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.
2023 VT 39
No. 22-AP-225
State of Vermont Supreme Court
On Appeal from v. Superior Court, Windham Unit, Criminal Division
Theodore Dmitri Colehamer April Term, 2023
John R. Treadwell, J.
Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. CARROLL, J. Defendant Theodore Colehamer appeals two convictions
following a jury trial—felony driving under the influence (DUI), fourth offense, and misdemeanor
eluding a police officer. He contends that the trial court abused its discretion in denying defense
counsel the opportunity to ask a question of potential jurors at voir dire, that it made multiple errors
on evidentiary rulings, and that it improperly selected a jury foreperson. He also argues that the
eluding conviction should be vacated because he did not violate the statute’s plain terms. We
conclude that the court did not abuse its discretion on any of the evidentiary or jury issues but
agree with defendant that he did not elude law enforcement as charged. Accordingly, we affirm
the DUI conviction and vacate the eluding conviction. I. Background
A. Facts
¶ 2. The following is drawn from witness testimony and exhibits introduced at trial. At
approximately 11:30 p.m. on April 19, 2019, Brattleboro Police Officer Bradley Penniman saw
defendant sitting on an electric scooter. The scooter was positioned on a sidewalk and was
stationary. The officer stopped his marked police cruiser a short distance away and approached
defendant on foot. Officer Penniman was in uniform and had activated his body camera.
Penniman told defendant he could not ride on the sidewalk and asked whether defendant had
consumed any alcohol that evening. Defendant said that he had not. Penniman then asked for
defendant’s driver’s license. Defendant initially responded that he did not have his license with
him, but then remembered that he did have it and gave it to Penniman. Penniman, noticing the
smell of alcohol and defendant’s “confusion” and “slurred speech,” asked defendant to “hang
tight” while he went back to activate the cruiser’s dash camera. As Penniman did so, defendant
drove away on the scooter. After he realized defendant had left, Officer Penniman got in the
cruiser, activated its emergency lights, but not the siren, and attempted to locate defendant in the
area, including at defendant’s nearby residence.
¶ 3. Shortly thereafter, Penniman spotted defendant, who was no longer on the scooter,
and arrested him after a brief foot chase. Upon returning to the stationhouse, Penniman read
defendant Miranda warnings and defendant indicated that he was not waiving them. Penniman
told defendant that he was not going to administer field-sobriety tests because defendant had not
waived Miranda rights. Defendant agreed to provide an evidentiary breath-alcohol sample.
Penniman used a DataMaster DMT breath-alcohol testing device to determine defendant’s BAC,
which was .103 at 1:11 a.m. At 1:16 a.m., a second test obtained a result of .106. Defendant
consented to a search of his backpack in which Penniman found 1.21 ounces of marijuana, plastic
baggies, and a scale.
2 B. Pretrial
¶ 4. As amended, defendant was charged with driving under the influence of
intoxicating liquor, fourth offense, in violation of 23 V.S.A. § 1201(a)(2); operating a motor
vehicle with an alcohol concentration of 0.08 or more, fourth offense, in violation of 23 V.S.A.
§ 1201(a)(1); and one count of eluding a police officer in violation of 23 V.S.A. § 1133(b)(1).
¶ 5. During voir dire, defense counsel wanted to ask the following question of potential
jurors: “what is worse: an innocent person being convicted or a guilty person going free?” The
State objected and argued that the question was designed to inflame the jury. The trial court
refused to allow the question, stating that it “didn’t find it an appropriate question to ask.” The
court ruled that the question could “lead the jury to speculate about” unrelated matters.
¶ 6. Immediately preceding trial the next day, the court held a hearing on defendant’s
motion for permission to ask Officer Penniman questions relating to a “Brady letter” prepared by
the Windham County State’s Attorney in June 2021.1 The letter disclosed the following:
Brattleboro Police Officer Bradley Penniman prepared an affidavit of probable cause in [a] case . . . which contains a material misstatement. The affidavit states that a notice of hearing containing defendant’s name was in a bag containing drugs when that notice was found in a different bag. That location was relayed to him from another officer, but he does not remember which officer and no other officer recalls making the statement.
Defendant contended that, based upon the contents of the letter, he should be allowed to put the
question of Officer Penniman’s credibility to the jury under Vermont Rule of Evidence 608(b).
The State countered that there was no evidence indicating Officer Penniman’s misstatement was
untruthful; thus, it was not an appropriate question for the jury. The State also argued that the
1 Brady refers to Brady v. Maryland, 373 U.S. 83, 87 (1963), a case in which the U.S. Supreme Court held in relevant part that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 3 letter was not relevant given that the State’s evidence in the case was independently supported by
body-camera footage, which meant that the jury was not relying on the officer’s testimony alone.
