State v. Jackowski (2004-455)

2006 VT 119

[Filed 22-Nov-2006]


       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,
  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.


                                 2006 VT 119

                                No. 2004-455


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 2, Bennington Circuit

  Rose Marie Jackowski                           September Term, 2005


  David T. Suntag, J.

  William D. Wright, Bennington County State's Attorney, and Daniel M.
    McManus, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

  Stephen L. Saltonstall of Barr Sternberg Moss Lawrence Silver Saltonstall &
    Scanlon, P.C., Bennington, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  JOHNSON, J.   Defendant Rosemarie Jackowski appeals her
  conviction for disorderly conduct.  Defendant argues that the trial court
  improperly instructed the jury to consider whether defendant was
  "practically certain" that her conduct would cause public inconvenience or
  annoyance, when she was charged with intentionally causing public
  inconvenience or annoyance.  Defendant also contends that the trial court
  erred in excluding from evidence the protest sign she was carrying at the
  time of her arrest.  We reverse and remand.
   
       ¶  2.  Defendant was arrested on March 20, 2003, during an anti-war
  demonstration at the intersection of Routes 7 and 9 in Bennington.  During
  the demonstration, protesters blocked traffic at the intersection for
  approximately fifteen minutes.  Defendant stood in the intersection,
  praying and holding a sign bearing anti-war slogans and newspaper
  clippings, including an article accompanied by a photograph of a wounded
  Iraqi child.  Police officers repeatedly asked defendant to leave the
  intersection, and when she refused, she was arrested, along with eleven
  other protesters.  The State charged them with disorderly conduct, alleging
  that defendant and the other protesters, "with intent to cause public
  inconvenience and annoyance, obstructed vehicular traffic, in violation of
  13 V.S.A. § 1026(5)."

       ¶  3.  Defendant's intent was the only issue contested during her
  one-day jury trial.  After several police officers testified for the State,
  defendant took the stand, admitting to blocking traffic, but stating that
  her only intention in doing so was to protest the war in Iraq, not to cause
  public inconvenience or annoyance.  In response to the State's motion in
  limine to exclude defendant's protest sign, the trial court allowed
  defendant to display the sign to the jury and demonstrate how she was
  carrying it, but refused to admit it into evidence and allow it into the
  jury room.  At the conclusion of the trial, the court instructed the jury
  on the issue of intent.  The court first instructed the jury that the State
  could establish defendant's intent to cause public inconvenience or
  annoyance by proving beyond a reasonable doubt that she acted "with the
  conscious object of bothering, disturbing, irritating, or harassing some
  other person or persons."  The court then added, "This intent may also be
  shown if the State proves beyond a reasonable doubt that the defendant was
  practically certain that another person or persons . . . would be bothered,
  disturbed, irritated, or harassed."  The jury convicted defendant of
  disorderly conduct.  Defendant appeals.
   
       ¶  4.  Defendant first argues that the jury charge was improper
  because the trial court failed to instruct the jury to consider whether
  defendant acted with the requisite criminal intent.  "In reviewing jury
  instructions, the relevant inquiry is whether the instructions as a whole
  were misleading or inadequate to aid the jury's deliberations."  State v.
  Shabazz, 169 Vt. 448, 450, 739 A.2d 666, 667 (1999).  A jury charge will be
  upheld "[i]f the charge as a whole breathes the true spirit and doctrine of
  the law, and there is no fair ground to say that the jury has been misled
  by it."  Harris v. Carbonneau, 165 Vt. 433, 438, 685 A.2d 296, 300 (1996)
  (internal quotation marks and citations omitted).  The charge will stand
  unless it undermines our confidence in the verdict.  Shabazz, 169 Vt. at
  450, 739 A.2d at 667.

       ¶  5.  Defendant relies on State v. Trombley to draw a distinction
  between offenses that require purposeful or intentional misconduct and
  those that require only knowing misconduct.  174 Vt. 459, 462, 807 A.2d
  400, 404-05 (2002) (mem.).  In Trombley, we held that it was error for the
  trial court to instruct the jury to consider whether the defendant in an
  aggravated assault case acted "knowingly" or "purposely," when he was
  charged with "purposely" causing serious bodily injury.  Id.  The
  aggravated assault statute in Trombley, 13 V.S.A. § 1024(a)(1), had been
  amended in 1972 to adopt the Model Penal Code's approach to mens rea, which
  distinguishes among crimes that are committed "purposely," "knowingly," and
  "recklessly."  Id. at 461, 807 A.2d at 404.  Under this approach, a person
  acts "purposely" when "it is his conscious object to engage in conduct of
  that nature or to cause such a result."  MPC § 2.02(2)(a)(i).  A person
  acts "knowingly" when "he is aware that it is practically certain that his
  conduct will cause such a result."  MPC § 2.02(2)(b)(ii).  While the Code's
  provisions are not binding on this Court, they are "indicative of what the
  General Assembly intended in adopting the legislation modeled on the Code." 
  Trombley, 174 Vt. at 461, 807 A.2d at 404.  Thus, the trial court in
  Trombley erred in instructing the jury that it could find that the
  defendant acted "purposely" if "he was practically certain that his conduct
  would cause serious bodily injury."  Id. at 460, 807 A.2d at 403. 

