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 134

                                           No. 2015-366

State of Vermont                                                 Supreme Court

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

Tristan Cameron                                                  September Term, 2016


Alison S. Arms, J.

James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for
 Defendant-Appellant.


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


        ¶ 1.   DOOLEY, J. Defendant appeals his conviction under 23 V.S.A. § 1091(b) for

grossly negligent operation of a motor vehicle resulting in the death of a passenger. He argues on

appeal that there was not enough evidence to convict him, that testimony regarding his marijuana

use should have been excluded, that prejudicial juror discussions occurred, and that the trial court’s

instruction to the jury lowered the standard of proof required for conviction. Because we find that

the State presented enough evidence to create a question for the jury, we affirm on the first issue.

But because, absent expert testimony, the jury was left to speculate that the State’s evidence

provided the necessary link between defendant’s marijuana use and the grossly negligent operation

charge, we reverse and remand for a new trial on the second issue.
       ¶ 2.    At around two in the afternoon on July 18, 2013, the then seventeen-year-old

defendant and a passenger were driving defendant’s new car north along Duffy Hill Road. The

freshly-graveled dirt road sloped downhill, curved, went back uphill, and then turned to the right

around a blind corner at the intersection with Burns Hill Road. The road was bordered by

vegetation and rocks, and a ditch stretched along the northbound lane. As defendant drove north,

three three-axle farm trucks were travelling south, driving at approximately twenty-five miles per

hour. Defendant and the driver of the first truck saw each other as they came around the blind

corner from opposite directions. The driver of the first farm truck steered to the right and stopped

without incident just off the southbound side of the road. Defendant steered onto the northbound

edge of the road, tried to veer away, overcorrected, and lost control of his car. The tail end of

defendant’s car slid to the left and then back toward the right, turning the car so that the passenger

side faced the oncoming trucks. The front passenger door of defendant’s car hit the second farm

truck on the front driver’s side corner as the truck’s driver tried to stop. Defendant’s passenger

was injured in the crash and died the next day as a result of his injuries. Defendant sustained

several lacerations, including a deep cut on his head, but was otherwise unharmed.

       ¶ 3.    On December 21, 2013, defendant was charged with grossly negligent operation of

a motor vehicle, death resulting, under 23 V.S.A. § 1091(b). A jury convicted defendant after a

three-day trial. This appeal followed, raising the issues we noted above. We start with the claim

of evidence insufficiency because, if we agree with defendant’s position, the result will be to

dismiss the case.

       ¶ 4.    Defendant argues that the State did not present sufficient evidence to prove him

guilty of grossly negligent operation. He moved for a judgment of acquittal at the end of the State’s

case and renewed it at the close of evidence; he asks us to reverse the trial court’s denial of that

motion. We instead affirm and hold that the State presented sufficient evidence to create a

legitimate question for jury deliberation.

                                                  2
       ¶ 5.    We apply the same standard as the trial court when reviewing a motion for a

judgment of acquittal: “[W]e view the evidence in the light most favorable to the State, excluding

any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince

a trier of fact that the defendant is guilty beyond a reasonable doubt.” State v. O’Dell, 2007 VT

34, ¶ 4, 181 Vt. 475, 924 A.2d 87. This is a highly deferential standard, which recognizes that

neither trial nor appellate courts can place themselves in the jury’s position. State v. Neisner, 2010

VT 112, ¶ 18, 189 Vt. 160, 16 A.3d 597. A jury is in the best position to weigh facts and deliver

a verdict, particularly in close fact-dependent cases. State v. Carlin, 2010 VT 79, ¶ 10, 188 Vt.

602, 9 A.3d 312 (mem.). Thus, courts should grant a judgment of acquittal only when there is no

evidence to support a guilty verdict. State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999).