¶ 7. The court denied the motion. It ruled that while Penniman’s affidavit contained a
factual inaccuracy, it was inaccurate because the information conveyed to Penniman was
inaccurate, not because Penniman was untruthful. Accordingly, the misstatement was not
probative of his truthfulness and defendant could not pursue a line of questioning regarding the
Brady letter.
C. Trial
¶ 8. The State called Officer Penniman as a witness at trial. It asked Penniman to recite
defendant’s date and place of birth. Penniman indicated that he needed to be refreshed to correctly
answer the question. The State provided him with a copy of defendant’s Vermont Arrest Custody
Report. The State repeated the question after Penniman had reviewed the document, and Penniman
answered. The State then asked how he learned of defendant’s place of birth, to which Penniman
responded, “by looking at his criminal history record.” At that point, defendant moved for a
mistrial because, he argued, the State had elicited testimony concerning defendant’s “criminal
history.” He contended this was irrelevant and prejudicial. The State responded that it did not
intend to elicit that answer and was not going to draw attention to it. It suggested that either the
court could issue a curative instruction to the jury to disregard Officer Penniman’s testimony or it
could simply continue on direct examination as if nothing had happened. The court asked defense
counsel for his request, and counsel responded, “our request is for mistrial . . . we don’t want a
curative instruction.” The court ruled that the reference to defendant’s criminal and arrest history
was brief, did not allude to what defendant’s criminal history was, if any, and was not overly
prejudicial. Accordingly, it denied the motion for mistrial.
¶ 9. On cross-examination of Officer Penniman, defendant pursued a line of questioning
focused on the amount of marijuana he found in defendant’s backpack. The State objected when
4 defendant sought to raise the issue of whether the amount of marijuana Penniman found in the
backpack constituted a criminal amount. Defendant’s theory of the case was that he was not
intoxicated at the time of the incident, and his behavior stemmed from his nervousness at knowing
he had a criminal amount of marijuana in his backpack. The court denied defendant’s request to
introduce the issue of whether the amount was criminal but permitted defendant to elicit testimony
from Penniman that he found 1.21 ounces of marijuana, baggies, and a scale in defendant’s
backpack.
¶ 10. Defendant next sought to question Penniman about why he refused to administer
field-sobriety tests; specifically, that Penniman apparently misunderstood that a refusal to waive
Miranda rights does not foreclose the administration of field-sobriety tests. The State objected on
the grounds that why Penniman refused—his mistaken understanding of the law—was not relevant
to the issues before the jury. According to the State, whether Penniman provided defendant an
opportunity to perform field-sobriety tests was the only relevant issue. Defense counsel responded
that Penniman’s mistake went to impeaching Penniman’s investigation and deprived defendant of
an opportunity to prove he was not intoxicated. The court refused to allow defense counsel to raise
the issue but did permit him to ask Penniman whether he afforded defendant the opportunity to
perform field-sobriety tests, to which Penniman said, “no.”
¶ 11. Following cross-examination, the court asked whether any members of the jury had
any questions for Penniman. One juror asked the following: “Why are you obligated to offer a
field-sobriety test by law.” At a bench conference, defense counsel indicated that he did not want
the court to ask the question, and the court responded that “there is no evidence regarding field
sobriety tests” and the jury “cannot rely [on the question presented] to determine either sobriety or
a lack of sobriety. I’m not going to answer the question.” Defense counsel said, “I agree” and
reiterated his objection that he should be allowed to raise the issue of Penniman’s mistaken view
of the law, which the court continued to overrule.
5 ¶ 12. The State’s next witness was a forensic chemist from the Vermont Forensic
Laboratory. During her testimony, the State sought to introduce a copy of defendant’s evidentiary
breath-test results called a DataMaster ticket. Defendant objected and, on voir-dire examination,
posed the following question to the chemist: “Would you agree that [defendant’s test results] are
likely not the numbers [defendant] had in his system at the time of operation?” The State objected,
arguing that the question involved relating back defendant’s BAC to the time of operation rather
than contesting the foundation facts. Defendant responded that his line of questioning was
intended to elicit testimony from the chemist regarding defendant’s impairment at the time of
operation in the absence of any evidence of defendant’s drinking pattern prior to his encounter
with Officer Penniman. The court asked defense counsel why, given that under 23 V.S.A.