       ¶  6.  Defendant argues that Trombley controls here, as the trial
  court used a similarly worded jury charge, and the disorderly conduct
  statute was amended at the same time, and for the same reasons, as the
  aggravated assault statute in Trombley. (FN1)  The State attempts to
  distinguish Trombley based on differences in the language of the aggravated
  assault and disorderly conduct statutes.  Unlike the aggravated assault
  statute, the disorderly conduct statute contains the words "with intent"
  and not "purposely."  Compare 13 V.S.A. § 1026 (establishing mens rea for
  disorderly conduct as "with intent to cause public inconvenience, or
  annoyance or recklessly creating a risk thereof") with 13 V.S.A. §
  1024(a)(1) (listing "purposely," "knowingly," and "recklessly" as culpable
  states of mind for aggravated assault).  This is a purely semantic
  distinction, and it does not indicate a departure from the Code's approach
  to mens rea, the adoption of which was "the major statutory change"
  accomplished by the Legislature's 1972 amendments.  Read, 165 Vt. at 147,
  687 A.2d at 948.  The Code does not differentiate between "with intent" and
  "purposely"; instead, it uses the two terms interchangeably, explaining in
  its definitions that " 'intentionally' or 'with intent' means purposely." 
  MPC § 1.13(12).  There is no indication that the Legislature used the
  phrase "with intent" to register disagreement with the Code's approach to
  disorderly conduct, and such disagreement seems unlikely in the context of
  an otherwise unqualified adoption of the Code's approach.   
                                                  
       ¶  7.  The State cites several cases supporting the proposition that
  both "purposely" and "knowingly" causing harm involve some element of
  "intent," and thus, that Trombley's distinction  between "purposely" and
  "knowingly" is illusory.  See State v. LaClair, 161 Vt. 585, 587, 635 A.2d
  1202, 1204 (1993) (mem.) ("When one causes harm 'purposely' or 'knowingly,'
  the person possesses some degree of an intent to harm."); State v. Patch,
  145 Vt. 344, 352, 488 A.2d 755, 760 (1985) ("A specific intent crime
  includes 'as an essential mental element that the act be done purposefully
  or knowingly.' ") (quoting State v. D'Amico, 136 Vt. 153, 156, 385 A.2d
  1082, 1084 (1978)).  The State also identifies cases approving of
  "practically certain" instructions in aggravated assault trials.  See State
  v. Pratt, 147 Vt. 116, 118, 513 A.2d 606, 607 (1986) (holding that
  "practically certain" instruction was proper despite lack of actual injury
  to victim); State v. Blakeney, 137 Vt. 495, 501, 408 A.2d 636, 640 (1979)
  (stating that specific intent was shown where the defendant was
  "practically certain that his conduct would cause serious bodily injury"). 
  Each of these cases predates our decision in Trombley, however, and each
  adheres to an outmoded distinction between "specific intent" and "general
  intent" crimes-the distinction that the Legislature rejected in adopting
  the Code's approach to mens rea.  See Trombley, 174 Vt. at 460-61, 807 A.2d
  at 403-04 (linking the Legislature's adoption of the Code's approach to
  mens rea to the demise of the common-law distinction between general and
  specific intent offenses).  At common law, crimes committed "purposely" and
  those committed "knowingly" would both have been specific intent offenses. 
  Id. at 461 n.3, 807 A.2d at 404 n.3.  In the cases the State cites, the
  defendants did not raise the question of statutory construction at issue in
  Trombley, so this Court had no opportunity to effectuate the Legislature's
  adoption of a more modern approach to mens rea.  See LaClair, 161 Vt. at
  585-87, 635 A.2d at 1203-04 (approving of jury instruction and affirming
  conviction of defendant where State never charged defendant with
  "purposely" causing serious bodily injury); Pratt, 147 Vt. at 118, 513 A.2d
  at 607 (affirming conviction for aggravated assault where defendant's
  objection to jury charge was based on lack of actual serious injury to
  victim, which was held irrelevant to the issue of mens rea); Patch, 145 Vt.
  at 351-52, 488 A.2d at 760-61 (affirming unlawful mischief conviction where
  defendant asked for jury instruction requiring finding of either "malice"
  or intent to damage state property, instead of intent to damage property he
  did not own); Blakeney, 137 Vt. at 499, 501, 408 A.2d at 639, 640
  (affirming aggravated assault conviction where information charged
  defendant with causing serious bodily injury both "knowingly" and
  "purposely," and where defendant challenged the sufficiency of the
  evidence, not the jury charge, with respect to mens rea).  These cases
  provide no basis for distinguishing or limiting Trombley here.  It was
  therefore error for the trial court to charge the jury to consider whether
  defendant was "practically certain" that her actions would cause public
  annoyance or inconvenience.


