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@vermont.gov 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.


                                          2016 VT 68

                                         No. 2014-451

State of Vermont                                              Supreme Court

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

Jason L. Gagne                                                January Term, 2016


Martin A. Maley, J. (motion to exclude); Alison S. Arms, J. (final judgment)

John T. Lavoie, Franklin County Deputy State’s Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Marie Horbar,
 Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.


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


        ¶ 1.   ROBINSON, J.       This appeal stems from a road rage incident in St. Albans in

which defendant Jason Gagne chased a couple across town, eventually pulling up next to their

truck and pointing a rifle at them. Before trial, defendant moved to suppress the results of his

alcohol breath test on the ground that he was not able to meaningfully communicate with his

lawyer before submitting to the test due to his belief—which turned out to be well-founded––that

his conversation with counsel was being recorded by the police. The trial court denied the

motion, and following a trial, a jury convicted defendant of aggravated assault, simple assault,

reckless endangerment, driving under the influence, and negligent operation of a vehicle. On

appeal, defendant argues that the trial court erred by denying his motion to suppress, failing to

instruct the jury that the definition of “threat” for the purposes of aggravated assault and simple
assault is based on an objective standard, and allowing convictions for aggravated assault, simple

assault, and reckless endangerment for the same conduct, in violation of defendant’s double

jeopardy rights. We reverse the trial court’s ruling on the suppression motion and reverse and

remand defendant’s conviction for driving under the influence; uphold the trial court’s jury

instructions; and affirm the aggravated assault and reckless endangerment convictions, but vacate

the simple assault conviction on double jeopardy grounds.

       ¶ 2.    The evidence, viewed “in the light most favorable to the State as the prevailing

party,” State v. McCarthy, 2012 VT 34, ¶ 2, 191 Vt. 498, 48 A.3d 616, is as follows.

Complainants are an elderly couple. At trial, wife testified that on December 29, 2013, she and

her husband left their home to drive in their truck to Wal-Mart. As the couple was traveling,

defendant, who was driving a sedan, pulled out from the street to their right and made a left-hand

turn in front of them. Wife, who was driving, slammed on her brakes to avoid a collision and

honked her horn. Defendant “flipped [wife] the bird,” and continued on his way in the opposite

direction of the couple.

       ¶ 3.    After continuing on, wife noticed in her rearview mirror that defendant had

returned and was driving close behind the truck.          When they stopped at an intersection,

defendant pulled up next to the right-hand side of the truck and spewed obscenities at the couple.

Once the light turned green, the couple turned left, and defendant turned right.

       ¶ 4.    Still on their way to Wal-Mart, the couple traveled a few car lengths before

defendant reappeared close behind their truck’s bumper. Wife described defendant as angry with

large eyes. She was “scared to death” and phoned the police. The couple stayed on the line with

the 911 dispatcher throughout the rest of the incident.

       ¶ 5.    After passing through several lights, the couple stopped at an intersection and

defendant pulled next to them in the right-hand turn lane. At that point, wife saw defendant

point a gun toward her husband. The gun, which wife described as a rifle with a silver scope,


                                                 2
was laid across defendant’s left arm and held by his right hand. Wife testified that defendant had

“malice in his eyes” and that she thought both she and her husband were going to die because of

defendant’s demeanor and constant “dogging” of the couple. When the light turned green, wife

was relieved to see defendant taking the right-hand turn.

       ¶ 6.    When the couple arrived at the turn for Wal-Mart, defendant once again appeared

right behind the couple close to the truck’s bumper. After entering the parking lot, the couple

made a U-turn, and drove out of the parking lot back onto the main road, heading toward the St.

Albans Police Department. At the next light, defendant again appeared behind the couple, and

wife saw the gun briefly before defendant put it on the passenger side of his car. Once the

couple entered downtown St. Albans, they turned towards the St. Albans Police Station and the

police apprehended defendant.1

       ¶ 7.    Officer Paul Morits was the arresting officer.        He testified that when he

approached defendant’s car after stopping him in a parking lot, he saw a gun on the seat and two

empty beer bottles. Officer Morits ordered defendant from the vehicle, handcuffed him, and had

defendant stand next to the police cruiser. While defendant was standing next to the police

cruiser, Officer Morits noticed alcohol on defendant’s breath and noticed that defendant was

unbalanced on his feet. Defendant was transported to the St. Albans police station.

