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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-109

                                     SEPTEMBER TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Jeffrey M. Brandt                                     }    DOCKET NO. 4056-10-09 Cncr

                                                            Trial Judge: Michael S. Kupersmith

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

       Defendant appeals a jury conviction of second-degree aggravated domestic assault. On
appeal, defendant argues that the jury instructions were plain error because they trivialized the
beyond-a-reasonable-doubt standard. We affirm.

       Defendant was charged with aggravated domestic assault for punching his wife in the
face. The trial against defendant was held in three stages. The first stage focused on whether
defendant indeed assaulted his wife on the occasion alleged. The second and third stages were to
determine if the charge would be enhanced for past domestic assault convictions and if there
were sufficient felonies to support a habitual offender enhancement.

         At this first trial, the victim testified to the following facts. She and defendant married in
2009. On the day of the assault she and defendant were in the car and fighting. They drove to
Fletcher Allen Health Care and stopped near the emergency entrance. Defendant got out of the
car and talked on the phone. He then got back in the driver’s seat, gave the phone to the victim,
they argued, and defendant hit her in the face with his right fist. She reported that it was very
painful and she stumbled out of the car to find help. She testified that defendant was wearing a
ring that chipped off a piece of her tooth. She discovered the broken tooth in her mouth. The
State presented testimony from the man who assisted the victim after the assault. He testified
that he saw the victim in the parking lot covering her face and screaming for help. He stated that
the victim reported that her husband hit her in the face and she was holding a tooth that had
fallen out. That man called his own wife who worked in the adjacent medical building. She also
testified and reported that the victim was hyperventilating and crying. She repeated that the
victim reported being hit by her husband and forced out of the car.

       A police officer who responded to the scene also testified. She reported that when she
arrived the victim’s nose was swollen and there was a little blood. The officer remembered
seeing the broken tooth fragment. She took photographs of the victim and the chipped tooth.
The police officer also described that during her investigation defendant at first denied being in
Burlington, or being married to his wife. He later admitted that he was there, but said he merely
had an argument with his wife, who then got out of the car. Defendant presented testimony from
a witness who saw the victim the day after the incident and reported that the victim did not
appear to have any injuries or a chipped tooth. The parties stipulated that a different witness
would testify to the same.

        The court instructed the jury on the elements of the offense. The court explained that the
State had the burden of providing all the essential elements beyond a reasonable doubt. The
court reiterated, “It is the State that has brought the charge, and it is the State that must prove the
charge if it can. It must prove the charge beyond a reasonable doubt.” The court then stated

                Few things in life are absolutely certain. To say that you believe
               something beyond a reasonable doubt is to say that you are
               convinced of it with great certainty, but proof beyond a reasonable
               doubt does not require you to be absolutely or one hundred percent
               certain. A reasonable doubt may arise from the evidence or from
               the lack of evidence.

                 ....

                You must find the Defendant not guilty when you have a
               reasonable doubt. Even if you believe he is probably guilty. You
               may find him guilty only if you have no reasonable doubt. You
               need not be able to articulate or voice an explanation for your
               doubt, and the doubt which you have as an individual need not be
               the same doubt held by your fellow jurors.            Under no
               circumstances may a guilty verdict be based on upon conjecture or
               suspicion.

There were no objections following the charge.

         On appeal, defendant argues that the court committed plain error in instructing the jury
regarding the beyond-a-reasonable-doubt standard. Defendant argues that the court’s instruction
trivialized the standard by equating reasonable doubt with “great certainty,” and that this error
was amplified by the prosecutor’s statement during jury selection about reasonable doubt.

        The challenged remark made by the prosecutor happened during an interchange with a
prospective juror at voir dire. The prosecutor questioned whether the juror had driven to court
and whether there were traffic lights at any intersections. The prospective juror replied
affirmatively. The prosecutor then asked, “Now, when you continued through an intersection
where you had the green light, did you know to an absolute certainty that the cars coming the
other directions were going to stop?” There was a further exchange and the prosecutor stated:

                So the judge may tell you in his instructions that proof beyond a
               reasonable doubt is proof to a great certainty, and you’d agree with
               me that that’s the way you proceeded through the green lights, with
               great certainty? You’re willing to put you and your car out there,
               even though you weren’t absolutely certain that the other cars
               weren’t going to come through the intersection at the same time.

These statements were made without objection, and the voir dire continued.

        Because defendant did not object to the court’s instructions, we review for plain error
only. State v. Viens, 2009 VT 64, ¶ 11, 186 Vt. 138. When determining whether plain error
exists in the context of jury instructions, we review instructions in their entirety. Id. “Plain error
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exists only where a failure to recognize error would result in a miscarriage of justice, or where
there is glaring error so grave and serious that it strikes at the very heart of defendant’s
constitutional rights.” Id. (quotation omitted).

        We conclude that there was no error, let alone plain error, because when the instructions
are taken as a whole, they properly instructed the jury regarding reasonable doubt. See State v.
Percy, 158 Vt. 410, 419, 612 A.2d 1119, 1125 (1992) (affirming where jury instructions on
reasonable doubt as a whole “accurately reflect the law”). The court several times instructed the
jurors that the State had the burden of proving all of the essential elements of the offense beyond
a reasonable doubt. The reference to “great certainty” did not diminish this instruction or
introduce a lower standard of proof. The court explained that if there was any doubt, the jury
could not convict, and that the jurors were not required to be able to articulate their doubt. These
instructions sufficiently informed jurors of the correct burden of proof to apply.

        The prosecutor’s statements during voir dire about reasonable doubt did not undermine
the court’s instruction or prejudice the jury regarding the proper law to apply. Defendant claims
that the prosecutor incorrectly compared the degree of certainty involved in driving through a
green light to that necessary to find someone guilty beyond a reasonable doubt. In State v.
Francis, 151 Vt. 296, 303 (1989), this Court explained that “it trivializes the proof-beyond-a-
reasonable-doubt standard to compare it to decisions of personal importance in a juror’s life.”
Even if the prosecutor improperly stated the law by using a personal decision as an analogy for
reasonable doubt, it did not result in error. The statement about the degree of certainty was made
not by the court, but by the prosecutor. Further, the analogy was made during jury selection.
Finally, it was made without objection by defendant. See State v. Oakes, 129 Vt. 241, 253
(1971) (explaining that opposing counsel has duty to object to claimed prejudicial conduct
during jury selection so it may be corrected). Under these circumstances, we cannot conclude
that the analogy prejudiced the jury’s understanding of the correct law to apply. The court
instructed the jury to base its verdict on the law as explained by the court and that “it would be a
violation of your sworn duty to base a verdict upon any view of the law other than what I give
you in these instructions.” As set forth above, the court properly instructed the jury regarding
reasonable doubt, and we presume that the jury followed the court’s instructions. See State v.
Rideout, 2007 VT 59A, ¶ 17, 182 Vt. 113.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice




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