       ¶  8.  The State contends that the trial court's error was harmless
  and does not require reversal.  Under the harmless error standard, we may
  find a constitutional or nonconstitutional error harmless only if we can
  state a belief that the error was harmless beyond a reasonable doubt. 
  State v. Carter, 164 Vt. 545, 553-55, 674 A.2d 1258, 1264-66 (1996).  In
  analyzing the effect of the error in this case, we first address
  defendant's assertion that the erroneous jury instruction resulted in the
  equivalent of a directed verdict for the State.  Our case law indicates
  that such errors cannot ordinarily be considered harmless.  In State v.
  Boise, we held that the trial court's erroneous jury instruction-informing
  the jury that the defendant conceded to operating his vehicle on a public
  highway-was not harmless because it "removed an element from the jury's
  consideration."  146 Vt. 46, 48, 498 A.2d 495, 496 (1985).  Despite the
  State's argument to the contrary, we found that the instruction had
  improperly relieved the State of its burden to prove each element of the
  crime beyond a reasonable doubt and could not, therefore, be harmless.  Id. 
  Similarly, in State v. Martell, (FN2) we reversed a conviction where the
  trial court judge instructed the jury that it could presume that the
  defendant intended the "natural and probable consequences" of his actions. 
  143 Vt. 275, 278-80, 465 A.2d 1346, 1347-48 (1983).  Based on the
  instruction, if the jury found that the defendant's actions were
  intentional, it was also required to find that the defendant intended the
  foreseeable consequences of those actions.  This, we determined, amounted
  to a directed verdict.

       ¶  9.  The error here had a similar effect.  The trial judge
  essentially instructed the jury that it could presume defendant intended to
  cause public annoyance or inconvenience if it found that defendant knew
  that such annoyance or inconvenience would occur.  The instruction may have
  led the jury to ignore any evidence of defendant's intent and to convict
  solely based on her knowledge.  Particularly in a case such as this, where
  intent was the only contested issue at trial, we are persuaded that the
  effect of the erroneous instruction was analogous to a directed verdict for
  the State.  In light of defendant's right to a jury trial, we find that
  such an error cannot be harmless. (FN3)  See Connecticut v. Johnson, 460 U.S.
  73, 85-86 (1983) (stating in a plurality opinion that "if the jury may have
  failed to consider evidence of intent, a reviewing court cannot hold that
  the error did not contribute to the verdict"); United States v. Hayward,
  420 F.2d 142, 144 (D.C. Cir. 1969) ("The rule against directed verdicts of
  guilt includes . . . situations in which the judge's instructions fall
  short of directing a guilty verdict but which nevertheless have the effect
  of so doing by eliminating other relevant considerations if the jury finds
  one fact to be true.").             

       ¶  10.  The State argues that Trombley should control the
  harmless-error analysis in this case.  In Trombley, we held that the trial
  court's jury instruction on the issue of intent was harmless error. 174 Vt.
  at 462, 807 A.2d at 405.  In that case, however, intent was not a contested 
  issue at trial; the defendant effectively admitted intending to cause
  serious bodily injury to the victim, and only contested whether he was
  justified in doing so by pleading self-defense.  Id.  Here, intent was the
  only issue defendant contested at trial.  Defendant claimed that she
  intended only to protest the war in Iraq, not to cause public annoyance or
  inconvenience. (FN4)  The State is correct that defendant could have had
  multiple intents, and a jury could certainly have convicted defendant based
  on the evidence presented at trial.  The law makes a distinction between
  intentional and knowing acts, however, and defendant was entitled to have a
  jury decide whether causing public annoyance or inconvenience was her
  conscious object.  The trial court's instruction prevented the jury from
  considering that question, effectively removing the element of intent from
  the crime, if not directing a guilty verdict.  Again, we cannot say that
  this error was harmless beyond a reasonable doubt, so we must reverse
  defendant's conviction.
                      
       ¶  11.   The dissent concedes that the jury instruction was
  erroneous, but posits that the intent issue was "practically uncontested"
  at trial.  Post, ¶ 22.  This logically leads the dissent to conclude that
  Neder v. United States applies to the facts of this case.  527 U.S. 1, 17
  (1999) (holding that harmless error is found "where a reviewing court
  concludes beyond a reasonable doubt that the omitted element was
  uncontested and supported by overwhelming evidence, such that the jury
  verdict would have been the same absent the error") (emphasis added).  Our
  review of the record and briefings, however, shows that defendant did in
  fact deny intending to annoy or inconvenience the public and further
  testified at trial that her only intent was to educate the public and build
  support for a mass movement against the war.  Whether or not defendant was
  credible in presenting that evidence is for a jury to decide; however, in
  reaching its conclusion, the dissent necessarily makes that credibility
  determination on appellate review.  Despite defendant's legally sufficient
  argument to the contrary, the dissent stands in the shoes of the jury and
  determines, based on circumstantial evidence, that defendant had the
  requisite intent to be convicted.  Thus, we disagree with the dissent
  because, as Justice Scalia noted in his dissent to Neder, "[t]he right to
  render the verdict in criminal prosecutions belongs exclusively to the
  jury; reviewing it belongs to the appellate court."  Id. at 38. 
   
