your recollection of
               the evidence. So you’re not limited to those acts. There could be
               more or there could be less. . . . But you must unanimously agree
               that the particular element was established beyond a reasonable
               doubt.

       ¶ 12.   The jury convicted defendant on all four counts. The verdict form indicated that

on the charge of aggravated assault on a law enforcement officer, the jury found defendant guilty

on the theory of attempting to cause serious bodily injury, and therefore did not reach a verdict on

the State’s alternative theory of causing serious bodily injury. This appeal followed.

       ¶ 13.   On appeal, defendant argues that the jury instructions did not guarantee juror

unanimity in violation of the Vermont Constitution. Vt. Const. ch. I, art. 10 (assuring that person

cannot be found guilty without unanimous consent of jury). First, for the first-degree aggravated

domestic assault conviction, defendant argues that the instructions failed to ensure unanimity on

which of the requisite mental states—willful or reckless—the jury found to establish guilt. Second,

for the aggravated assault of a police officer and resisting arrest convictions, defendant argues that

the instructions were erroneous because the jurors were told they were not required to agree on

which act or acts they found established the requisite element.

       ¶ 14.   The “party appealing [the] jury charge has the burden of establishing that the charge

was both erroneous and prejudicial.” Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 218, 583 A.3d 566,

571 (1990). When reviewing jury instructions, this Court must “read the charge as a whole, rather

than piecemeal, and will uphold the instruction where it breathes the true spirit and doctrine of the

law and does not mislead the jury.” State v. Pitts, 174 Vt. 21, 23, 800 A.2d 481, 483 (2003)

(quotation omitted).    However, a trial court “is not required to make every comment that

conceivably could be made on the issues and evidence” and “[t]he degree to which the court is to

elaborate on the points charged lies within the sound exercise of its discretion.” Currier v.

Letourneau, 135 Vt. 196, 204, 373 A.2d 521, 527 (1977).


                                                  6
       ¶ 15.   Defendant first argues that the trial court’s instructions erroneously did not require

the jury to be unanimous on the mental state element—willful or reckless—for defendant’s first-

degree aggravated domestic assault conviction. The trial court relied on this Court’s previous

analysis of ascending mental states when instructing the jury. State v. Bolio, 159 Vt. 250, 617

A.2d 885 (1992); State v. Boglioli, 2011 VT 60, 190 Vt. 542, 26 A.3d 44 overruled on other

grounds by State v. Bolaski, 2014 VT 36, ¶ 47, 196 Vt. 277, 95 A.3d 460. In Bolio, this Court

held that willful conduct involves a degree of intent that is greater than reckless conduct. 159 Vt.

at 253, 617 A.2d at 887 (“To ‘purposely or knowingly’ cause harm is to form a degree of intent to

harm that is greater than to ‘consciously disregard’ the risk that harm may result from the

conduct.”). The Court applied this principle in Boglioli when it affirmed a conviction for voluntary

manslaughter, even though the jury instructions did not require the jurors to choose and

unanimously agree upon one of the three possible mental states that could be used as a basis to

support the conviction: intent to kill, intent to do great bodily harm, and wanton disregard of the

likelihood of death or great bodily harm. 2011 VT 60, ¶ 11. It noted that the element required to

sustain a conviction was that a defendant have “intent,” and the three mental states were merely

alternative ways to demonstrate that the defendant had the requisite intent. Id. ¶ 12. Therefore, it

concluded that “[a]s long as all jurors were unanimous on the ultimate issue of intent, which of the

three alternative methods used to inform each decision as to intent is immaterial.” Id.

       ¶ 16.   While defendant concedes that Bolio and Boglioli are still good law, he opines that

they are inapplicable in the present case because the jury was also given the added consideration

of a diminished capacity defense. Defendant contends that the jury should have been instructed to

first consider willful intent and the defense of diminished capacity and, if they were unanimous

that defendant’s diminished capacity left him unable to form willful intent, they would be required

to return verdict of not guilty and would not be permitted to consider recklessness. Essentially,

defendant argues that in the manner the jury was instructed, a juror or some of the jurors could

                                                 7
have accepted the diminished capacity defense and determined that defendant could not have acted

willfully, but then wrongfully considered whether he acted recklessly. This argument is flawed.

       ¶ 17.   The first-degree aggravated domestic assault statute states that a person commits

the crime if they “willfully or recklessly” cause the required injury. 13 V.S.A. § 1043(a)(1)

(emphasis added). When this Court construes a criminal statute, “we presume that the Legislature

knows how to incorporate a scienter element.” State v. Richland, 2015 VT 126, ¶ 8, 200 Vt. 401,

132 A.3d 702.      Thus, we must assume that the Legislature expressly intended to include

recklessness as an alternative intent level to willfulness—if one was not satisfied, the other should

be considered. The fact that a defense is applicable to only one of those intent levels does not

change the availability of the other as an alternative. To adopt defendant’s contention that the jury

was precluded from considering recklessness if it could not find willful intent, this Court would

have to disregard the statute and essentially eliminate the reckless theory from the offense.

       ¶ 18.   Here, the trial court’s instruction on first-degree aggravated assault tracked the

language of the statute and contained definitions for both mental states. It gave the jury the

diminished capacity instruction requested by defendant and explicitly instructed them to consider

whether defendant’s intoxication negated his ability to form willful intent. Additionally, jury was

instructed that if it “ha[s] a reasonable doubt about whether [defendant] was capable of forming

the required intent, or whether he actually formed the required intent, you must . . . find him not

guilty.” Therefore, we find that the instructions, taken as a whole, reflect the spirit of the law and

the jury was not misled. Further, we hold that, because the instructions were clear that the jury

was only to consider diminished capacity with willful intent and because there is nothing

restricting recklessness to be considered in the alternative, Bolio and Boglioli apply and thus the

jury was necessarily unanimous on the intent element of defendant’s first-degree aggravated

domestic assault conviction.