       ¶ 6.    23 V.S.A. § 1091(b)(2) defines gross negligence as “a gross deviation from the care

that a reasonable person would have exercised in that situation.” Negligence and gross negligence

are distinguished only by degree: negligence is a failure to “exercise ordinary care,” gross

negligence is “a failure to exercise even a slight degree of care.” Id. § 1091(a)(2); Neisner, 2010

VT 112, ¶ 23. Determining whether gross negligence has occurred is a fact-dependent inquiry,

and though prior cases may be instructive, each new case turns on its own facts. Langdon-Davies

v. Stalbird, 122 Vt. 56, 57, 163 A.2d 873, 874-75 (1960).

       ¶ 7.    Our cases make clear that a conviction for grossly negligent operation cannot rest

solely on “a mere error in judgment, loss of presence of mind, or momentary inattention.” State

v. Free, 170 Vt. 605, 607, 749 A.2d 622, 625 (2000) (mem.). But our cases make equally clear

that a jury may convict for grossly negligent operation when momentary inattention co-occurs with

an elevated risk of danger. For example, in State v. Carlin we held that a charge for grossly

negligent operation under § 1091(b) could proceed because, although the defendant only briefly

looked away from the road, she looked down at her GPS device while approaching a clearly visible

bicyclist who she then hit with her car when she drove onto the road’s shoulder. 2010 VT 79, ¶ 9.

                                                  3
And in State v. Koch we upheld a grossly negligent operation conviction where the defendant’s

car hit a pedestrian standing on the side of the road and the defendant had an unobstructed view of

the pedestrian for nearly 400 yards. 171 Vt. 515, 516-17, 760 A.2d 505, 506-07 (2000) (mem.).

The underlying principle is that “a driver’s duty to watch the road is related to the circumstances

that confront him and the place and manner of operation.” Free, 170 Vt. at 608, 749 A.2d at 626

(Dooley, J., dissenting).

       ¶ 8.    In this case, the State’s evidence was more than sufficient to create a question for

the jury. It is undisputed that the accident occurred on a blind curve. The driver of the second

truck testified to seeing defendant’s car slide around the blind corner, just miss hitting the first

truck, then veer to the right and go onto the grass off the edge of the road. He observed that

defendant’s car then swung around so that the passenger side faced oncoming traffic. He testified

that it looked like defendant’s car was traveling at a speed of “probably mid-nineties, maybe high

nineties,” and that defendant looked like he had fallen asleep or passed out because as he came

around the corner he was leaning forward with his head tilted to the side. The driver of the first

truck testified that defendant came around the corner “going fairly good speed,” turned his steering

wheel to avoid the first truck, and went sideways into the second truck when he tried to pull out of

his swerve. He also testified that defendant “jumped” out of his car and the “first words out of his

mouth [were] ‘I can’t believe I fell asleep.’ ” The state trooper investigating the crash testified

that defendant told him he was traveling between forty and fifty miles per hour as he came into the

blind corner. The trooper described defendant as “a little dazed and confused” and told the jury

that at the scene defendant did not recall what had happened but just remembered coming to after

his car hit the farm truck. Finally, the State’s expert witness described the trajectory of defendant’s

car, detailing how marks on the road indicated defendant lost control coming around the corner

and that the car’s tail end started to slide out into the middle of the road and then swung back



                                                  4
toward the right side of the road until it spun around and exposed the passenger side of the car to

oncoming traffic.

       ¶ 9.      Defendant argues that the State’s evidence was insufficient to show grossly

negligent operation. Specifically, he argues that “[t]here was no evidence from the State that

Tristan lost control because he was driving too fast and no evidence he was in the wrong lane,”

emphasizing that he was operating within the applicable speed limit. We conclude that a jury

could reasonably find that the blind corner at the intersection of Duffy Hill Road and Burns Road

presented an elevated risk of danger such that drivers should operate with extra caution. The State

presented evidence that defendant was driving in such a way that he could not control his car as

he came around the corner. In these circumstances, a jury could conclude that defendant was

grossly negligent. See Carlin, 2010 VT 79, ¶ 9 (“Although a driver’s momentary inattention, by

itself, is insufficient to warrant a finding of gross negligence, if that inattention occurs in a place

where there is great potential for immediate danger, it may be enough to allow a jury to find gross

negligence.”).