                                   I. The Suppression Motion

       ¶ 8.    Defendant’s suppression motion arises from events at the police station when

defendant was processed for driving under the influence (DUI). In connection with that motion,

the trial court made the following findings, which defendant does not challenge on appeal. The

standard practice in the St. Albans Police Department is to record DUI processing, but to turn off

the recording device when a defendant is given a chance to consult with an attorney. In this case,

when defendant was about to speak to his attorney by phone, Officer Morits left the room, but

       1
            Husband largely corroborated wife’s testimony regarding defendant’s conduct and
testified that he thought defendant was going to shoot him.
                                                 3
forgot to turn off the recording device. As a consequence, defendant’s conversation with counsel

was recorded. Officer Morits did not disclose to defendant that the processing was being

recorded. Defendant never asked the officer if he was being recorded, but throughout the

booking process, defendant repeatedly stated “it’s all being recorded,” and further stated “I have

no rights.” Just prior to his telephone conversation with an attorney, defendant stated “I want to

talk to a public defender, but I know what they will say . . . it doesn’t matter, everything is being

recorded anyway.” Officer Morits did not respond to defendant’s repeated statements that he

knew that everything was being recorded, and defendant did not specifically request that the

police turn off the recording device.

       ¶ 9.    After a thirty minute conversation between defendant and counsel, Officer Morits

returned and told defendant that his time with his attorney had ended. Officer Morits asked

defendant if he would submit to a breath test, and defendant agreed. Defendant’s breath sample

resulted in a blood-alcohol concentration (BAC) of 0.121%.

       ¶ 10.   Defendant moved to suppress the breath test results, arguing that defendant’s

belief that his conversation with counsel was being recorded caused him to feel inhibited in

seeking legal advice.

       ¶ 11.   The trial court disagreed and denied defendant’s motion. The court noted that 23

V.S.A. § 1202 provides that a suspect has a right to consult with an attorney prior to either

submitting to a breath test or refusing one. The trial court explained that this consultation must

be meaningful and reasonably private, but the right of privacy is not absolute and must be

balanced against security interests. The court concluded that, although defendant thought his

conversation was being recorded, his belief was not objectively reasonable, and he was not

entitled to suppression of the breath test results. Defendant renews his arguments on appeal.

       ¶ 12.   In considering the parties’ arguments, we consider first the applicable standard of

review, and then the merits.


                                                 4
       ¶ 13.   With respect to the standard of review, we reject the State’s argument that the trial

court’s ruling was based on a factual finding subject to deferential review. When reviewing a

motion to suppress, “we review the trial court’s legal conclusions de novo and its findings of fact

under a clearly erroneous standard.” State v. Oney, 2009 VT 116, ¶ 11, 187 Vt. 56, 989 A.2d

998. The State argues the trial court’s ruling was based on a credibility finding—namely, the

court did not believe defendant’s testimony that he felt inhibited. Our reading of the trial court’s

decision, however, leads us to conclude that the trial court ruled that even if defendant believed

he was being recorded and even if he personally felt inhibited, his belief was not reasonable.

That conclusion is a legal conclusion that we review anew, without deference. See, e.g., State v.

Weisler, 2011 VT 96, ¶¶ 18-20, ¶ 25, 190 Vt. 344, 35 A.3d 970 (holding in context of consent to

search, trial court’s conclusion regarding whether reasonable person in defendant’s

circumstances would feel free to refuse officer’s request to search subject to nondeferential

review); State v. Muntean, 2010 VT 88, ¶ 20, 189 Vt. 50, 12 A.3d 518 (noting in context of

whether defendant was in custody for purposes of Miranda warnings that trial court’s

determination regarding circumstance surrounding interrogation and whether reasonable person

would feel at liberty to leave subject to nondeferential review).

       ¶ 14.   Turning to the substance of defendant’s argument, when the police unjustifiably

monitor a defendant’s conversation with counsel, and thereby limit the defendant’s ability to

meaningfully engage with counsel, that conduct violates 23 V.S.A. § 1202(c). That statute

provides that “[a] person who is requested by a law enforcement officer to submit to an

evidentiary test or tests has a right . . . to consult an attorney before deciding whether or not to

submit to such a test or tests.” Id. The purpose of this provision is to ensure that defendants are

able to freely and privately communicate with legal counsel. Pfeil v. Rutland Dist. Ct., 147 Vt.