§ 1204(a)(3) a test result of 0.10 or more within two hours of the offense is a permissive inference
that a person was under the influence of alcohol at the time of operation, the test results were not
admissible. Counsel responded that he considered the results “admissible to the influence charge,
but not necessarily to the legal[-]limit charge.” The court noted that “relation back is a different
issue.” Counsel accordingly withdrew his objection, and the court admitted the test results.
¶ 13. Defense counsel then asked whether the court would allow hypotheticals regarding
defendant’s level of intoxication at the time of the offense. The State requested one hypothetical—
that defendant did not consume alcohol in the thirty minutes prior to operation. It argued that this
hypothetical was supported by the record, including defendant’s untrue statement to Officer
Penniman that he had not consumed any alcohol. Defense counsel requested a hypothetical that
assumed defendant had consumed “two standard drinks” in the thirty minutes prior to the offense.
¶ 14. Following a recess, the court ruled that there was no evidence to support either
hypothetical. Defendant had represented to Officer Penniman that he did not consume any alcohol,
and therefore the probative value of posing a relation-back hypothetical to the jury was “effectively
nil” because “there was nothing to relate back” to. The court noted that it “would allow a single
6 hypothetical based upon the evidence, which would be what . . . defendant’s” BAC would “be
based upon zero units of alcohol consumed” in the twelve hours prior to the incident. Defense
counsel objected, apparently believing that the court’s ruling was tantamount to giving the State
“the extreme of the hypotheticals” because the jury could infer that having no drinks meant that
defendant was “completely done absorbing alcohol.” The court clarified that “there [was] no
drinking pattern . . . in the record from which a retrograde extrapolation can be conducted. Any
hypothetical, either consuming no alcohol in the thirty minutes beforehand or consuming
potentially two drinks in the thirty minutes beforehand, is not supported by the evidence.” Defense
counsel then asked whether the court would admit the chemist’s affidavit, which contained a
relation-back analysis similar to the hypothetical posed by the State. The court responded, “how
could it come in?” Counsel then acknowledged that he had “completely misunderstood” the
court’s ruling, but now that he understood that the court was not admitting any relation-back
hypotheticals, he would “not be putting any hypothetical or numbers up to the jury about
[defendant’s] alcohol concentration.”
¶ 15. At the close of the State’s evidence, the court granted defendant’s motion for a
judgment of acquittal on the “legal[-]limit count,” which requires a BAC of .08 or higher at the
time of operation. See 23 V.S.A. § 1201(a)(1). Because the court “precluded the parties from
asking questions based upon hypotheticals based upon the absence of evidence in the record,”
there was “no evidence from which the jury could reasonably conclude that” defendant’s BAC
was above the legal limit “at the time of operation.”
¶ 16. The court denied the motion as to the eluding-law-enforcement count. The statute’s
requirement that “[n]o operator of a motor vehicle shall fail to bring his . . . vehicle to a stop when
signaled to do so by an enforcement officer,” applied here because, the court ruled, Officer
Penniman’s direction to “hang tight” was a “clear direction” to defendant to “stay where he [wa]s.”
See 23 V.S.A. § 1133(b)(1). The court interpreted the statutory language “to be the equivalent
7 of . . . precluding an individual from starting their vehicle,” and concluded that the State had
offered substantial admissible evidence in support of the charge.
¶ 17. While discussing jury instructions, defendant objected to the court’s procedure for
choosing a jury foreperson. The court indicated that it chose a foreperson based on who appeared
to pay attention during trial, rather than by lot or by the jury’s own choosing. Defendant suggested
that the court’s procedure risked signaling to the jury and the foreperson that the foreperson’s
“opinion will be given more weight than the other jurors.” The court noted that the rules of
procedure granted it “the discretion to use whatever procedure” it considered “fair in selecting a
foreperson” and that it would not change its practice.
¶ 18. The jury returned guilty verdicts on the two remaining charges. Defendant was
sentenced to a term of twelve-to-eighteen months, all suspended, with nine days to serve, and a
twelve-month probation term. Following the court’s denial of his motion for a new trial and
renewed motion for judgment of acquittal on the eluding charge, defendant appealed.
D. Arguments on Appeal
¶ 19. Defendant advances numerous arguments relating to the court’s evidentiary rulings.
He contends that the court erroneously limited his cross-examination of the chemist, prevented
questions relating to the amount of marijuana he had in his backpack and why Penniman had
refused to perform field-sobriety exercises, and prohibited him from impeaching Penniman’s
credibility. He contends that the court erred by denying his motion for a mistrial following Officer
Penniman’s reference to his criminal history. He argues that the court abused its discretion when
it prohibited him from asking potential jurors his proposed question and by appointing a jury
foreperson based on who it considered to have paid attention during the trial. Finally, he argues
that the State failed to establish that he was guilty of eluding an enforcement officer.