       ¶ 10.     With respect to defendant’s specific arguments, there was ample evidence that the

accident occurred while defendant was in the wrong lane. Whether defendant was operating within

the speed limit is not dispositive. Under 23 V.S.A. § 1081(a), defendant was required to operate

at a speed that was “reasonable and prudent under the circumstances, having regard for the actual

and potential hazards then existing” and in a manner to avoid collision with other vehicles on the

roadway. Even if within the speed limit, the jury could conclude that defendant’s speed did not

comply with § 1081(a) and caused the accident, which was the result of gross negligence.

Therefore, we affirm the trial court’s denial of defendant’s motion for a judgment of acquittal.1




       1
         Our conclusion that the evidence was sufficient does not rely on the marijuana usage
evidence and would be the same if the marijuana usage evidence had never been admitted.
                                              5
          ¶ 11.   Having determined that there was sufficient evidence for the case to go to the jury

on the charge against defendant, we turn to the evidentiary issues. The State offered evidence,

through the testimony of a state trooper who was the investigating police officer, that defendant

used marijuana during the morning before the accident, and the court admitted it over defendant’s

objection. Defendant argues that the admission decision was erroneous for multiple reasons.

          ¶ 12.   Defendant admitted to the marijuana usage in an interview with a state trooper.

Most of defendant’s reasons relate to that interview; defendant argues on appeal that the results of

the interview should have been suppressed for three reasons: (1) the trooper failed to give

defendant Miranda warnings before the interview; (2) because defendant was a minor at the time

of the interview, he could not be interviewed without the presence of a parent; and (3) defendant’s

confession to the crime of possession of marijuana was involuntary. We hold that the record is

inadequate to address these issues because defendant failed to preserve them and make an adequate

record.

          ¶ 13.   The facts and proceedings related to these claims are as follows. The trooper who

elicited the admission had spoken with defendant three times: at the scene of the accident; at the

police station on the evening after the accident; and again at the police station on July 24, 2013.

During their conversation in July, the trooper confronted defendant with a statement from a

separate individual that defendant, defendant’s passenger, and the individual giving the statement

had smoked marijuana together on the morning of the collision. Defendant told the trooper that

this statement was true.

          ¶ 14.   Defense counsel did not make a motion to suppress defendant’s statement with

respect to marijuana usage. Instead, defense counsel objected at trial to the admission of the

statement, telling the court, “I think it’s, well it’s my position it’s a routine evidentiary objection,”

adding “it’s not a fourth or fifth amendment issue.” The trial court treated this statement as an

objection under Vermont Rules of Evidence 401 and 403. After reminding defense counsel that a

                                                   6
motion to exclude should have been brought before trial, the court held an evidentiary hearing on

the admissibility of defendant’s statement.      Questioning by defense counsel and the State

established that defendant’s father was at the police station, but not in the same room, while

defendant spoke with the trooper on July 24, 2013. Defense counsel asked the trooper if he had

told defendant’s father he would prefer to talk with defendant alone. The trooper replied that he

had not expressed a preference either way.        The trooper also reported that defendant was

forthcoming during their conversation. Neither defense counsel nor the State asked whether the

trooper gave defendant Miranda warnings or whether defendant was told he was free to leave

without speaking with the trooper. To the extent the court addressed the issues defendant has

raised on appeal with respect to his constitutional rights, the court concluded that nothing

suggested defendant’s statement was involuntary and, because defendant was not under arrest at

the time of his statement, he was not in custody. The court ruled sua sponte that defendant’s

statement could not be excluded on constitutional grounds because defendant was not in custody,

was accompanied by an interested adult, and gave a voluntary statement.

