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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-461

                                     NOVEMBER TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Rutland Unit,
                                                       }    Criminal Division
                                                       }
 Edward L. Everett                                     }    DOCKET NO. 654-4-09 Rdcr

                                                            Trial Judge: Thomas A. Zonay

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

        Defendant appeals his convictions for assault and robbery with a dangerous weapon and
contributing to the delinquency of a minor. On appeal, he argues that the evidence was
insufficient to sustain a conviction for contributing to the delinquency of a minor and that the
court committed plain error in instructing the jury on assault and robbery. We affirm.

       The charges stemmed from the robbery of a gas station convenience store. The following
facts were presented at trial. At the time of the robbery, defendant lived with his wife and his
stepdaughter. Defendant had previously worked at the Mobil Station that was the target of the
robbery. The store clerk testified that at around 11 p.m. he was exiting the store bathroom, when
a husky individual wearing a ski mask and a yellow and black coat entered. The individual
displayed a gun and asked for money and a box of cigarettes, which the clerk placed in a paper
bag. The individual then walked out the door and across the street. The clerk called the city
police and his manager. A police officer responding to the call passed a vehicle going in the
opposite direction from the gas station and recorded the license plate.

       The license plate was registered to a neighbor of defendant. The neighbor testified that
defendant and his wife often borrow the neighbor’s vehicle and had done so on the night of the
robbery. That evening, when defendant’s wife took the car, the neighbor saw defendant and his
stepdaughter waiting outside. Defendant was wearing a yellow and black coat. The neighbor
confirmed that the man in the surveillance video was wearing a coat like defendant’s.

        The stepdaughter also testified. She heard her mother and stepfather talking about
robbing the Mobil station, discussing their need for money and the fact that her stepfather had
worked there and knew when there would be cash on hand. In the evening, the three went
shopping, and defendant asked his stepdaughter to buy him some gloves and a ski mask—items
that he later wore during the robbery. The stepdaughter testified that they later borrowed the
neighbor’s car. Defendant asked her to drive, but she declined and rode in the backseat to the
store. She waited in the car with her mother until defendant returned with the money.
       Defendant’s wife also testified. She stated that she and defendant decided to rob the
Mobil because they needed money and defendant knew the routine there. They borrowed the
neighbor’s car, and she and her daughter waited while defendant went inside. Upon returning
home, they put all of defendant’s clothes in a garbage bag. Eventually, she brought this bag to
her mother’s house. Her mother testified that there was a handgun, a yellow and back coat, a
pair of gloves, and a ski mask in the bag. She threw the gun in a creek and donated the
remaining items to charity.

        At the close of the State’s case, defendant moved for judgment of acquittal on both
counts. As to the delinquency count, defendant argued that the State’s evidence failed to
establish that the minor committed a delinquent act. The motion was denied. Defendant did not
renew his motion at the close of the evidence or post-judgment. Defendant testified and denied
committing the robbery. He testified that his wife and stepdaughter wore the yellow and black
coat at times. He claimed he was at home and then at a friend’s house on the evening of the
robbery.

       The court instructed the jury, and defendant did not object to the instructions. The jury
returned guilty verdicts on both counts. Defendant now appeals.

        First, we consider defendant’s claim that he was entitled to acquittal on the contributing-
to-the-delinquency-of-a-minor charge because this count requires that the minor commit a
delinquent act and the evidence did not support this. The standard for judgment of acquittal
under Vermont Rule of Criminal Procedure 29 is “whether the evidence, when viewed in the
light most favorable to the State and excluding any modifying evidence, fairly and reasonably
tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable
doubt.” State v. Prior, 174 Vt. 49, 53 (2002) (quoting State v. Couture, 169 Vt. 222, 226 (1999)).
Although defendant moved for acquittal at the close of the State’s case, he failed to preserve this
argument for appeal because he did not renew his motion at the close of the evidence or in a
post-verdict filing. See State v. Crannell, 170 Vt. 387, 407-08 (2000), overruled on other
grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475. Therefore, we consider only whether the
court was required to grant acquittal by its own motion, which is only the case if “the evidence is
so thin that a conviction would be unconscionable.” State v. LaFlam, 2008 VT 108, ¶ 4, 184 Vt.
629 (mem.).

         The statute at issue prohibits a person from “caus[ing], encourag[ing], or contribut[ing] to
the delinquency of a minor.” 13 V.S.A. § 1301. Defendant argues that it was necessary for the
State to demonstrate that the juvenile actually committed a delinquent act in order to prosecute
him under the statute. In support, defendant cites Commonwealth v. Santos, 715 N.E.2d 455,
457 (Mass. App. Ct. 1999). In Santos, the defendant was charged with contributing to the
delinquency of a minor for assisting a child in running away from home, and the court entered a
judgment of not guilty because running away was not a delinquent act. The court explained that
the crime of contributing to the delinquency of a minor required an “act by a child sufficient to
support an adjudication of delinquency.” Id. at 457. Santos is distinguishable from this case
because here the State did identify a delinquent act—aiding in the commission of a robbery—
that it alleged defendant had caused or encouraged his stepdaughter to perform.