¶ 20. We conclude that defendant’s arguments relating to the court’s evidentiary rulings
are without merit, and that he failed to preserve an objection with respect to his cross-examination
8 of the chemist. We further conclude that the court did not abuse its discretion at voir dire or in its
manner of selecting a jury foreperson. The court likewise did not err when denying defendant’s
motion for a mistrial. However, we agree that the State failed to establish that defendant violated
23 V.S.A. § 1133(b)(1). The statute requires an operator to “fail to bring his or her vehicle to a
stop when signaled to do so by an enforcement officer.” Id. Defendant did not fail to bring his
scooter to a stop after being signaled to do so. He was stationary when Officer Penniman
approached, and defendant’s leaving despite Penniman’s statement to “hang tight,” considering
the surrounding facts and circumstances, cannot sustain a conviction on the eluding charge.
II. Evidentiary Arguments
¶ 21. Defendant raises several claims of error regarding the trial court’s evidentiary
rulings. We address each in turn.
¶ 22. “We apply a deferential standard of review to the trial court’s evidentiary rulings
and will reverse its decision only when there has been an abuse of discretion that resulted in
prejudice.” State v. Russell, 2011 VT 36, ¶ 6, 189 Vt. 632, 22 A.3d 455 (mem.) (quotation
omitted).
A. DataMaster Ticket
¶ 23. Defendant first contends that the trial court abused its discretion when it admitted
the DataMaster ticket and instructed the jury to presume defendant was under the influence while
not permitting defendant to challenge the test results. We conclude that defendant failed to
preserve his objection to the ruling and decline to address it on the merits.
¶ 24. Defense counsel, responding to the court’s ruling that neither party could pose
relation-back hypotheticals to the chemist, asked whether the court would admit the chemist’s
affidavit, which contained an extrapolation assuming defendant had no drinks in the thirty minutes
prior to the incident. The court responded, “how could it come in?” Defense counsel then said,
“[I] will not be putting any hypothetical or numbers up to the jury about [defendant’s] alcohol
9 concentration” and apologized that he had “completely misunderstood” the court’s ruling. The
court responded, “I think that’s fair given the record. Okay. Are we ready to resume with the
jury?” Defense counsel responded in the affirmative, the jury came back in, and the proceedings
continued. Based on this colloquy, defense counsel effectively withdrew his objection and
therefore “waived his right to a review of the court’s ruling on appeal.” State v. Poutre, 154 Vt.
531, 535, 581 A.2d 731, 734 (1990); see also State v. Spooner, 2010 VT 75, ¶ 19, 188 Vt. 356, 8
A.3d 469 (“By agreeing to [a court’s evidentiary ruling], a party waives his right to review of the
trial court’s ruling on appeal.”).
B. Marijuana and Field-Sobriety Tests
¶ 25. Defendant next contends that the court erred when it refused his request to ask
Penniman whether the amount of marijuana in his backpack could have constituted a crime, and
his request to ask why Penniman refused to administer field-sobriety tests to defendant. The court
did not abuse its discretion on either question.
¶ 26. Evidence is relevant if it has any tendency to make the existence of a consequential
fact more or less probable than it would be without the evidence. V.R.E. 401. As defendant
concedes, trial courts enjoy broad discretion in determining whether evidence is relevant. See
State v. White, 172 Vt. 493, 500, 782 A.2d 1187, 1192 (2001) (“The determination as to whether
evidence one party seeks to admit is relevant is committed to the sound discretion of the trial court,
and we will not disturb its decision absent a showing of an abuse of discretion.” (quotation
omitted)); see id. (“This Court will not interfere with discretionary rulings of the trial court that
have a reasonable basis, even if another court might have reached a different conclusion, nor will
we interfere with the judgment of the trial court simply because a different court might have
reached a different conclusion.” (quotation omitted)). A court’s discretion is “limited in criminal
cases by defendant’s constitutional due process rights and right to confront witnesses against him.”
State v. Memoli, 2011 VT 15, ¶ 23, 189 Vt. 237, 18 A.3d 567 (quotation omitted).