305, 309, 515 A.2d 1052, 1055 (1986). This right to counsel was created by the Legislature to

address the real concern that “any refusal to be tested not be lightly decided.” State v. Carmody,


                                                 5
140 Vt. 631, 636, 442 A.2d 1292, 1295 (1982). Accordingly, in order to satisfy this right, a

defendant must be given “an opportunity to have a meaningful consultation with counsel” that is

reasonably private. State v. West, 151 Vt. 140, 144, 557 A.2d 873, 876 (1988). This right to

privacy is not absolute––“the degree of privacy an arrestee should be afforded . . . must be

determined by balancing the individual’s right to consult privately with counsel against society’s

interest in obtaining or preserving important evidence.” Id. A violation of 23 V.S.A. § 1202(c)

therefore occurs when “the police unjustifiably monitor a defendant’s legal consultation and the

monitoring inhibits, coerces, or otherwise restricts the defendant’s ability to meaningfully engage

with [counsel].” State v. Sherwood, 174 Vt. 27, 31, 800 A.2d 463, 466 (2002).

       ¶ 15.   In assessing defendant’s claim that a lack of privacy caused him to feel inhibited

in engaging with counsel, we apply an objective test. West, 151 Vt. at 145, 557 A.2d at 876.

We look at the totality of the circumstances and ask “how a reasonable person in the defendant’s

position would have understood the situation.” Id., 557 A.2d at 877.

       ¶ 16.   Our analyses in two prior decisions make it clear that the critical question in a

case like this—involving the recording of a defendant’s communications with counsel or a

defendant’s belief that the police are recording those communications––is whether the defendant

reasonably felt inhibited in communicating with counsel such that he or she was denied

meaningful consultation with an attorney. See Sherwood, 174 Vt. at 27, 800 A.2d at 463; State

v. Powers, 2004 VT 39, ¶ 7, 176 Vt. 444, 852 A.2d 605. In Sherwood, the defendant was

arrested for DUI and was given an opportunity to speak with a lawyer before deciding whether to

take a breath test. However, unbeknownst to the defendant, the entire conversation was video

and sound recorded. When the defendant learned of the video recording, he sought dismissal of

his charges on the basis that the secret recording violated 23 V.S.A. § 1202(c). 147 Vt. at 29,

800 A.2d at 465. The trial court found that the State did not have a legitimate security concern in

recording the defendant, but nonetheless refused to dismiss his charges because he failed to show


                                                6
he was prejudiced by the recording. The defendant appealed, and we affirmed. In reaching our

conclusion, we held that while the defendant’s right to privacy was indeed violated, the

defendant nevertheless had a meaningful conversation with his attorney because he never

testified that he felt inhibited in his consultation. Id. at 31, 800 A.2d at 466. The critical fact in

Sherwood was that “defendant did not feel inhibited in his conversation, presumably because he

was unaware it was being recorded.” Id.

       ¶ 17.    In Powers, the defendant was arrested and processed for DUI. During processing,

the defendant asked the interviewing officer if the conversation was being recorded either by

audio or video, and the officer told the defendant yes as to both. After the officer read the

defendant his rights under 23 V.S.A. § 1202(c), the defendant requested a consultation with an

attorney before submitting to an evidentiary breath test. The officer dialed the public defender,

left the room, and turned off the audio tape, but not the video. The officer never told the

defendant the recording had been turned off. After the State filed DUI charges against the

defendant, he moved to suppress evidence of his refusal to take the evidentiary test. At the

suppression hearing, he testified “I didn’t feel comfortable discussing my situation because I

wasn’t sure if there was something I would say that would be held against me.” Powers, 2004

VT 39, ¶ 3. The trial court denied the motion to suppress, concluding that the defendant failed to

demonstrate a connection between his inhibition and his subsequent decision to refuse the breath

test. Id. ¶ 4. We reversed.