       ¶  12.  Where, as here, intent is the central-and only-issue, and the
  defendant presents minimally sufficient evidence rebutting intent, we
  cannot say that an erroneous jury instruction on that issue amounts to
  harmless error.  This view of the harmless-error analysis is well supported
  by our case law and that of states across the country.  See State v.
  Sargent, 156 Vt. 463, 467-68, 594 A.2d 401, 403 (1991) (reversing
  kidnapping conviction based on erroneous jury instruction on intent where
  "[d]efendant's case, as presented to the jury, centered on assertions that
  he lacked the requisite purpose or knowledge" and defendant "repeatedly
  testified that he did not know he was holding the victim against her
  will"); see also State v. Ramirez, 945 P.2d 376, 382 (Ariz. Ct. App. 1998)
  (error in premeditation instruction was not harmless where premeditation
  was "the only contested issue" at trial and substantial evidence supported
  defendant's argument); Sharma v. State, 56 P.3d 868, 873-74 (Nev. 2002)
  (error instructing jury that defendant could be convicted of attempted
  murder based on intent to violate the law instead of intent to kill was not
  harmless where defendant devoted "substantial portions" of the case to
  disputing specific intent and presented sufficient evidence for jury to
  find he did not intend to kill victim); State v. Marrington, 73 P.3d 911,
  917 (Or. 2003) (error in admission of evidence was not harmless where it
  touched "central factual issue" and case was a "swearing contest"); State
  v. Page, 81 S.W.3d 781, 789-90 (Tenn. Crim. App. 2002) (concluding that
  "the mens rea of the defendant was indeed the disputed issue at trial," and
  therefore error in instruction on mens rea could not be harmless).  Our
  difference with the dissent is over who decides defendant's guilt, not what
  the result should be.  Affirming defendant's conviction on the basis of
  harmless error is therefore inappropriate, regardless of the weight of the
  State's evidence and the likelihood of a guilty verdict had the error not
  been made.

       ¶  13.  Because the issue is likely to recur on retrial, we address
  defendant's remaining argument.  Defendant contends that the trial court
  erred in failing to admit her protest sign into evidence.  Defendant
  proferred the sign, a collage of editorials opposing the war in Iraq and
  news articles describing the effects of the war on Iraqi civilians, as
  evidence of her intent.  The State moved to exclude the sign based on
  Vermont Rule of Evidence 403, arguing that the sign, especially a portion
  that included a photograph of a wounded Iraqi child, was substantially more
  prejudicial than probative.  The trial court considered the issue prior to
  defendant's testimony and granted the State's motion in part.  The court
  found that the sign was relevant, stating, "It's actually part of the res
  gestae of the entire offense that's being suggested here," but also
  determined that the sign carried a "possibility of inflaming the passions
  of jurors."  The court allowed defendant to show the sign to the jury to
  demonstrate how she used it during the protest and referred to it in
  response to a police officer's request that she leave the intersection. 
  The court refused to admit the sign into evidence, however, and did not
  permit the sign into the jury room during the jury's deliberations. 
  Defendant argues that the sign was not too prejudicial to be admitted into
  evidence and allowed into the jury room.  Trial court rulings under Rule
  403 are "highly discretionary," and we will not reverse such rulings absent
  an abuse of discretion.  State v. Gibney, 2003 VT 26, ¶ 23, 175 Vt. 180,
  825 A.2d 32. 
   
       ¶  14.  Defendant is actually challenging two separate decisions of
  the trial court: its decision not to admit the sign into evidence, and its
  decision not to allow the jury to use the sign during its deliberations. 
  While exhibits admitted into evidence are typically allowed into the jury
  room, there are circumstances under which it is appropriate for a court to
  exclude exhibits from the jury room.  See State v. Buckley, 149 Vt. 663,
  663, 546 A.2d 798, 799 (1988) (mem.) (stating that which exhibits are made
  available to the jury during its deliberations is in the discretion of the
  trial court); 2 J. Strong et al., McCormick on Evidence § 217, at 28-30
  (4th ed.1992) (noting that "whether a particular exhibit may be taken by
  the jury is widely viewed as subject to discretionary control by the trial
  judge," and questioning the practice of sending tangible exhibits to the
  jury room).  

       ¶  15.  Here, the trial court was apparently unconcerned about the
  prejudice that could result from showing the sign to the jury during
  defendant's testimony, but feared the impact of defendant's protest sign on
  the jury's deliberations.  A ruling admitting the sign into evidence, but
  preventing its use in the jury room, would have had the same effect on the
  trial.  If there was a distinction between the sign's prejudicial effect as
  an aid to defendant's testimony and its prejudicial effect on the jury's
  deliberations, such a ruling would have clarified that distinction, while
  also ensuring the sign's inclusion in the record.  See 2 McCormick on
  Evidence, supra, § 213, at 11 ("[N]umerous appellate courts have commented
  upon the difficulties created on appeal when crucial testimony has been
  given in the form of indecipherable references to an object not available
  to the reviewing court.").  On retrial, the trial court should first
  determine the sign's probative value and prejudicial effect for purposes of
  its admissibility into evidence and use in the courtroom.  If the court
  admits the sign into evidence, it should then consider whether some
  additional prejudicial effect necessitates  its exclusion from the jury
  room.
   