10 ¶ 27. Evidence concerning whether defendant was in possession of an amount of
marijuana that could have been charged as a misdemeanor at the time would not make the fact of
defendant’s purported nervousness more probable than without it.2 The court permitted defense
counsel to elicit from Officer Penniman testimony affirming that defendant possessed 1.21 ounces
of marijuana, plastic baggies, and a scale. Defense counsel also referred to the amount and
paraphernalia in his opening and closing arguments. We agree with the court that, in light of the
evidence defendant was permitted to bring in, any additional probative value of characterizing the
amount of marijuana as a criminal amount was “extremely minimal,” and did not constitute an
abuse of discretion. White, 172 Vt. at 500, 782 A.2d at 1192 (“To support a claim of abuse of
discretion, the complaining party has the burden to show that the trial court withheld its discretion
or exercised its discretion upon grounds clearly untenable or unreasonable.”).
¶ 28. Defendant next contends that the court’s denial of his request to cross-examine
Penniman on his refusal to administer field-sobriety tests was an abuse of discretion. There is no
dispute that Penniman was mistaken when he conditioned administering field-sobriety tests on
defendant’s waiver of Miranda rights. See State v. Farrow, 2016 VT 30, ¶ 13, 201 Vt. 437, 144
A.3d 1036 (noting that field-sobriety tests elicit physical, not testimonial, responses from test-
takers and therefore do not “trigger the privilege against self-incrimination” which Miranda seeks
to protect). Defendant sought to raise the issue in order to undermine Penniman’s credibility.
¶ 29. Whether to administer field-sobriety tests is a discretionary decision by an officer
made in the course of an investigation, not a right of persons accused of DUI. Field-sobriety tests
are not required to establish probable cause to arrest a driver for DUI.3 State v. Richard, 2016 VT
2 In April 2019, the possession of more than once ounce of marijuana was chargeable as a misdemeanor. 2017, No. 86 (Adj. Sess.), § 3. The Legislature subsequently decriminalized the possession of less than two ounces of marijuana. 2020, No. 167 (Adj. Sess.), § 32. 3 To the extent defendant argues that the juror’s question, “[w]hy are you obligated to offer a field sobriety test by law,” is suggestive of an error by the court, defendant failed to preserve an 11 75, ¶ 16, 202 Vt. 519, 150 A.3d 1093 (recognizing that evidence of objective symptoms of
intoxication without preliminary breath test or field-sobriety tests can alone support prosecution
under DUI statute). Nonetheless, while Penniman was mistaken when he told defendant that he
could not administer the tests because defendant had refused to waive Miranda rights, defendant
was permitted to elicit from Penniman that he did not provide defendant an opportunity to take the
tests. We agree with the trial court that the reason why Penniman chose not to administer the tests
is not relevant to the fact that he did not administer them.
C. Brady Letter
¶ 30. Defendant next argues that the court erred in denying his request to question Officer
Penniman regarding the details of a prior probable-cause affidavit disclosed in the Brady letter. A
court may, in its discretion, permit specific instances of witness conduct to “be inquired into on
cross-examination” if probative of the witness’s “character for truthfulness or untruthfulness.”
V.R.E. 608(b); see State v. Lawrence, 2013 VT 55, ¶ 7, 194 Vt. 315, 80 A.3d 58 (quoting United
States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995) for proposition that “evidence of specific conduct
may be inquired into on cross-examination of a witness pursuant to Rule 608(b) only ‘if the
evidence tends to test the truthfulness of testimony given on direct examination’ as to a material
issue of the case”). A “court has broad discretion to exclude extrinsic evidence introduced to
impeach a witness on a collateral matter.” State v. Bergquist, 2019 VT 17, ¶ 33, 210 Vt. 102, 211
A.3d 946. However, the court’s discretion is limited by the Confrontation Clause of the Sixth
Amendment to the United States Constitution, the purpose of which “is to give the opponent the
objection to it. Defense counsel said he did not want to pose the question to Penniman and agreed that the court should not answer it. Spooner, 2010 VT 75, ¶ 19 (“By agreeing to [a court’s evidentiary ruling], a party waives his right to review of the trial court’s ruling on appeal.”). Defense counsel did reiterate that he wanted to tell the jury he thought Penniman “should have given” defendant the opportunity to take the tests, and “that is relevant to this case,” but the court did not allow him to do so. 12 chance to test the truth and accuracy of a witness’[s] testimony and expose a witness’[s] motivation
in testifying.” Id. ¶ 31 (quotation omitted).
