Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-356

                                     SEPTEMBER TERM, 2014

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Timothy P. Perley                                     }    DOCKET NO. 1169-11-12 Frcr

                                                            Trial Judge: James R. Crucitti

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals from a jury conviction of resisting arrest, arguing that there was
insufficient evidence to convict him and that the prosecutor’s mischaracterization of the evidence
requires reversal of the conviction. We affirm.

        At approximately 11:00 in the evening of November 9, 2012, a state trooper observed
defendant pull his vehicle into a neighbor’s driveway before reaching the trooper, who had
pulled to the side of the road ahead of defendant because of his belief that defendant had
committed a traffic violation. When no one exited defendant’s vehicle, the trooper activated his
blue lights and approached the vehicle. The video camera in the trooper’s cruiser recorded what
transpired over the next several minutes. The trooper observed defendant sitting in the front
passenger seat of the vehicle. When the trooper asked defendant why he had moved to the
passenger seat, defendant denied having done so. Upon smelling a strong odor of intoxicants,
observing defendant’s watery and bloodshot eyes, and hearing defendant’s mumbled speech, the
trooper ordered defendant out of the car, patted him down, had him perform dexterity tests, and
gave him a preliminary breath test, which revealed a blood-alcohol concentration of more than
twice the legal limit.

        The trooper then informed defendant that he was under arrest. Defendant pleaded with
the trooper not to arrest him. When the trooper attempted to handcuff him, a scuffle ensued, and
the trooper threw defendant to the ground to subdue him. Defendant broke free from the
trooper’s grasp and ran to the neighbor’s house yelling for help. The trooper used a Taser on
defendant, to no avail. Eventually, after the neighbor came out and encouraged defendant to
cooperate, the trooper was able to handcuff defendant and place him under arrest.

      Defendant was charged with driving while intoxicated, resisting arrest, disorderly
conduct, simple assault on a police officer, and escape from custody. The trial court dismissed
the escape-from-custody charge before trial. Following a one-day trial, the jury convicted
defendant of driving while intoxicated and resisting arrest but acquitted him of disorderly
conduct and assault on a police officer. The trial court denied defendant’s motion for judgment
of acquittal on the resisting arrest charge.

        On appeal, defendant first argues that the trial court erred by denying his motion for
judgment of acquittal because the evidence was insufficient for the jury to convict him of
resisting arrest, considering the elements of the crime as instructed by the trial court. According
to defendant, there was no evidence that defendant engaged in any specific conduct that
amounted to an open physical act coupled with an intent to resist arrest. He contends that having
his hands in his pocket and pleading with the officer not to arrest him was not an open physical
act with intent to resist arrest sufficient for conviction under Vermont’s resisting arrest statute,
13 V.S.A. § 3017(a).

        In reviewing the trial court’s denial of a motion for judgment of acquittal, “we view the
evidence in the light most favorable to the prosecution, . . . and determine whether the State’s
evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.” State v.
Devoid, 2010 VT 86, ¶ 9, 188 Vt. 445 (quotation omitted). Section 3017(a) criminalizes an
intentional attempt “to prevent a lawful arrest [from]. . . being effected or attempted by a law
enforcement officer.” The trial court instructed the jury, in relevant part, that it could convict
defendant of resisting arrest only if it found that he intentionally attempted to prevent a lawful
arrest. The court further charged the jury that an attempt to prevent a lawful arrest requires an
open physical act coupled with a purposeful and conscious intent, which may be shown by
expressions to others or conduct. The court stated that defendant’s mistaken belief as to the
unlawfulness of the arrest could not be a defense to the charge, but that the officer would not be
performing a lawful duty if he used excessive force in dealing with defendant prior to
defendant’s conduct giving rise to the charge.

        In considering defendant’s motion for judgment of acquittal, the court, like the jury, had
the benefit of not only the witnesses’ testimony but also the video recording of the incident taken
from the cruiser’s camera. The court determined that defendant’s conduct of pulling away from
the trooper and pulling his hands away to prevent the trooper from handcuffing him, after the
trooper told him he was under arrest and directed him to put his hands behind his back, was
sufficient to satisfy the elements of the crime and support the jury’s verdict.