        Furthermore, the majority view is that it is not necessary for the state prove that the minor
actually committed the delinquent act because these statutes are intended to prohibit acts tending


                                                 2
to corrupt children and not merely to punish successful corruption. See, e.g., Senf v. State, 622
So. 2d 435, 440 (Ala. Crim. Ct. App. 1993) (noting that Alabama “subscribes to the majority
view that a defendant may be convicted of contributing to the delinquency of a child regardless
of whether the child actually commits a delinquent act” because the statute is “intended to
protect children from persons who would seek to aid, encourage, cause, or induce them to
become delinquent, as well as to punish the persons who succeed in those aims.”); State v.
Williams, 386 P.2d 461, 462 (Or. 1963) (en banc) (explaining that state need not show minor
became delinquent as a result of defendant’s conduct, but that defendant’s conduct “manifestly
tended to cause the child to become delinquent”). See generally J. Bock, Annotation, Criminal
Liability for Contributing to Delinquency of Minor as Affected by the Fact that Minor has not
Become a Delinquent, 18 A.L.R. 3d 824, § 2 (1968) (noting the majority view). Looking at the
plain language of the statute, which punishes one who “causes, encourages, or contributes to the
delinquency of a minor,” 13 V.S.A. § 1301, we agree with the majority view that the juvenile
need not commit a delinquent act for the defendant to be convicted. See State v. O’Dell, 2007
VT 34, ¶ 7, 181 Vt. 475 (construing statutory language requires looking first at plain, ordinary
meaning). The focus of the statute is on the defendant’s actions, and he may be punished for
encouraging a delinquent act, even if one does not result.

        Here, defendant’s stepdaughter testified that within her hearing defendant planned the
robbery, explaining the robbery’s motive and the likelihood of money on hand at a particular
time. She also testified that defendant asked her to buy gloves and a ski mask for him and
requested that she drive him to the site of the robbery. In addition, she accompanied defendant
and her mother to the scene of the robbery. This evidence was sufficient for a reasonable trier of
fact to conclude that defendant encouraged her to aid in the robbery and therefore that he
contributed to the delinquency of a minor. Thus, the court was not required to grant acquittal on
its own motion.

        Defendant next argues that the court’s instruction on assault and robbery with a deadly
weapon was confusing and misleading. We review jury instructions as a whole and will reverse
“only when the entire charge undermines confidence in the verdict.” State v. Carpenter, 170 Vt.
371, 374-75 (2000). Because defendant failed to object to the jury instruction, his argument is
reviewed for plain error. See V.R.Cr.P. 30 (explaining that party must object before the jury
retires to preserve assignment of error); State v. Erwin, 2011 VT 41, ¶ 19. “Error will be
assigned only when the entire charge undermines our confidence in the verdict, and only in
extraordinary cases will we find plain error.” State v. Brooks, 163 Vt. 245, 250 (1995).

        Defendant argues that the instructions failed to define adequately the assault element of
the charge. Defendant was charged with assault and robbery under 13 V.S.A. § 608, which
incorporates the elements of the assault statutes. State v. Francis, 151 Vt. 296, 306 (1989); see
13 V.S.A. § 1023(a)(3) (defining assault to include “attempt[ing] by physical menace to put
another in fear of imminent serious bodily injury”). The court instructed the jury on the elements
of the charge, including defining the essential element that defendant “purposely placed [the
clerk] in fear of imminent serious bodily injury by displaying a gun.” However, when the court
was defining the required mental state, it instructed the jury that defendant “acted purposely if it
was his conscious objective to place [the clerk] in fear of bodily injury.” Defendant claims that
the omission of the requirements that the threatened injury be imminent and serious was plain
error because it allowed the jury to convict defendant without finding a requisite element.



                                                 3
        We conclude that when viewed as a whole the instructions adequately informed the jury
of the elements of the offense. At three points, the court instructed the jury that it must find that
defendant had placed the clerk in fear of imminent serious bodily injury. That the court also
twice referred simply to bodily injury is insufficient to undermine our confidence in the verdict.
See State v. Forant, 168 Vt. 217, 220 (1998) (concluding that one reference to preponderance-of-
the-evidence standard was not plain error where court three times references State’s burden of
proving beyond a reasonable doubt).

       Affirmed.

                                              BY THE COURT:


                                              _______________________________________
                                              Paul L. Reiber, Chief Justice

                                              _______________________________________
                                              John A. Dooley, Associate Justice

                                              _______________________________________
                                              Brian L. Burgess, Associate Justice




                                                 4