¶ 31. The threshold issue here is whether the probable-cause affidavit detailed in the
Brady letter contained representations probative of Officer Penniman’s untruthfulness. Defendant
contends that Penniman “was caught lying,” and the state’s attorney was forced to disclose “his
sworn inaccuracies to the defense bar.” Despite his argument, however, the court found that, while
containing “factually [in]accurate” statements regarding the location of certain evidence, another
officer had relayed those inaccurate statements to Officer Penniman, and it therefore could not
“find that the statement [was] inaccurate because it [was] based on information that was conveyed
to Officer Penniman that happened to be inaccurate.” We cannot conclude, and defendant does
not appear to argue, that this finding is clearly erroneous. See Mullin v. Phelps, 162 Vt. 250, 260,
647 A.2d 714, 720 (1994) (noting that factual findings are upheld unless party can show that there
is no credible evidence supporting finding and that we do not make credibility findings de novo).
Accordingly, the court did not abuse its discretion in concluding that the incident detailed in the
Brady letter was not probative of Penniman’s unthruthfulness and was therefore not an appropriate
subject for cross-examination at trial.4 See State v. Quiroz, 171 Vt. 509, 511, 757 A.2d 464, 466
(2000) (mem.) (concluding that court did not abuse its discretion under Rule 608(b) in limiting
cross-examination regarding specific instances of stealing but permitting it concerning specific
instances of lying about stealing).
4 For the same reason, the federal cases defendant cites are inapposite because they involve witnesses who had either lied under oath or were found to be not credible in previous proceedings. United States v. Cedeno, 644 F.3d 79, 81 (2d. Cir. 2011) (concluding district court erred by not permitting cross-examination of witness about prior incident involving lying under oath but holding that error was harmless); United States v. Woodard, 699 F.3d 1188, 1192, 1199 (10th Cir. 2012) (reversing and remanding to permit cross-examination of witness concerning prior incident in which court found state official not credible regarding material issue). 13 D. Mistrial Motion
¶ 32. Defendant next contends that the trial court should have granted his motion for a
mistrial because Penniman’s unsolicited testimony referencing defendant’s criminal history
unfairly prejudiced his defense. In response to the State’s question, “how did you ascertain the
defendant’s place of birth,” Penniman testified, “by looking at his criminal history record.”
¶ 33. “We review the denial of a motion for mistrial for abuse of discretion.” State v.
Pettitt, 2014 VT 98, ¶ 6, 197 Vt. 403, 104 A.3d 85. The moving party bears the burden of
demonstrating that a denial has resulted in prejudice. State v. Covell, 142 Vt. 197, 199, 453 A.2d
1118, 1119 (1982). Prejudice “depends on the facts and circumstances of each case, and therefore
we review the denial of the motion for mistrial within the context of the entire proceedings.”
Pettitt, 2014 VT 98, ¶ 6 (quotation and brackets omitted). “The trial court is in the best position
to assess whether any comment, in the context of the trial before, is prejudicial enough to warrant
a new trial.” Id. (quotation omitted). A “significant” factor in determining whether a court abused
its discretion in denying a mistrial motion is whether “the defendant failed to request a curative
instruction . . . or refused the court’s offer to give one.” Id. ¶ 9.
¶ 34. The court exercised its discretion, denying defendant’s motion and finding that
Penniman’s testimony was “brief,” did “not identify what that history was in any way,” and was
“not overly prejudicial.” We agree. Defendant has not demonstrated that Penniman’s statement
caused any incurable prejudice. Indeed, he declined an offer from the court to give the jury a
curative instruction. Defendant’s citation to State v. Goodrich, 151 Vt. 367, 564 A.2d 1346 (1989),
does not help him.
¶ 35. In Goodrich, the State sought and obtained permission under Vermont Rule of
Evidence 609 to introduce eight previous convictions to impeach the defendant’s testimony that
he was too intoxicated to form the requisite intent to commit the crime with which he was charged.
Five of the eight convictions were the same as the charge for which he was on trial. The court
14 gave the jury an instruction explaining that they could only use the convictions to assess the
defendant’s credibility. We reversed, explaining that “impeachment by prior convictions is
extremely prejudicial to the defendant in a criminal case.” Id. at 372, 564 A.2d at 1349. We
explained that courts should “carefully” exercise their discretion in ruling on whether to permit the
State to impeach a defendant, and applied a four-factor analysis to assess whether the trial court
had abused its discretion. Id. at 372-73, 564 A.2d at 1349-50. We recognized that “an especially
severe possibility of prejudice” exists when prior crimes are introduced similar to the crime for
which the defendant is accused; “extensive recitation[s]” of prior crimes is “likely to be highly
prejudicial”; the length of time elapsed since the prior crimes is important; and that “[i]f the
defendant has no means of defense other than his own testimony, and the fear of impeachment is
likely to prevent him from testifying, a court may be reluctant to permit such impeachment.” Id.