       ¶ 15.   Defendant has claimed on appeal that the trooper failed to provide necessary

Miranda warnings and to provide the opportunity to consult with an adult, and that defendant’s

confession to using marijuana before the accident was involuntary. Based on these claims, he has

argued here that the evidence of the marijuana usage should have been suppressed as if trial counsel

moved to suppress and made these constitutional arguments. In fact, trial counsel explicitly stated

he was not making a constitutional claim to exclude the evidence. Apparently, trial counsel was

aware that Vermont Rule of Criminal Procedure 12(b)(3) requires that a motion to suppress be

made before trial and that failure to make a timely motion under Rule 12(b)(3) constitutes a waiver

of the suppression issues. V.R.Cr.P. 12(f). As a result, trial counsel never made a motion to

suppress and argued explicitly that he was not seeking to suppress the evidence. Although the trial

court took further testimony from the witness, related to whether defendant’s statement to the

                                                 7
witness on his marijuana use was admissible, the State reasonably understood that the testimony

applied to defendant’s motion to exclude the statement under the evidence rules. The additional

testimony was brief, and failed to provide an adequate record on the claims defendant now makes

on appeal.

        ¶ 16.   The appeal arguments are raised for the first time here and should have been raised

in a motion to suppress. Because “defendant filed no motion to suppress . . . , any such claim is

waived.” State v. Perley, 2015 VT 102, ¶ 13 n.*, 200 Vt. 84, 129 A.3d 93; see V.R.Cr.P. 12(b)(3),

(f) (providing that any motion to suppress evidence on ground that it was illegally obtained must

be raised prior to trial, and failure to do so constitutes waiver). Further, by not raising the issues

at all below, defendant has not preserved them for appellate review. See State v. Bogert, 2013 VT

13A, ¶ 29, 197 Vt. 610, 109 A.3d 883. As Bogert explains, the consequence of a failure to raise

an issue below is that there is an inadequate record from the trial court to address the issue on

appeal. That is exactly the situation here.2 The inadequacy of the record similarly precludes plain

error review.

        ¶ 17.   Defendant’s other ground for his position that the evidence of marijuana usage

should have been excluded is based on the Vermont Rules of Evidence. As noted above,

defendant’s initial objection took a general form. Rather than naming a specific rule prohibiting

admission, trial counsel said, “I think it’s, well it’s my position it’s a routine evidentiary objection,”




        2
          For example, defendant’s claims that defendant should have had Miranda warnings and
had the opportunity to consult his parents during interrogation both presume he was in custody at
that time. See In re E.W., 2015 VT 7, ¶ 10, 198 Vt. 311, 114 A.3d 112; State v. Piper, 143 Vt.
468, 473, 468 A.2d 554, 557 (1983). There are few facts in evidence showing the substance of the
interview or how it was conducted as bearing on whether defendant was in custody. We have held
that the most important fact bearing on custody is whether the interviewee was told that he or she
was free to terminate the interview and leave. State v. Sullivan, 2013 VT 71, ¶ 29, 194 Vt. 361,
80 A.3d 67. In this case, we have no evidence on which we can determine whether such a statement
was made because no one asked the trooper whether he made that statement. Similarly, we have
no evidence of whether the trooper gave Miranda warnings.
                                                 8
and at one point referred to the statement as prejudicial and at another stated that it was not relevant

because there was no other evidence that defendant was impaired.

       ¶ 18.   The trial court interpreted this objection as a general relevancy objection and

specifically addressed admission under Evidence Rules 401 and 403. The court found that the

statement was relevant because it “tend[ed] to make more probable the fact that the defendant had

ingested marijuana prior to the collision” and could aid the jury in assessing the weight of other

evidence in the case and defendant’s testimony should he choose to testify. The court also ruled

that there was a direct connection between evidence of defendant’s marijuana use and the cause of

the accident, and that evidence of defendant’s marijuana use was not so prejudicial as to

substantially outweigh its probative value. The trial court highlighted the State’s evidence that

could show that defendant was under the influence at the time of the accident, such as testimony

from two witnesses suggesting defendant may have fallen asleep while driving. Defendant has

clarified his argument to some degree on appeal; he now argues that the evidence of marijuana

usage had little probative value because the State presented no other evidence to suggest

impairment, and particularly no expert testimony, and was highly prejudicial because it was not

connected with any other proposition in the case.