       Reversed and remanded for further proceedings consistent with the
  views expressed herein.         



                                       FOR THE COURT:


                                       ______________________________
                                       Associate Justice

    
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                                 Dissenting


       ¶  16.  BURGESS, J., dissenting.  Confident that the trial court's
  misdescription of the intent element in this particular case was harmless
  beyond a reasonable doubt , I respectfully dissent.  The majority is
  correct that the trial court erred in allowing the jury the option to find
  defendant guilty of disorderly conduct by acting either "with the conscious
  object," that is  "with intent," to cause public inconvenience or
  annoyance, or by acting with "practical certainty," or "knowingly," that
  public inconvenience or annoyance would result from her actions.  Ante ¶
  7.  The majority is also correct that, since State v. Trombley, 174 Vt.
  459, 807 A.2d 400 (2002) (mem.), the element of "intentional" action in a
  criminal statute derived from the Model Penal Code, such as the disorderly
  conduct statute, means to act not "knowingly," but "purposely."  Ante ¶
  7.  The State was required to prove, as it expressly charged, that
  defendant obstructed traffic "with intent to cause," rather than
  "knowingly" cause, public inconvenience and annoyance.  Nevertheless, given
  the overwhelming evidence of defendant's actual intent to cause public
  inconvenience by obstructing traffic, the error was harmless because "we
  can say beyond a reasonable doubt that the result would have been the same
  in the absence of the error."  State v. Kinney, 171 Vt. 239, 244, 762 A.2d
  833, 838 (2000).
   
       ¶  17.  Defendant essentially, if not explicitly, admitted the
  disorderly conduct at trial.  Defendant testified that she deliberately
  stepped off the sidewalk to stand in the intersection of Routes 7 and 9,
  two public highways in downtown Bennington, holding an anti-war placard. 
  She admitted that her actions stopped and interfered with traffic, and that
  motorists were being inconvenienced and annoyed as a result.  Defendant
  admitted that, while aware her highway blockade was causing public
  inconvenience and annoyance, she repeatedly refused to move out of the way
  when requested by officers to do so.  Defendant further admitted that she
  was strongly tempted to return to the sidewalk, but prayed for the strength
  to remain, and then decided to remain, in the street blocking traffic. 

       ¶  18.  Defendant's testimony proved the elements of disorderly
  conduct as charged: that she obstructed vehicular traffic "with intent to
  cause public inconvenience or annoyance, in violation of 13 V.S.A.
  §1026(5)," and did so "purposely" under the Model Penal Code applied in
  Trombley, 174 Vt. at 460-61, 807 A.2d 403-04.  The Code, § 2.02(2)(a),
  states that a person acts "purposely" when:

    (i) if the element involves the nature of his conduct or a result
    thereof, it is his conscious object to engage in conduct of that
    nature or to cause such a result . . . .

  Defendant's intentional obstruction of traffic was not disputed.  That the
  motorists were inconvenienced and annoyed as a result, and defendant's
  awareness of same, were not disputed.  Having admitted that she was aware
  her conduct was causing public inconvenience and annoyance, defendant told
  the jury that she resisted the temptation to stop doing it.  Defendant told
  the jury that, inspired by prayer, she then consciously elected to continue
  causing public inconvenience and annoyance by continuing to block the
  public way.  In Model Penal Code terms, defendant admitted that, as of the
  time of deciding to continue obstructing traffic,  the "nature of [her]
  conduct" in obstructing traffic was to annoy and inconvenience the public,
  and admitted that it was her "conscious object to engage in conduct of that
  nature."  Id.
   
       ¶  19.  Nevertheless, defendant also explained to the jury, and
  argued on appeal, that in blocking traffic it was not her intent to
  inconvenience and annoy people.  Defendant denied such an intent, and
  testified that she only meant to show her sign, to share her anti-war
  information and to show resistance to the federal government.  So selective
  and implausible is this proposition that it does not achieve even the level
  of sophistry.  That defendant was also motivated by a non-criminal urge to
  communicate and show political opposition does not mutually exclude a
  contemporaneous and, in this case, manifest criminal intent to cause public
  inconvenience and annoyance. 