       ¶ 18.    In reaching our conclusion, we noted that Powers presented the mirror image of

Sherwood. Specifically, we noted that, in contrast to Sherwood, in Powers, the defendant

reasonably believed he was being recorded, despite the officer turning off the recording

equipment.     Powers, 2004 VT 39, ¶ 9.        Further, we found the defendant did not have a

meaningful consultation with counsel because he testified that he felt inhibited by that

conversation. Id. ¶ 10. That inhibition was objectively reasonable, as evidenced by the fact that


                                                  7
even the state’s attorney conceded that under similar circumstances, he would feel inhibited. Id.

We therefore concluded that “the perceived monitoring caused [the] defendant to feel inhibited

from asking his attorney questions,” warranting suppression of his refusal to submit to the breath

test. Id. ¶ 13.

        ¶ 19.     This case is closer to Powers than it is to Sherwood, and we conclude on the basis

of the trial court’s factual findings that a reasonable person in defendant’s position under the

circumstances of this case would feel inhibited in conferring with counsel. The trial court found

that defendant repeatedly stated to the police officer his belief that everything, including his

conversation with counsel, was being recorded, yet the police officer said nothing to contradict

defendant’s belief. Although Powers is a stronger case in that the police officer specifically told

the defendant that he was being recorded, a reasonable person in defendant’s circumstances here

could conclude that the conversation was being recorded given the officer’s silence in response

to defendant’s multiple statements that he knew he was being recorded. Accordingly, the motion

to suppress should have been granted, and we reverse the judgment of conviction for driving

under the influence.

                                          II. Jury Instructions

        ¶ 20.     On appeal, defendant challenges the trial court’s instructions relating to the

aggravated assault charge as well as the simple assault by physical menace charge. Because the

court’s instructions concerning these respective charges were different, and given the possibility

that the two arguments on appeal are subject to different standards of review, we review each

challenge separately.

                                          A. Aggravated Assault

        ¶ 21.     In instructing the jury on the aggravated assault charge, the trial court listed four

essential elements to the crime: (1) defendant; (2) was armed with a deadly weapon; (3)

threatened to use the deadly weapon; and (4) intended to threaten the complainants. In further


                                                    8
defining the third element, the court explained, “To threaten another person is to communicate

by word or by deed an intention to inflict harm on the other person.” The trial court described

the fourth element as follows:

               The last essential element is that [defendant] intended to threaten
               another person. The State must have proven that [defendant]
               placed another person in fear of imminent bodily injury and that
               that [defendant] did not act inadvertently, because of mistake, or
               by accident. In order for you to find that [defendant] acted
               intentionally, you must find that it was his conscious objective to
               threaten another person.

The written instructions provided to the jury were different with respect to this last element.

Rather than requiring that the State prove that defendant placed another person in fear of

imminent bodily injury, the instructions required that the State prove that defendant “intended to

place another person in fear of imminent bodily injury.”

       ¶ 22.   On appeal, defendant argues that the trial court erred in failing to instruct the jury

that a threat is evaluated from the perspective of a reasonable person and not on the basis of

whether the complaining witnesses felt threatened.2 In considering the instructions, we review

the charge as a whole to determine whether the instruction conveys the “true spirit and doctrine

of the law, and there is no fair ground to say the jury has been misled by it.” State v. Streich, 163

Vt. 331, 353, 658 A.2d 38, 53 (1996) (quotation and citation omitted). We will reverse based on

faulty instructions only if the instructions, viewed in this light, “undermine confidence in the

jury’s verdict.” State v. Kolibas, 2012 VT 37, ¶ 11, 191 Vt. 474, 48 A.3d 610 (quotation

omitted).

       ¶ 23.   Defendant is correct that whether conduct amounts to a threat is generally

discerned from the perspective of a reasonable person under similar circumstances. In State v.

Cahill, 2013 VT 69, 194 Vt. 335, 80 A.3d 52, we considered the definition of “threat” under the


       2
           Our standard of review on appeal is contested, as the State argues that defendant did
not adequately preserve his objection and defendant contends that he did. Because we conclude
that the court’s instruction were not error at all, we need not resolve this dispute.
                                                    9
aggravated assault statute. The defendant in that case was angry that his neighbor’s farmhand

was spreading manure too close to the defendant’s property. He strode onto the field armed with

a .45 pistol and stopped about twenty-five yards from the farmhand’s truck. “[The] 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.” Id. ¶ 3. At the defendant’s trial for

aggravated assault, the farmhand testified that when the defendant pointed the gun at him he

“was pretty much looking down the barrel,” but that the defendant’s actions did not cause him

fear. Id. ¶ 5. On appeal, we affirmed the trial court’s aggravated assault instruction. Of

significance to this case, we noted that the trial court’s instruction defining threat “correctly

directed the jury to measure the effect of [the] defendant’s communication according to the

perception of a reasonable person, rather than the subjective fearlessness of the farmhand.” Id.