       ¶ 19.   We review a trial court’s evidentiary rulings for abuse of discretion. State v. Groce,

2014 VT 122, ¶ 13, 198 Vt. 74, 111 A.3d 1273. We will reverse a court’s broad discretion to admit

or exclude evidence only where that discretion was withheld or exercised unreasonably. State v.

Porter, 2014 VT 89, ¶ 26, 197 Vt. 330, 103 A.3d 916.

       ¶ 20.   Rule 401 defines relevant evidence as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Rule 402 specifies that only relevant

evidence is admissible. And Rule 403 grants a trial court discretion to exclude otherwise

admissible relevant evidence if its “probative value is substantially outweighed by the danger of

                                                   9
unfair prejudice, confusion of the issues, or misleading the jury.” Two other evidentiary rules are

also implicated by defendant’s motion.         Rule 104 provides that “[p]reliminary questions

concerning . . . the admissibility of evidence shall be determined by the court” except that “[w]hen

the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit

it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment

of the condition.” V.R.E. 104(a), (b). In essence, defendant is arguing that the Rule 401 and 403

requirements are met only if the State establishes a relationship—that is, fulfills a condition of

fact—between the marijuana evidence usage testimony and whether defendant operated in a

grossly negligent manner under 23 V.S.A. § 1091(b).

       ¶ 21.   The second rule implicated is Rule 702, which authorizes expert testimony subject

to certain standards: “[i]f scientific, technical or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue.” While we are not dealing here

with a question of whether expert testimony is admissible, the authorization of Rule 702 suggests

the kind of foundation testimony that is required to meet the condition of admissibility found in

Rule 104(b). In instances when the jury needs scientific, technical, or specialized knowledge to

make the decision the law entrusts to it, we have often held that evidence that provides such

knowledge is required. Thus, in Burton v. Holden & Martin Lumber Co. we held that:

                 There are many cases where the facts proved are such that any
               layman of average intelligence would know, from his own
               knowledge and experience, that the injuries were the cause of death.
               In such a case the requirements of law are met without expert
               testimony. But where, as here, the physical processes terminating
               in death are obscure and abstruse, and concerning which a layman
               can have no well-founded knowledge and can do no more than
               indulge in mere speculation, there is no proper foundation for a
               finding by the trier without expert medical testimony.

112 Vt. 17, 19, 20 A.2d 99, 100 (1941) (citation omitted). Though Burton focused on medical

testimony, the principle it espouses is broadly applicable and relevant here.



                                                  10
       ¶ 22.   The interaction of these concepts is controlled in this case by State v. Rifkin, 140

Vt. 472, 438 A.2d 1122 (1981). In Rifkin, the defendant was charged with operating a motor

vehicle while under the influence of drugs after he drove off an icy road and into a snowbank. The

crime, as it was then defined in 23 V.S.A. § 1201(a)(3), required the State to prove that the drug

consumption rendered defendant “incapable of driving safely.” Id. at 475, 476, 438 A.2d at 1124.