       ¶  20.  The majority posits that a finding of harmless error on this
  record usurps the jury's function to resolve a credibility contest or weigh
  testimony concerning defendant's intent, but there is no real dispute over
  what she did and intended.  The majority's case citations are inapposite. 
  There was no "swearing contest" here as described in State v. Marrington,
  73 P.3d 911, 917 (Or. 2003), nor was a "substantial portion" of the trial
  devoted to contested evidence of intent as in Sharma v. State, 56 P.3d 868,
  873-74 (Nev. 2002).  Nothing here approached the evidentiary duel over the
  influence of intoxication on defendant's intent presented in State v. Page,
  81 S.W.3d 781, 789-90 (Tenn. Crim. App. 2002), and no "substantial
  evidence" supports the claimed lack of criminal intent as was found on the
  record in State v. Ramirez, 945 P.2d 376, 382 (Ariz. Ct. App. 1998).  The
  dispute over intent in the instant case was not evidentiary, but
  rhetorical.  In contrast to the kidnapping defendant in State v. Sargent,
  156 Vt. 463, 467-68, 594 A.2d 401, 403 (1991), whose repeated testimony
  that "he did not know he was holding the victim against her will" was also
  supported by psychiatric and police testimony, the defendant here admitted
  to deliberately blocking traffic which she knew was causing public
  inconvenience and annoyance, and then admitted to deciding to continue
  doing so.  
   
       ¶  21.  My difference with the majority is not over who decides or
  what the verdict should be, but that the same guilty verdict was inevitable
  given defendant's admissions.  Defendant testified that she elected to
  continue obstructing traffic after knowing that it was causing public
  inconvenience and annoyance.  At that point of refusing to move, there can
  be no actual, real-world dispute that defendant acted "with intent," or
  "purposely," to cause the inconvenience and annoyance patently obvious to
  her and to the jury by deliberately obstructing traffic with a placard. 
  Where it is "clear beyond a reasonable doubt that a rational jury would
  have found the defendant guilty absent the [instruction] error," a finding
  of harmless error presents no invasion of the jury's fact finding process. 
  Neder v. United States, 527 U.S. 1, 18 (1999).

       ¶  22.  This case presents a situation almost identical to Trombley,
  where the substantially same erroneous jury instruction was deemed
  harmless.  Although Mr. Trombley was charged only with "purposely"
  assaulting another, the  trial court instructed that "purposely" meant that
  defendant either "acted with the conscious purpose of causing serious
  bodily injury or that he acted under circumstances where he was practically
  certain" to cause such injury.  Trombley, 174 Vt. at 460, 807 A.2d at 403. 
  While agreeing that the latter option erroneously extended culpability to
  knowing misconduct when only purposeful misconduct was alleged, this Court
  found the error harmless beyond a reasonable doubt because defendant
  admitted at trial that he intended to inflict such injury as a means of
  self-defense.  Id. at 462, 807 A.2d at 405.  Here, defendant admitted at
  trial that upon realizing that her obstruction did cause, and was causing,
  public inconvenience and annoyance, rather than moving as requested, she
  purposely continued to cause public inconvenience and annoyance.

       ¶  23.  Review for harmless error requires this court "to inquire if,
  absent the alleged error, it is clear beyond a reasonable doubt that the
  jury would have returned a guilty verdict regardless of the error. . . .
  Thus, analysis under the harmless error doctrine focuses on the evidence of
  guilt present in the record."  State v. Hamlin, 146 Vt. 97, 106, 499 A.2d
  45,52 (1985).  Harmless error is found even when necessary elements are
  omitted altogether from instructions in situations "where a reviewing court
  concludes beyond a reasonable doubt that the omitted element was
  uncontested and supported by overwhelming evidence, such that the jury
  verdict would have been the same absent the error."  Neder, 527 U.S. at 17. 
  The instant case is practically uncontested.  Defendant's testimony about
  her deliberate obstruction of traffic for the purpose of showing her sign,
  sharing her information and resisting government is entirely consistent
  with an intent to cause public inconvenience and annoyance.  Defendant's
  one-word denial (FN5) was belied by her own detailed description of her
  perception of the public inconvenience and annoyance resulting from her
  conduct and, afterwards, her decision to continue obstructing traffic.
   
       ¶  24.  Even if defendant's testimony is not understood as an
  admission to having a conscious object to cause public inconvenience and
  annoyance, harmless error does not depend on whether defendant "conceded
  the factual issue on which the error bore. . . . The question is whether,
  'on the whole record . . . the error . . . [is] harmless beyond a
  reasonable doubt.' "  Rose v. Clark, 478 U.S. 570, 583 (1986) (citation
  omitted).  Mere denial of the requisite intent does not preclude harmless
  error.  In cases of Sandstrom error, where trial courts erroneously
  instruct the jury to conclusively presume an element of criminal intent
  "the inquiry is whether the evidence was so dispositive of intent that a
  reviewing court can say beyond a reasonable doubt that the jury would have
  found it unnecessary to rely on the presumption."  Connecticut v. Johnson,
  460 U.S. 73, 97 n.5 (1983) (Powell, J., dissenting).  "Thus, the fact that
  respondent denied that he had [criminal intent], . . . does not dispose of
  the harmless-error question."  Rose, 478 U.S. at 583-84 (quotations and
  citation omitted).   
   