¶ 36. This situation could hardly be more different. No information about defendant’s
prior convictions was introduced, much less an “extensive recitation.” Defendant has not shown
that he harbored any fear of impeachment that was likely to prevent him from testifying.
Furthermore, the court offered to give a curative instruction to the jury and defendant refused. As
we have previously held, “any potential prejudice to the defendant could be reduced in large part
by the court’s prompt issuance of a curative instruction.” Pettitt, 2014 VT 98, ¶ 9. Taken together,
we readily conclude that the court did not abuse its discretion in denying defendant’s motion for a
mistrial. State v. Gemler, 2004 VT 3, ¶ 16, 176 Vt. 257, 844 A.2d 757 (noting that court’s
discretion in this context “not abused unless the court entirely withholds it or exercises it upon
grounds that are clearly untenable or unreasonable”).
III. Jury Arguments
A. Voir Dire
¶ 37. Defendant’s next argument is that the trial court abused its discretion when it
refused to permit him to ask the following question of potential jurors: “what is worse: an innocent
15 person being convicted or a guilty person going free?” He maintains that the question was crafted
to root out bias in jurors that could prejudice him and asserts the court had no basis in denying him
the opportunity to put the question to them. He contends this error is the kind of “extraordinary
circumstance[]” we have previously said was required to reverse. Woodmansee v. Stoneman, 133
Vt. 449, 456, 344 A.2d 26, 30 (1975). We disagree.
¶ 38. “The nature and scope of voir dire is within the sound discretion of the trial court,
and decisions regarding voir dire will be reversed only where the court abuses its discretion.” State
v. Bernier, 157 Vt. 265, 267, 597 A.2d 789, 790 (1991). Here, the court explained that the question
was confusing because it could “lead the jury to speculate about” matters unrelated to the issues at
hand. We conclude that this alone is a reasonable ground to refuse the question. We note that the
question as posed does almost nothing to ascertain whether jurors will be fair and impartial. See
State v. Atherton, 2016 VT 25, ¶ 10, 201 Vt. 512, 144 A.3d 311 (explaining that defendants’ right
to trial by impartial jury is safeguarded by courts’ gatekeeping function to exclude “from the jury
persons who evince bias against defendant” (quotation omitted)). Further, the question is unfair
in that it assumes one of the two scenarios given is necessarily of greater concern than the other, a
premise which is unsupported.
B. Jury Foreperson
¶ 39. Defendant also claims that the court erred in its manner of selecting a foreperson,
which the court did by choosing a person it concluded had paid attention during trial. Defendant
contends that this procedure risks conferring special influence on the foreperson which could
corrupt the jury’s deliberations. He cites a law review article which stands for the proposition that
where a trial judge appoints a foreperson in a nonrandomized manner, such a practice is a “blatant”
violation of the Sixth Amendment right. However, he does not cite 12 V.S.A. § 1944,
“appointment of jury foreman,” which provides: “In the trial of a cause in the Superior Court by
jury, the court shall appoint one of the jurors foreman at the time such cause is submitted.” This
16 omission is fatal to defendant’s argument. “An appellant’s principal brief must contain ‘the issues
presented, how they were preserved, and appellant’s contentions and reasons for them—with
citations to the authorities, statutes, and part of the record on which appellant relies.’ ” Kelly v.
Univ. Vt. Med. Ctr., 2022 VT 26, ¶ 29, __ Vt. __, 280 A.3d 366 (quoting V.R.A.P. 28(a)(4)(A)).
Because defendant does not cite or discuss the controlling statute governing procedures for
selecting jury forepersons, we do not reach the merits of his argument.
IV. Eluding a Police Officer
¶ 40. Defendant’s final argument is that his conviction for eluding law enforcement
should be vacated because the State did not and cannot prove beyond a reasonable doubt that he
committed that crime. We agree.
¶ 41. The court’s denial of a judgment of acquittal is subject to de novo review. State v.
Berard, 2019 VT 65, ¶ 7, 211 Vt. 39, 220 A.3d 759. “We consider 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.” Id. (quotation omitted). We review questions of statutory interpretation de
novo. State v. Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816.
¶ 42. Section 1133 of Title 23, “[e]luding a police officer,” provides:
(a) No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:
(1) displaying insignia identifying him or her as such; or
(2) operating a law enforcement vehicle sounding a siren and displaying flashing blue or blue and white signal lamp.
The trial court interpreted the term “fail to bring his . . .vehicle to a stop when signaled” “to be the
equivalent of . . . precluding an individual from starting their vehicle” after they have been directed
17 to “hang tight.”5 The court’s interpretation is not supported by the plain language of the statute.