At the scene of the accident, the defendant told a police officer that he had smoked marijuana thirty

minutes earlier. He was also taking a prescription medicine designed to control his alcohol

consumption, which could cause some of the behaviors defendant exhibited at the scene. After his

conviction, the defendant appealed, arguing that there was insufficient evidence to support his

conviction because the State did not present expert testimony to link his behavior at the scene to

marijuana use or to prove that the amount of marijuana he used would render him unable to drive

safely. Id. at 476, 438 A.2d at 1124. We agreed and explained that when a defendant is alleged

to have operated a motor vehicle under the influence of alcohol, the average juror, “on the basis of

his personal observations, is competent to give his opinion as to the sobriety of an individual

because it takes no special scientific knowledge or training to recognize intoxication.” Id. (citation

omitted). But the same is not true for other drugs, which can produce a variety of symptoms that

“cannot be sorted out without specialized training.” Id. We held that an expert witness was

required both to draw the line between a defendant’s behavior and drug use, and to establish that

a defendant was under the influence to such a degree that he was unable to drive safely. Id. at 476-

77, 438 A.2d at 1124-25; see also People v. Gosse, 457 N.E.2d 129, 132 (Ill. 1983) (holding

evidence of alcohol and drug use cannot be admitted to support charge of reckless conduct without

other evidence tying use to inference of intoxication).

       ¶ 23.   We recognize that Rifkin was a case of evidence sufficiency and this is a case of

evidence admissibility, but conclude that this is a distinction without a difference. In Rifkin, a

police officer testified that the symptoms the defendant displayed related to the marijuana usage,

                                                 11
but the officer testified as a lay witness and was not qualified as an expert witness. We held that

“the connection between the symptoms observed and the influence of a drug must then be made

by a qualified expert.” Id. at 477, 438 A.2d at 1125. We further held that the defendant’s

conviction had to be reversed because there was no other evidence that could meet the requirement.

In essence, Rifkin held that the extent to which the lay witness evidence was admissible depended

in turn on the introduction of expert testimony relating the use of marijuana to the defendant’s

ability to drive safely. In the absence of the expert testimony, the evidence was inadmissible

because the condition was not met. Rifkin was a case about both evidence admissibility and

evidence sufficiency.

        ¶ 24.   We also acknowledge that a later case, State v. Devine, 168 Vt. 566, 719 A.2d 861

(1998) (mem.), is factually similar to both Rifkin and this case but reaches a different result from

Rifkin. Devine does not cite Rifkin or address the inconsistency in result. In Devine, the defendant

was convicted of careless and negligent operation of a motor vehicle with death resulting under 23

V.S.A. § 1091(d)3 after he drove his car across the center lane of state Route 7 and crashed into a

car in the opposite lane, killing the driver of the other car. The evidence at trial was that “[a]lthough

the road was dry and it was a clear day with good visibility, [the] defendant drove in excess of the

speed limit across the double yellow line and two lanes of oncoming traffic, and straight into the

victim’s car—all without attempting to slow down or to turn out of the way.” Id. at 567, 719 A.2d

at 863. The evidence showed that after the accident the defendant was unaware that he had struck

another vehicle. It also showed that he had little opportunity for sleep for several days prior to the

accident, consumed alcohol and marijuana during this period and had trouble staying awake. Id.




        3
          As the Court noted in Devine, the statute was rewritten in 1996 to repeal this subsection
and the elements of the crime contained in it. Devine, 168 Vt. at 566, n.*, 719 A.2d at 863, n.*.
The statute required proof of criminal negligence. See State v. Beayon, 158 Vt. 133, 136, 605
A.2d 527, 528 (1992).
                                                12
       ¶ 25.   At trial, the court admitted into evidence two bags of marijuana concealed in

defendant’s underwear and a marijuana pipe found in his car over the defendant’s objection that

this evidence was more prejudicial than probative under Rule 403. He did not raise the argument,

either at trial or in the subsequent appeal, that the marijuana usage evidence could be admitted

only if the State laid a foundation for such evidence through expert testimony that demonstrated

the relationship between marijuana usage and careless and negligent operation of a motor vehicle.

We upheld the admission even though there was no evidence the defendant consumed marijuana

right before the accident because he admitted to consuming marijuana in the days before the

accident, he attempted to hide the marijuana pipe, and he refused to submit to a blood test.

       ¶ 26.   In view of the limited nature of the objection and issue in Devine, we cannot view

its holding as inconsistent with that in Rifkin even though its result appears inconsistent.4 To the

extent they are inconsistent, we overrule Devine and reaffirm the holding in Rifkin. Cf. State v.