¶ 18.

        ¶ 24.   Defendant is also correct that in a portion of its spoken instruction concerning the

intent element of the aggravated assault charge, the trial court improperly required the State to

prove “that [defendant] placed another person in fear of imminent bodily injury,” rather than

focusing the jury on the effect of defendant’s words or deeds on a reasonable person in similar

circumstances. But we conclude that any error in this portion of the court’s aggravated assault

instruction is harmless in the context of the overall instruction and given the record in this case.

        ¶ 25.   We reach this conclusion for several reasons. First, in the aggravated assault

instruction, in defining “threaten,” the trial court explained, “[t]o threaten another person is to

communicate by word or by deed an intention to inflict harm on the other person.” This

instruction did not tie the definition of “threaten” to the effect of the communication on the

individual allegedly threatened by defendant, but instead described a characteristic of the

communication—its conveying an intent to inflict harm—as a necessary element of the charge.

Nothing in the court’s instruction suggests that the determination of whether a communication


                                                 10
conveys such an intent is a subjective one that turns on the victim’s perception. See State v.

Jones, 2008 VT 67, ¶ 23, 184 Vt. 150, 955 A.2d 1190 (“If the jury charge as a whole breathes the

true spirit and doctrine of the law, we will uphold it.”). While the court’s oral instruction that the

State had to prove that defendant placed another person in fear of imminent bodily injury may

have imposed on the State a burden it did not in fact bear, the errant oral instruction did not

purport to relieve the State of proving that defendant communicated an intent to inflict harm.

       ¶ 26.   Second, as set forth below, the court’s instruction concerning simple assault by

physical menace required the State to prove (1) that defendant attempted to put another person in

fear of imminent serious bodily injury, and (2) “a threat, by word or act, to inflict physical injury

upon another person.” The court expressly noted that the State did not have to prove that the

victim actually was in fear of serious bodily injury, so nothing about this instruction suggested

that the subjective effect of defendant’s actions on complainant was relevant. The jury’s guilty

verdict on the properly charged simple assault charge reflects its conclusion that the State proved

that defendant intended to threaten and did threaten the victims—the same elements at issue in

connection with the aggravated assault charge.

       ¶ 27.   Third, the court’s written instructions, which it distributed to the jury before it

orally charged the jury, did not contain the improper language directing the jury’s attention to the

victims’ subjective reaction of fear. Instead, the written instructions properly directed the jury to

consider defendant’s intent to place another in fear of serious bodily injury.

       ¶ 28.   And finally, defendant’s argument of prejudice requires a view of the evidence

that strains credulity. Defendant argues that he was prejudiced by the court’s failure to specify

that in assessing a threat—an expression of “an intention to inflict harm on the other person”––

the jury should consider the perspective of a reasonable person to whom the communication is

directed, and not necessarily the subjective experience of these complainants. Even if the court’s

omission was error, defendant was only harmed if a reasonable jury could conclude on this


                                                 11
evidence that defendant’s following the couple through town and pointing a gun at them while

next to them at a stop light would not cause a reasonable person to fear imminent bodily harm.

We understand defendant’s argument that due to the height of the truck windows as compared to

the car, any subjective fear the complainants felt was not objectively reasonable, but we cannot

agree on this record that any reasonable jury could have concluded that a reasonable person

would not feel threatened under the circumstances.

                              B. Simple Assault by Physical Menace

       ¶ 29.   In instructing the jury on the elements of simple assault by physical menace, the

court listed three elements: (1) defendant; (2) attempted to put another person in fear of

imminent serious bodily injury; and (3) did so by using physical menace. With respect to the

second element, the court explained that the State must prove that defendant acted with the

conscious objective of putting another person in fear of imminent serious bodily injury, and that

the State need not prove that the victim actually was in fear of serious bodily injury. The court

defined “physical menace” as “a threat, by word or act, to inflict physical injury upon another

person.”

