State v. Kerri Nicholas

2016 VT 92, 151 A.3d 799, 203 Vt. 1, 2016 Vt. LEXIS 90
CourtSupreme Court of Vermont
DecidedAugust 19, 2016
Docket2015-010
StatusPublished
Cited by11 cases

This text of 2016 VT 92 (State v. Kerri Nicholas) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kerri Nicholas, 2016 VT 92, 151 A.3d 799, 203 Vt. 1, 2016 Vt. LEXIS 90 (Vt. 2016).

Opinions

Dooley, J.

¶ 1. Defendant was convicted of one count of domestic assault, in violation of 13 V.S.A. § 1042, and one count of cruelty to a child, in violation of 13 V.S.A. § 1304. On appeal, he argues that the child-cruelty conviction should be reversed because the trial court’s jury instructions allowed for a nonunanimous verdict, and that the State’s conduct during the trial created a risk of undue prejudice with respect to both counts. We affirm.

¶ 2. The evidence presented at trial involved multiple injuries to E.P, the victim, over a few weeks between early September and mid-October of 2012. E.P.’s nursery school teacher testified that E.P. arrived at school on September 7 of that year with two black eyes, after having missed the first day of school. The teacher asked the child’s mother what had happened, and the mother reported that the child had fallen on a metal bedframe.

¶ 3. The next incident occurred on September 18, 2012. The child’s teacher testified that E.P. had been absent the previous day, and when the child returned to school on the eighteenth she had a bruise on her face. Neither the mother nor defendant, who had a romantic relationship with the mother and had moved in with her in April 2012, called the school or provided a note explaining the bruise.

¶ 4. The teacher next observed an injury to the child a few weeks later on October 10, 2012. E.P. was again absent from [3]*3school, and when she arrived the following day, she had “a huge black eye.” The child’s left eye was “very swollen” and it appeared to the teacher that the injury “had happened recently.” That morning, the teacher made a report to the Department for Children and Families (DCF).

¶ 5. E.P.’s mother testified that on the morning she saw E.P.’s black-and-blue left eye, defendant explained that the injury had occurred the night before when he was heading to the bathroom at the same time as the child. According to the mother’s testimony, defendant told her that he and E.P. had bumped into each other, and the child hit the doorknob. In his interview with police, however, parts of which were admitted at trial, defendant stated that he had been in bed when E.P. hit her face on the bathroom doorknob.

¶ 6. On October 15, 2012, the DCF worker assigned to the case went to the mother’s home with Detective Jonathan Griffus. When they arrived at the home, E.P.’s mother, E.P, and defendant were all present. Detective Griffus took a photograph of E.P.’s left eye showing a dark bruise.

¶ 7. The next day, a pediatric nurse practitioner at Dartmouth-Hitchcock’s Child Advocacy and Protection Program conducted a head-to-toe examination of E.P. During that examination, she observed the following: (1) bruising on E.P.’s upper and lower eyelid, (2) a small bruise on her forearm; (3) two clusters of petechial bruising (tiny burst blood vessels) on one side of her neck,1 (4) bruising on the left side of E.P.’s ribs, and (5) a bruise near E.P.’s bellybutton.

¶ 8. Detective Griffus testified about his investigation, including his interview of defendant. As noted, the jury watched several segments of that interview in which defendant made statements that were: (1) in conflict with other evidence, such as his statement that he and his mother had taken the child to the doctor after one of the injuries, and (2) inconsistent with other statements he and E.P.’s mother made about the circumstances surrounding the left-eye injury to the child.

[4]*4¶ 9. Based on this and other evidence, the State brought four charges against defendant.2 Count I charged defendant with domestic assault, and was predicated on the two black eyes sustained by E.P. Count II was a second charge of domestic assault, this time predicated on the single black eye sustained by E.P. Finally, Count III was a charge of cruelty to a child between August 1, 2012 and October 16, 2012. The trial court granted defendant a directed verdict on a fourth charge, a charge of domestic assault tied to bruises on E.P.’s face and abdomen.3

¶ 10. Prior to excusing the jury for their deliberations, the trial court instructed the jury on the law governing the case. In particular, as to Count III, the trial court gave the following instruction:

[I]n Count III, [defendant] is charged with the offense of cruelty to a child. The following are the elements of this offense which must be proven by the State beyond a reasonable doubt: that between August 1 and October 16 of 2012, the defendant: (1) was over the age of sixteen years; (2) had the care of a child under ten years of age alleged to be E.P, date of birth May 31, 2008; (3) caused such child to be ill-treated in a manner to cause such child unnecessary suffering; and (4) defendant did so willfully.
The third element is that [defendant] caused [E.P] to be ill-treated in a manner to cause [her] unnecessary suffering. For this third element the terms are self-explanatory, except for the phrase “unnecessary suffering.” That phrase means physical pain or injury caused to the child that was not inflicted by reasonable corporal punishment.
And the fourth element is that the defendant did so willfully. For this fourth element, the State must prove [5]*5that defendant caused E.P. to be ill-treated in a manner to cause her unnecessary suffering willfully, that is consciously and intentionally, as opposed to accidentally or by mistake.
Your verdicts must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each jur[or] agree thereto. Your verdicts must be unanimous.

¶ 11. The jury returned a verdict of not guilty on Count I, arising from the two-black-eyes incident, and guilty verdicts on Counts II and III.

¶ 12. On appeal, defendant argues that: (1) the jury instruction regarding the child-cruelty count was plain error because the instruction did not make clear that the jury had to be unanimous as to which injury defendant caused to E.P.; and (2) multiple incidents throughout the trial collectively created an undue risk of prejudice warranting a reversal.

I. Jury Instructions and Risk of Non-Unanimity

¶ 13. Because defendant did not object to the jury instruction he now challenges on appeal, we review for plain error. When reviewing alleged plain error in a jury instruction, we determine whether there was obvious error affecting the defendant’s substantial rights, thereby resulting in prejudice to the defendant and seriously affecting the fairness or integrity of the judicial proceedings. See State v. Buckley, 2016 VT 59, ¶ 15, 202 Vt. 371, 149 A.3d 928. “[W]e examine the instructions in light of the record evidence as a whole and determine if any error would result in a miscarriage of justice.” State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.

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Cite This Page — Counsel Stack

Bluebook (online)
2016 VT 92, 151 A.3d 799, 203 Vt. 1, 2016 Vt. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kerri-nicholas-vt-2016.