Bolaski, 2014 VT 36, ¶ 46, 196 Vt. 277, 95 A.3d 460 (overruling memorandum decision under

similar circumstances).

       ¶ 27.   Defendant in this case challenged the admission of the marijuana evidence arguing

both that it was irrelevant and that its probative value was outweighed by its prejudicial effect.

See V.R.E. 403. This was a proper way to challenge the lack of a foundation for the evidence.

See State v. Martin, 2007 VT 96, ¶¶ 27-30, 182 Vt. 377, 944 A.2d 867; State v. Griswold, 172 Vt.

443, 448, 782 A.2d 1144, 1148 (2001). Although the statement of grounds for the objection was

general, the court understood that it raised the probative value of the evidence in a case where there



       4
           We also conclude that the result in Devine would be reached, in any event, under the
doctrine of harmless error. Because of sleep deprivation, the defendant had difficulty staying
awake, and the circumstances of the accident indicated that he fell asleep at the time of the
accident. Driving under the influence of drugs or alcohol was not an element of the crime. The
evidence that the defendant should not have operated his vehicle in his condition was very strong
irrespective of the cause of that condition. While drug usage may have helped explain the source
of that condition, it was evidence of context.
                                                13
was no other evidence that defendant’s operation was impaired by the presence of drugs in his

system. The court held that the evidence had probative value because “it could aid in assessing

the weight and credibility of defendant’s testimony should defendant decide to testify,” “aid the

jury in considering the weight that they might afford other evidence in the case,” and there was

evidence “defendant may have fallen asleep or that he may have been in the wrong lane for some

other reason.” The court concluded that “[t]here is a direct connection between the evidence that

defendant used marijuana prior to the collision and the cause of the accident” and that “[t]he jury

will have the opportunity to weigh the evidence and determine whether it believes that the

defendant’s ingestion of marijuana caused his perceptions to be inaccurate or caused the collision

that resulted in [the passenger’s] death.”

       ¶ 28.   Under Rifkin, the evidence of marijuana usage had no probative value absent expert

testimony relating the marijuana usage to whether defendant was grossly negligent in his operation

of his vehicle at the time of the accident. There was no such testimony here, and the jury was left

to speculate on exactly the issues the court held gave probative value to the marijuana consumption

evidence. There is a significant likelihood that the jury was misled to the prejudice of defendant.

Although the trial judge had substantial discretion in making the Rule 403 determination, the

reason for allowing the introduction of the evidence fell outside that discretion and was error.

       ¶ 29.   Although the State has not argued that any error was harmless, defendant has

addressed the question, urging us to conclude that the error cannot be harmless. Error is harmless

where, excluding the evidence that was improperly admitted, there remains “overwhelming

evidence to support the conviction and the evidence in question did not in any way contribute to

the conviction.” Groce, 2014 VT 122, ¶ 19 (quotations omitted). We do not have to go into the

evidence in any detail to hold that the standard of harmless error was not met. While we have held

above that there was sufficient evidence for the case to go to the jury, the result of the trial turned

in significant part on the jury’s assessment of conflicting testimony of expert witnesses. Because

                                                  14
the jury had to speculate on the effect of the marijuana consumption on defendant’s ability to

operate safely, it may have found a close connection, given great weight to the evidence and

concluded this evidence tipped the scale in favor of the State. Because marijuana consumption

constitutes an independent crime, the jurors may have viewed defendant and his conduct in an

unfavorable light beyond their impression from the other evidence. See State v. Forbes, 161 Vt.

327, 330, 640 A.2d 13, 15 (1993). This is not a case where we can conclude that the improper

evidence could not have contributed to the verdict.

       ¶ 30.     Having concluded that that there must be a retrial because of the admission of

evidence of defendant’s consumption of some marijuana, without expert testimony connecting that

evidence to whether defendant drove in a grossly negligent manner causing the death of his

passenger, we need address the remaining claims summarily, if at all.