       ¶ 30.   As with the aggravated assault charge, defendant argues that the trial court erred

in failing to instruct the jury that the threat underlying the “physical menace” element of the

charge must be assessed from the perspective of a reasonable person, rather than the individual

victims.

       ¶ 31.   In contrast to our review of the aggravated assault charge, we review defendant’s

objection to the simple assault instruction for plain error because defendant did not raise this

objection to the simple assault instruction in his post-charge objection. See V.R.Cr.P. 30; State

v. Rounds, 2011 VT 39, ¶ 19, 189 Vt. 447, 22 A.3d 477 (absent an objection before the jury

retires, “any claim of error is waived and we must review any appealed issue under a plain error

standard”). “Plain error will be found only in rare and extraordinary cases where the error is


                                               12
obvious and strikes at the heart of defendant’s constitutional rights or results in a miscarriage of

justice.” State v. Bruno, 2012 VT 79, ¶ 44, 192 Vt. 515, 60 A.3d 610 (citation and alteration

omitted).

       ¶ 32.   The trial court’s simple assault instruction does not constitute plain error, if error

at all. In contrast to the component of the court’s oral aggravated assault instruction noted

above, nothing in the simple assault instruction suggested that the threatening character of

defendant’s conduct should be determined with reference to the victims’ subjective fear. In fact,

the court clearly instructed just the opposite, explaining, “[t]he state need not have proven that

the victim actually was in fear of serious bodily harm.” This was an accurate statement of the

law. See State v. Jackson, 2008 VT 71, ¶ 16, 184 Vt. 173, 956 A.2d 1126 (noting in context of

admissibility of evidence, statements by victim that victim himself felt fear are irrelevant to fear

element contained in simple assault statute). Moreover, the instruction as a whole properly

placed the focus on the objective character of defendant’s words or acts—whether they conveyed

an intent to inflict physical injury upon another person—rather than the reaction of the specific

targets of those words or acts. The simple assault instruction did not amount to plain error.

                                       III. Double Jeopardy

       ¶ 33.   Defendant’s final argument is that given the charges and jury instructions in this

case, he cannot be convicted of aggravated assault with a deadly weapon, simple assault by

physical menace, and reckless endangerment because of double-jeopardy constraints. He argues

that this Court should dismiss the greater convictions on account of the double-jeopardy

violations.

       ¶ 34.   The Double Jeopardy Clause provides that no person may “be subject for the

same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see also Benton

v. Maryland, 395 U.S. 784, 795 (1969) (noting that Fifth Amendment has been incorporated into

Fourteenth Amendment and applies to States). The Clause prohibits second or subsequent


                                                13
prosecutions for the same offense as well as multiple impositions of punishment for an offense.

State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998). Accordingly, while the legislative

branch is free to define crimes and fix punishments, courts cannot impose more than one

punishment for the same offense. “The Clause is best understood . . . as limited to assuring that

the court does not exceed its legislative authorization.” State v. Neisner, 2010 VT 112, ¶ 11, 189

Vt. 160, 16 A.3d 597 (quotation omitted). The Clause does not preclude the Legislature from

imposing multiple punishments for the same conduct, provided the intent to do so is made clear.

Grega, 168 Vt. at 382, 721 A.2d at 458. Hence, “[w]hen a defendant is tried in a single trial for

two statutory offenses that criminalize the same conduct, whether or not a conviction and

sentence may be had under each statute is a question of legislative intent, not constitutional

prohibition.” Id.; Missouri v. Hunter, 459 U.S. 359, 368 (1983) (noting that where legislative

branch intended to impose multiple punishments for same conduct, “imposition of such

sentences does not violate the Constitution” (citation omitted)).

       ¶ 35.   When there is no explicit statement of legislative intent to impose multiple

punishments, “we apply as a rule of statutory construction the test first enunciated by the

Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932).” State v. Ritter, 167

Vt. 632, 632, 714 A.2d 624, 625 (1998) (mem.). The Blockburger test seeks “to divine whether

the legislature intended to punish two separate offenses or one.” Grega, 168 Vt. at 382, 721 A.2d

at 458-59. We consider two offenses to be the same offense for double-jeopardy purposes unless

each offense “requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304.