       ¶  25.  State v. Boise, 146 Vt. 46, 498 A.2d 495 (1985), and United
  States v. Hayward, 420 F.2d 142 (D.C. Cir. 1969), cited by the majority for
  holding that an erroneous instruction directing a verdict against a
  defendant on an element cannot be harmless error, are inapposite to the
  instant case where no verdict was directed.  In Boise, we reversed on the
  trial court's erroneous jury instruction in a DUI case that a necessary
  element-that the conduct at issue must occur upon a public highway-was
  "conceded," based on the trial court finding the element proven "as a
  matter of law." 146 Vt. at 48, 498 A.2d at 496-97.  In Hayward, the appeals
  court refused to find harmless error when the trial court erroneously
  instructed the jury that it "must" return a guilty verdict if it found the
  government disproved defendant's alibi defense.  420 F.2d at 144.  Unlike
  Boise and Hayward, nothing like a directed verdict was instructed in this
  case where the court mistakenly conflated "knowing" and "purposeful"
  conduct in its definition of criminal intent, but did not remove the intent
  element entirely from the jury's consideration.  

       ¶  26.  Even if the instruction below could be equated to a conclusive
  presumption, the majority erroneously relies on Johnson and its progeny, 
  State v. Martell, 143 Vt. 275, 465 A.2d 1346 (1983), for the  proposition
  that such an instructional error cannot be harmless.   Martell depends on a
  Johnson plurality opinion (FN6) for the idea that a conclusive presumption
  of criminal intent " 'is the functional equivalent of a directed verdict'
  and may never be considered harmless." Martell, 143 Vt. at 279-80, 465 A.2d
  at 1348 (citations omitted).   This underpinning of Martell, to the extent
  it ever existed, no longer stands.  In the subsequent matter of Carella v.
  California, 491 U.S. 263, 266 (1989), the Johnson plurality was ignored as
  any authority when the court remanded a case of unconstitutional
  instruction on a conclusive presumption of criminal intent for
  harmless-error review.  

       ¶  27.  Explicitly contradicting the supposed holding in Johnson, and
  contrary to the majority's logic here, the court in Carrella ruled that a
  "Sandstrom error is subject to the harmless error rule."  Id. (emphasis
  added). (FN7)  The Carrella court repeated its earlier holding in Sandstrom
  that, although a trial court's "mandatory directions directly foreclosed
  independent jury consideration of whether the facts proved established
  certain elements of the offenses . . . and even though the jury might have
  considered the presumption to be conclusive," the constitutional error was
  still subject to harmless-error analysis.  Id.  Thus, Martell's
  proposition, premised on Johnson, and on which the majority now relies,
  that an "instruction susceptible to interpretation by a reasonable juror as
  requiring a conclusive presumption of an essential element . . . may never
  be deemed harmless error," Martell, 143 Vt. at 280, 465 A.2d at 1348, was
  not, and is not, the law.
                    
       ¶  28.  Cited in Carella, and similarly ignoring Johnson, was the
  earlier holding in Rose v. Clark that the harmless-error test did apply to
  an erroneous rebuttable-presumption instruction that unconstitutionally
  shifted the burden of proof on the element of malice from the state to a
  murder defendant. 478 U.S. 570, 580-81 (1986).  Noting that constitutional
  errors do not generally require reversal of criminal convictions, id. at
  578-79, the court reiterated that "we have repeatedly reaffirmed the
  principle that an otherwise valid conviction should not be set aside if the
  reviewing court may confidently say, on the whole record, that the
  constitutional error was harmless beyond a reasonable doubt."  Id. at 576. 
  This principle applies regardless of whether the element is admitted or
  contested by defendant at trial, id. at 583, and extends to erroneous
  instructions that misdescribe or misstate a necessary element, as in this
  case.  See Neder, 527 U.S. at 9-10  (summarizing constitutional errors in
  instructions subject to harmless-error analysis, including "misstatement of
  element,"  Pope v. Illinois, 481 U.S. 497 (1987), (FN8) and "
  'misdescription of an element . . . characterized as an error of
  'omission.' "  California v. Roy, 519 U.S. 2, 5 (1996)).
   
       ¶  29.  If the jury in the instant case followed the erroneous, but
  only slightly less demanding instruction on "knowing," instead of the
  correct instruction on "purposeful" misconduct, the issue of intent was
  neither conclusively presumed nor taken away from the jury's determination. 
  Either instruction left to the jury the responsibility to find defendant
  not guilty or guilty depending on evidence relating to intent.  That there
  was hardly a substantive difference between the two standards of acting
  purposely versus knowingly, when compared to the uncontested proof in this
  case, was the product of defendant's testimony.  If defendant's testimony
  is not an admission to the charge of acting with intent to cause public
  inconvenience and annoyance, that exact same object was necessarily
  intrinsic to her admittedly conscious intent to obstruct traffic.  The
  intent to cause public inconvenience and annoyance is inseparable from
  defendant's declared decision to remain in traffic after knowing, not as a
  practical certainty, but as an absolute certainty, that her conduct was
  causing public inconvenience and annoyance.  Quite analogous was this
  court's observation in State v. Pratt, 147 Vt. 116, 118, 513 A.2d 606, 607
  (1986), (FN9) that "[w]hen a person points a revolver in the direction of
  another person at close range and pulls the trigger, the practical
  distinction between acting with the conscious objective of causing serious
  bodily injury and acting with practical certainty that one's conduct will
  cause such injury disappears."  If anything directed a verdict of guilt in
  this case, it was not the court's instruction, but the testimony of
  defendant. (FN10)
     
       ¶  30.  Accordingly, I would affirm the conviction.  I am authorized
  to say that Justice Dooley joins in this dissent.