        We agree. Viewing the evidence most favorably to the prosecution, there was ample
evidence, including the video recording of the incident, for the jury to determine that, upon being
told that he was under arrest and to turn around, defendant pulled away from the trooper and
attempted to prevent the officer from handcuffing him. Although defendant was wearing a
heavy coat that likely complicated the trooper’s attempt to handcuff him, defendant’s actions
were such that the jury could conclude beyond a reasonable doubt that he was intentionally
attempting to interfere with the trooper’s attempt to handcuff him. Indeed, as he pulled away and
attempted to prevent the trooper from handcuffing him, defendant repeatedly indicated that he
did not want to be arrested.

        Focusing on one sentence of the trial court’s oral ruling on his motion for judgment of
acquittal, defendant contends that, contrary to its instruction to the jury on the elements of

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resisting arrest, the court determined that merely not complying with the trooper’s request was
sufficient to satisfy § 3017(a)—even without an overt physical act of resistance—thereby
effectively shifting the burden of proof to the defendant to demonstrate that he did comply with
the officer’s request. We disagree with this characterization of the trial court’s ruling. As noted,
the trial court found that defendant’s actions in moving away from the officer while pulling his
hands away to avoid being handcuffed was sufficient to support the jury’s conviction for
resisting arrest.

        Defendant also argues that the prosecutor’s mischaracterization during opening and
closing arguments of what defendant said when the trooper attempted to handcuff him rises to
the level of plain error and requires reversal of his conviction. Specifically, defendant argues
that the prosecutor mischaracterized the evidence by stating to the jury during both opening and
closing arguments that defendant had said “you’re not taking me” as he pulled away from the
trooper. According to defendant, he never made such a statement, and the arresting officer never
stated that he made such a statement. In his view, the prosecutor’s mischaracterization of the
evidence was plain error requiring reversal because the alleged statement was not in evidence
and directly affected the defense’s theory that he did not have the specific intent required to resist
arrest. Cf. State v. Rehkop, 2006 VT 72, ¶¶ 38-39, 180 Vt. 228 (finding plain error where
prosecutor during closing argument relied upon statements from another hearing to question
credibility of defense witnesses and expressed his belief that defense witnesses lied, suggesting
that he would have charged them with perjury but for difficulty of proving they could remember
what they claimed not to be able to remember).

        We find no plain error requiring reversal here. Id ¶ 37 (stating the finding plain error
requires showing that error struck at heart of defendant’s constitutional rights or resulted in
miscarriage of justice). The video recording of what defendant said at the critical moment is not
entirely clear. When the trooper told defendant that he was under arrest, defendant pleaded with
him not to arrest him, repeatedly stating, “Can we not do this?” For his part, the trooper
repeatedly told defendant to turn around, and on two occasions stated, “Don’t make me fight
you.” Finally, the officer again told defendant to turn around and attempted to turn him around.
Defendant then pulled away, saying “No, I’m not. You’re not going to ____ me.” The missing
word is not sufficiently audible on the video to establish it with any certainty. He may have said
“you’re not going to ‘fight’ me,” following on the statement of the officer, but it can be
interpreted as saying “you’re not going to ‘take’ me.”

        In his closing argument, the prosecutor stated: “And then as you can clearly see and hear
just before the officer lays his hands on the defendant he states you’re not taking me.” Defense
counsel began his closing argument, in response to the prosecutor, by reminding the jury that the
prosecutor’s interpretation of what defendant said—specifically, “you’re not taking me”—was
not evidence and that the jury must go back and determine for itself what was actually said. In
fact, the video recording was in evidence, and the jury could determine for itself what was
actually said. Moreover, immediately before oral arguments and during its charge following the
arguments, the trial court cautioned the jury that the arguments of counsel were not to be
considered evidence. Under these circumstances, even if we found that the prosecutor misquoted
defendant, we cannot conclude that there was plain error such as to warrant a new trial. Cf. State
v. Broe, 146 Vt. 135, 140-41 (1985) (finding that prosecutor’s inaccurate statement as to


                                                  3
witness’s testimony was not plain error, given evidence against defendant and trial court’s
repeated admonition that jury could consider only testimony of witnesses).

       Affirmed.

                                            BY THE COURT:


                                            _______________________________________
                                            John A. Dooley, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice

                                            _______________________________________
                                            Beth Robinson, Associate Justice




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