                                                  8
       ¶ 19.   Defendant next argues that the trial court erred because the jury instructions did not

guarantee juror unanimity on the aggravated assault of a law enforcement officer and resisting

arrest convictions because the jurors were told they were not required to agree on which act, or

acts, they found established the requisite element. He argues that the lack of an instruction and

the State’s failure to make an election as to the specific act or acts that constituted the offenses

charged is an error that satisfies the high bar set by the plain error analysis. Notwithstanding

defendant’s apparent request for plain error review, we find that the objection was preserved for

full appellate review. Under the correct standard of review, we find no error.

       ¶ 20.   In instructing the jury on the aggravated assault of a law enforcement officer

charge, the court listed several acts alleged by the State that would together satisfy the “attempted

to cause or caused serious bodily injury” element of the charge, including grabbing Officer Tucker

by the throat while applying pressure to her trachea, biting her finger until it bled, and punching

her in the face multiple times. On the resisting arrest charge, the court listed the same acts but

added “refusing to walk.” Defendant did not object to these instructions at the charge conference,

and thus at first glance it would appear as though defendant did not preserve his objection for

appellate review under Vermont Rule of Criminal Procedure 30 and that this Court must review

for plain error. V.R.Cr.P. 30(b) (“No party may assign as error any portion of the charge or

omission therefrom unless the party objects thereto on the record either at a charge conference or

before the jury retires to consider its verdict, stating distinctly the matter to which objection is

made and the ground of the objection.”).

       ¶ 21.   However, defendant did object to the trial court’s answer to the question sent out

from the jury’s deliberations, in which the court explained that because the evidence presented was

of a series of alleged actions that all happened during a very short period of time, the jury did not

have to be unanimous on the specific acts that constituted the charge. His objection was “a clear

and concise recitation [that allowed the court] ‘to understand what defendant intended to preserve

                                                 9
for appeal.’ ” State v. Rounds, 2011 VT 39, ¶ 19, 189 Vt. 447, 22 A.3d 477 (quoting State v.

Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992)). Thus, the main goal of Rule 30—“to

give the trial court one last opportunity to avoid an error”—was achieved because the court knew

precisely what defendant argued was in error, had a chance to address it, and chose to give the

instruction despite the objection. Wheelock, 158 Vt. at 306, 609 A.2d at 975. Therefore, instead

of plain error review resulting from an unpreserved objection, this Court will review the initial

instructions and the answer to the jury question as a preserved objection.

       ¶ 22.   As explained above, the “party appealing [the] jury charge has the burden of

establishing that the charge was both erroneous and prejudicial.” Mobbs, 155 Vt. at 218, 583 A.3d

at 571. Reading the instructions as a whole, we find no error because it “breathes the true spirit

and doctrine of the law and does not mislead the jury.” Pitts, 174 Vt. at 23, 800 A.2d at 483

(quotation omitted).

       ¶ 23.   Defendant properly states it is a long-established rule that where there is evidence

of many acts, any one of which would constitute the offense charged, an election must be made.

See, e.g., State v. Blair, 109 Vt. 306, 307, 196 A. 242, 243 (1938) (“There can be no question but

that the respondent was entitled to have the State elect as to which offense it relied upon.”); State

v. Bonilla, 144 Vt. 411, 413, 477 A.2d 983, 985 (1984) (“This Court has held, on numerous

occasions, where there is evidence of many acts, any one of which would constitute the offense

charged, an election must be made.”). “This ensures a defendant’s right to a unanimous verdict

by protecting against the possibility that ‘part of the jury will base its decision to convict on

evidence of conduct different from that considered by the rest of the jury.’ ” State v. Albarelli,

2016 VT 119, ¶ 27, __ Vt. __, 159 A.3d 627 (quoting State v. Gilman, 158 Vt. 210, 215, 608 A.2d

660, 664 (1992)). However, this Court has held that there is an exception to the election rule in

cases when the evidence reflects two or more such acts “where the specific acts are so related as

to constitute but one entire transaction, or one offense.” State v. Bailey, 144 Vt. 86, 98, 475 A.2d

                                                 10
1045, 1052 (1984). In Bailey, this Court held that, because the acts at issue “all occurred within

the span of one and one-half hours,” it would be “unreasonable to compel the prosecution and

the . . . dazed victim to delineate with specificity each act . . . where she was being repeatedly and

continuously . . . assaulted.” 144 Vt. at 99, 475 A.2d at 1053 (quotations omitted). Cf. Bonilla,

144 Vt. at 414, 477 A.2d at 985 (requiring election between three acts of arson because they took

place over three-day span); State v. Corliss, 149 Vt. 100, 103, 539 A.2d 557, 559 (1987) (finding

that election was required between two distinct acts of burglary over course of several hours).

       ¶ 24.   Here, all of the alleged acts took place over a span of six minutes as part of one

continuous assault—from this, it is clear that this case fits within the exception because the acts

were “inextricably intertwined” as one continuous offense. Therefore, the trial court’s initial

instructions, which included a list of alleged acts that the court suggested the jury consider, and its

answer to the jury question, which clarified that the jury did not have to elect specific acts and

instead had to be unanimous that the element was proven beyond a reasonable doubt, was not in

error. It breathed the true spirit of the law—that there is an exception to the election rule in

multiple-act acts and that the evidence presented qualified this case for said exception—and thus

we affirm.

       Affirmed.

                                                 FOR THE COURT:



                                                 Associate Justice




                                                  11