If neither offense requires proof of a fact that the other does not, then a presumption arises that

the Legislature did not intend to authorize the imposition of cumulative punishments for two

offenses. Grega, 168 Vt. at 384-85, 721 A.2d at 460. This presumption may be overcome, but

only by clear contrary legislative intent. Id. at 385, 721 A.2d at 460. In making this assessment,

we consider “the elements of the crimes as they were charged.” Neisner, 2010 VT 112, ¶ 12.


                                                14
       ¶ 36.   Whether multiple convictions run afoul of double jeopardy limitations is a

question of law that we review anew, without deference. Id. ¶ 11.

                             A. Aggravated Assault and Reckless Endangerment

       ¶ 37.   Defendant argues that in order to convict him of both crimes, the State had to

prove the following elements for both the aggravated assault charge and the reckless

endangerment charge: (1) that defendant had a gun; (2) that defendant threatened to use the gun

by pointing it towards another person; and (3) that when defendant pointed the gun at

complainants he had the specific intent (or a lesser element of intent for the reckless

endangerment charge) to threaten to use the gun. Accordingly, since both the aggravated assault

and the reckless endangerment charges required proof of identical elements, defendant argues,

the Blockburger test is not satisfied, and defendant cannot be convicted of both crimes.

       ¶ 38.   We conclude that in this case each of these charges—aggravated assault and

reckless endangerment—requires proof of an element not required for the other charge.

       ¶ 39.   The aggravated assault charge requires proof of an intent to threaten others, but

does not require any proof that defendant placed them in actual danger. The aggravated assault

statute provides, “A person is guilty of aggravated assault if the person . . . is armed with a

deadly weapon and threatens to use the deadly weapon on another person.”                13 V.S.A.

§ 1024(a)(5). The essential elements of the charge, as the trial court instructed the jury, are that

the defendant (1) was armed with a deadly weapon; (2) threatened to use the deadly weapon; and

(3) intended to threaten the complainant. The State need not prove that the complainants were

actually in danger in order to prove the elements of aggravated assault––it need only show that

defendant was armed with a deadly weapon and intended to communicate by word or by deed an

intention to inflict harm.

       ¶ 40.   By contrast, a conviction for reckless endangerment requires proof that the

defendant placed another person in actual danger of death or serious bodily injury, and does not


                                                15
require proof of a specific intent to threaten others. The statute provides, “[a] person who

recklessly engages in conduct which places or may place another person in danger of death or

serious bodily injury” may be convicted of reckless endangerment. Id. § 1025. As the trial court

instructed the jury in this case, in order to convict defendant of reckless endangerment the jury

had to find that defendant recklessly placed another person in actual danger. See State v. Emilo,

146 Vt. 277, 278, 501 A.2d 1188, 1189 (1985) (“This Court has held ‘that the Legislature, when

it enacted 13 V.S.A. § 1025, intended to proscribe conduct which would place the victim in

actual danger of death or serious bodily injury, not mere apparent danger.’ ” (emphasis added)

(quoting State v. McLaren, 135 Vt. 291, 293, 376 A.2d 34, 36 (1977))).

       ¶ 41.   As charged, litigated, and instructed in this case, the aggravated assault charge

and the reckless endangerment charge each required an element of proof not required for the

other charge. Although the reckless endangerment charge and the aggravated assault charge both

relate to defendant’s pointing a gun at the complainants, the court instructed that an essential

element of the reckless endangerment charge in this case is that the firearm defendant pointed

was operable and capable of causing death or serious bodily injury. See State v. Messier, 2005

VT 98, ¶ 9, 178 Vt. 412, 885 A.2d 1193 (noting that for conviction under 13 V.S.A. § 1025, “the

State [must] prove that the firearm in question was loaded and operational”); State v. Longley,

2007 VT 101, ¶ 11, 182 Vt. 452, 939 A.2d 1028 (comparing aggravated assault statute to

reckless endangerment statute, and concluding whether firearm is actually operable irrelevant to

aggravated assault because aggravated assault “does not require an imminent threat”). Likewise,

the court instructed the jury that the aggravated assault charge required proof that defendant

intended to threaten another. For that reason, we conclude under the Blockburger test that the

Legislature intended to allow multiple convictions and punishments for the same act pursuant to

these differently defined offenses.