       ¶ 31.     Defendant next argues that the trial court should have granted his motion for a new

trial because of presubmission intra-jury conversations about defense counsel and the evidence.

We need not resolve this issue because it is not likely to reemerge in the retrial. We address it

briefly because of the circumstances that led to the conversations among jurors.

       ¶ 32.     In this case, the trial judge gave daily instructions to the jurors not to discuss the

case with others, but did not give a general pretrial instruction on this subject and did not

specifically address discussions about in-court activities and evidence among jurors. When it came

to light that such discussions were occurring, the trial judge interviewed each of the jurors and

found that many of the jurors did not understand that such discussions among jurors were

prohibited. The court then gave a specific instruction on the subject. The court then concluded

that because no juror had expressed an opinion on defendant’s guilt or innocence, a new trial was

not necessary.




                                                  15
       ¶ 33.   Although we have not addressed specifically the propriety of presubmission

discussion of evidence and other in-courtroom activity by jurors in criminal cases,5 other

jurisdictions are unanimous in prohibiting such discussion. See, e.g., People v. Flockhart, 2013

CO 42, ¶ 12, 304 P.3d 227; Ford v. State, 12-KA-01318-SCT (¶ 15), 147 So. 3d 325, 331 (Miss.

2014).6 In this case, the court apparently intended to instruct the jurors not to discuss the evidence

and in-court events with each other in a pretrial instruction but failed to do so.7 It is not surprising

that the jurors did not understand from the court’s instructions at the end of each trial day that they

were not supposed to have such discussions with other jurors during the following trial day and

engaged in such discussions. We caution trial judges who are presiding over jury trials to give an

explicit presubmission nondiscussion instruction, along with an instruction not to communicate

with others about the case.8




       5
          In State v. McCarthy, defendant claimed that jurors discussed the case during a view of
the scene of the alleged crime. 2012 VT 34, 191 Vt. 498, 48 A.3d 616. Although we found that
there was no evidence that the jurors talked with each other about the case, and affirmed on that
basis, we did observe that “courts should carefully structure jury views, instructing jurors
definitively and in advance that they should not talk to one another or engage in independent
exploration of the view . . . .” Id. ¶ 26. In view of the disposition of the case, the opinion contains
no analysis of whether jurors can engage in presubmission discussions of the evidence or of the
consequences if they do.
       6
          We have had numerous decisions on external influences on jurors in criminal cases,
generally holding that “the jury must be free of the taint of extraneous influences.” State v.
Johnson, 2013 VT 116, ¶ 15, 195 Vt. 498, 90 A.3d 874. Some courts have authorized juror
evidence discussions prior to the submission of the case to the jury in civil cases. See D. Anderson,
Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 Mil.
L. Rev. 92 (2002) (discussing authorization for predeliberation discussion in civil cases in Arizona,
Colorado, and District of Columbia).
       7
          The court gave a specific instruction on discussion between jurors on March 6, 2015,
indicating it was identical to the instruction given at the start of the case, but no such instruction
was given at the start of the case.
       8
             The instruction can be given in an orientation of potential jurors or in case-specific
preliminary instructions. To the extent that the trial judge is giving reminder instructions during
the trial, they should specifically address intra-jury communications.
                                                   16
       ¶ 34.   Defendant’s final argument is that the trial court committed structural error

requiring reversal when it defined “beyond a reasonable doubt” as convinced with “great certainty”

rather than “utmost certainty,” the standard which defendant reads In re Winship, 397 U.S. 358

(1970) to require. Much of the argument is unpreserved, and we rejected it at least in part in State

v. Levitt, 2016 VT 60, ¶ 2, __ Vt. __, 148 A.3d 204. We decline to reach it here.

       Reversed and remanded.


                                               FOR THE COURT:



                                               Associate Justice




                                                17