                                       ______________________________
                                       Associate Justice




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                                  Footnotes


FN1.  See State v. Read, 165 Vt. 141, 147, 687 A.2d 944, 948 (1996) ("In
  1972, the Legislature amended Vermont's 'breach of the peace' statute to
  follow the 'disorderly conduct' language of [the Code.]  . . .  The major
  statutory change was the added requirement that the State prove, as an
  essential element of the offense, that a defendant acted with the intent to
  cause public inconvenience or annoyance, or with such recklessness as to
  create a risk of public inconvenience or annoyance.") (citations omitted). 

FN2.  The claim, in note 2 of the dissent, that in Martell we did not
  consider that Connecticut v. Johnson, 460 U.S. 73 (1983), was a plurality
  opinion is plainly incorrect.  To the contrary, we referred to the Johnson
  court as "sharply divided" and to the opinion as the "majority's plurality
  opinion."  Martell, 143 Vt. 275, 279, 465 A.2d 1346, 1348 (1983).  Thus, we
  were persuaded by the holding in Johnson despite its being a plurality
  decision.

FN3.  The dissent misunderstands our holding and posits that we are
  foreclosing a harmless-error analysis on review of all criminal cases
  involving a conclusive presumption or the equivalent (as we have here). 
  Not so; we recognize that there are situations in which a conclusive
  presumption could result in harmless error (e.g., where the defendant does
  not contest intent, where the defendant effectively concedes intent by
  pleading self-defense or insanity, or where the jury acquits the defendant
  on a lesser charge-indicating that they did not employ the presumption). 
  Here, however, defendant was essentially deprived of a jury trial because
  intent was the only issue on which she was tried, she presented sufficient
  evidence of non-criminal intent, and the instruction effectively took that
  one issue away from the jury.

FN4.  The dissent overstates defendant's admissions when it claims that in
  Model Penal Code terms, she "admitted that . . . the 'nature of [her]
  conduct' in obstructing traffic was to annoy and inconvenience the public,
  and . . . that it was her 'conscious object to engage in conduct of that
  nature.' " Post, ¶ 17.  To reach this conclusion, the dissent necessarily
  must infer an intent different than the one explicitly stated by defendant.

FN5.  After admitting her awareness of the inconvenient and annoying effects
  of her blockade, and her determination to continue her blockade, defendant
  was questioned by defense counsel: "Now, I'm going to ask you was that your
  intention  when you stood in the middle of the four corners with your sign,
  that it was it your intention to inconvenience and annoy people," defendant
  answered: "No."  By analogy, this was akin to claiming, after driving
  blindfolded and realizing this caused her to crash into traffic, that when
  she continued to do so, she did not intend to cause any collisions.

FN6.  The Martell court curiously refers to the "majority's analysis" in
  Johnson as "both persuasive and compelling," 143 Vt. at 279, 465 A.2d at
  1348, but there is no majority analysis.  The Johnson court split 4-4 as to
  whether Sanstrom error could never be harmless.  The ninth justice did not
  join in either opinion, but cast a vote only to affirm the state court's
  decision to decline review for harmless error for the benefit of the
  prosecution when it had no federal obligation to do so.  Johnson, 460 U.S.
  at 89-90 (Stevens, J., concurring).

FN7.  The Carrella court added, expressly contrary to the logic of Martell
  and the majority's analysis here: "Nor is Sandstrom error equivalent to a
  directed verdict for the state."  491 U.S. at 266 (quotations omitted).

FN8.  Pope also points out that "[t]o the extent that cases prior to Rose
  [such as Johnson] may indicate that a conviction can never stand if the
  instructions provided the jury do not require it to find each element of
  the crime under the proper standard of proof, . . . after Rose, they are no
  longer good authority."  481 U.S. at 503, n.7.

FN9.  In Pratt we declined to find reversible error in a conviction for
  attempted aggravated assault where the trial court instructed the jury that
  specific intent could be found if defendant "consciously intended serious
  bodily injury or was practically certain his conduct would cause it."  147
  Vt. at 118, 513 A.2d at 607.

FN10.  The majority's logic stands harmless-error analysis on its head to
  prevent a finding of harmless error precisely when the error is most
  harmless.  The rule of harmless error recognizes that in circumstances when
  the state's evidence is overwhelming, and the defense case is weak, the
  reviewing court need not overturn a conviction due to an error that is
  objectively meaningless.  The majority posits, instead, that when the
  defense is so weak, such error has the effect of directing the verdict and
  so harmless error must be foreclosed when it is most warranted.