                                               16
                            B. Aggravated Assault and Simple Assault

       ¶ 42.   The parties agree that, as charged in this case, the simple assault count and the

aggravated assault charge turn on the same elements, and that defendant cannot therefore be

convicted of both aggravated assault and simple assault. Their disagreement lies in the proper

remedy. Defendant argues that the appropriate remedy for this double jeopardy violation is to

dismiss the greater charge. The State contends that since the jury found defendant guilty of both

aggravated and simple assault, we should vacate the lesser simple assault conviction, and allow

the aggravated assault conviction to stand. We vacate the simple assault conviction and affirm

the aggravated assault conviction.

       ¶ 43.   The Double Jeopardy Clause is designed to protect against three harms: (1) a

second prosecution for the same offense after acquittal; (2) a second prosecution for the same

offense after conviction; and (3) multiple punishments for the same offense imposed in a single

proceeding. See Jones v. Thomas, 491 U.S. 376, 381 (1989). As the United States Supreme

Court has noted, the interest protected in this third category of double jeopardy violations is

“limited to ensuring that the total punishment [] not exceed that authorized by the legislature.”

United States v. Halper, 490 U.S. 435, 450 (1989) abrogated on different grounds by Hudson v.

United States, 522 U.S. 93 (1997). Accordingly, “the Double Jeopardy Clause does no more

than prevent the sentencing court from prescribing greater punishment than the legislature

intended.” Hunter, 459 U.S. at 366.

       ¶ 44.   Applying these principles to this case, given the State’s position, the proper

remedy is to vacate the simple assault conviction and affirm the aggravated assault conviction.3


       3
          The State is free to exercise its prosecutorial discretion to request that we vacate the
greater conviction. See, e.g., State v. Breed, 2015 VT 43, ¶ 43, 194 Vt. 574, 117 A.3d 829
(declining to address which of two convictions should be vacated where defendant and State both
requested that Court vacate sexual-assault conviction rather than conviction for sexual abuse of
vulnerable adult). In this case, the State has clearly requested that the greater conviction stand if
the multiple convictions violate double jeopardy.

                                                 17
The ensuing sentence on this greater charge cannot and will not exceed the total punishment for

this offense authorized by the Legislature. See Thomas, 491 U.S. at 387 (upholding longer

sentence with credit for time served as appropriate remedy to double jeopardy violation because

respondent “had an expectation in serving either 15 years (on the one sentence) or life (on the

other sentence)”). Defendant’s conviction for simple assault is vacated and his conviction for

aggravated assault is affirmed.4

        The trial court’s order denying defendant’s motion to suppress the results of his alcohol
breath test is reversed, his conviction for driving under the influence is vacated, and the case is
remanded for further proceedings in connection with that charge. The convictions for aggravated
assault and reckless endangerment are affirmed. The conviction for simple assault is vacated.


                                               FOR THE COURT:



                                               Associate Justice




       4
           In his reply brief, defendant argues that we should instruct the trial court to conduct a
new sentencing on the remaining convictions. We decline to do so. “Generally, when less than
all of the convictions in a case are reversed on appeal, a remand for resentencing on the affirmed
convictions is not required if separate sentences were imposed for each offense.” State v.
Simpson, 160 Vt. 220, 225, 627 A.2d 346, 350 (1993). Instead, if separate sentences were
imposed, “a remand for resentencing is appropriate only when the convictions or sentences for
the reversed convictions appear to have influenced the trial court’s sentencing regarding the
affirmed convictions.” Id. Nothing in the record leads us to conclude that the trial court’s
sentences on the charges we have affirmed (or that defendant has not appealed) were influenced
by either of the convictions we are reversing—for DUI and for simple assault by physical
menace. In fact, the trial court specifically emphasized that if defendant’s crime were related
only to alcohol abuse and addiction, the sentences would be different, but that the most troubling
aspect of these crimes was defendant’s “relentless pursuit and terrorizing of this couple, who
were unknown to [him], without any provocation.” Defendant has not shown sufficient
connection between the trial court’s sentences for the convictions we have affirmed and the two
convictions we have reversed to warrant departure from the ordinary rule that a remand for
resentencing on all charges is not required in circumstances like this.
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