State v. Masic, 2021 VT 56, ¶ 16, 215 Vt. 235, 261 A.3d 646 (“When the plain language of the
statute clearly indicates legislative intent,” which is the touchstone of statutory interpretation, “we
implement the statute according to the plain language.” (quotation omitted)).
¶ 43. We conclude that to bring a motor vehicle to a stop under § 1133 necessarily means
that the vehicle must first be in motion. Thus, to fail to bring a vehicle to a stop when signaled
means that an operator is being signaled to stop while the vehicle is in motion, and the operator
fails to stop despite the signal. Those requirements are not present here.
¶ 44. Officer Penniman first approached defendant when defendant was stationary. The
two engaged in a brief colloquy before Penniman told defendant to “hang tight” while Penniman
left to activate his cruiser camera. Only when Penniman turned to walk away did defendant leave.
Officer Penniman then activated his lights, but not his siren, and did not otherwise signal for
defendant to stop. Accordingly, because defendant did not fail to bring his vehicle to a stop when
signaled to do so by an enforcement officer, the State cannot prove defendant violated the statute.
¶ 45. We are unpersuaded by the State’s arguments concerning the possible negative
consequences of interpreting the statute according to its plain language. It imagines that an
enforcement officer “who has probable cause to believe an operator is impaired and operation is
imminent” must “wait to stop the person until after the vehicle starts moving” before § 1133
applies. An officer with probable cause to believe an operator is impaired can and should take
appropriate steps to prevent the operator from driving, not wait to obtain additional probable cause
to charge the person with eluding. The State also contends that once stopped after being signaled
to do so, an operator can drive off again without repercussion, endlessly complying with the statute
5 In its order denying defendant’s renewed motion for judgment of acquittal, the court reasoned that “Penniman’s instruction for defendant to remain in a particular location amounted to a stop.” 18 in a farcical game of hide-and-go-seek. This unfairly reduces the facts of this case to an absurdity.
Penniman could have signaled defendant to stop while defendant was in motion under (a)(1) or
activated the cruiser’s lights and siren while defendant was in motion under (a)(2). See State v.
Roy, 151 Vt. 17, 25-26, 557 A.2d 884, 889-890 (1989) (holding that § 1133 is strict-liability
crime), overruled on other grounds by State v. Brillon, 2008 VT 35, ¶ 13, 183 Vt. 475, 955 A.2d
1108. Penniman did neither and we refuse to extend the operation of this statute beyond the
Legislature’s intent, which is evidenced by its plain language.6
¶ 46. Similarly, the cases on which the trial court relied and the State defends on appeal,
are distinguishable. In each, operators fled after police had signaled them to stop. See State v.
Williams, 2009 Ohio 4031, ¶ 7 (describing operator who, while looking “straight” at law-
enforcement officer who told him to “not turn that car on,” turned car on, reversed into cruiser and
fled while being chased by cruiser with lights and sirens activated); State v. Bradley, 2015 Ohio
5421, ¶¶7-8, 55 N.E.3d 580 (describing operator who “jammed the gas to go backwards” away
from “multiple” cruisers with their lights and sirens activated, and continued to flee while being
monitored by police helicopter).7 The fact that in each case the vehicles were initially stationary
6 We note, without deciding, that the State may have had other charge options here. See, e.g., State v Blanchard, 2021 VT 13, ¶ 46, 214 Vt. 225, 256 A.3d 567 (discussing 13 V.S.A. § 3001, “impeding police officers”). The State appeared to concede as much in its closing argument: “The State recognizes that this statute [23 V.S.A. § 1133] is probably not the best fit for what the defendant did.” 7 The Ohio statute involved in Williams and Bradley includes the term “flee,” which Vermont’s statute does not. See Ohio Rev. Code Ann. § 2921.331(B) (2012) (“No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to the bring the person’s motor vehicle to a stop.” (emphasis added)). In this way, the Ohio statute is like § 11-911 of the Uniform Vehicle Code adopted by the National Committee on Uniform Traffic Laws and Ordinances. See Uniform Vehicle Code, § 11-911, at 160 (2000), https://iamtraffic.org/wp-content/uploads/2013/01/UVC2000.pdf [https://perma.cc/Y2Q2-VL9Z] (“Any driver of a motor vehicle who willfully fails or refuses to bring his or her vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty . . . .”). It is not clear in either case whether the existence of “flee” in addition to “elude” influenced the 19 does not change the fact that, after the vehicles began moving, the defendants were signaled to
stop and did not.
¶ 47. Even construing, as we must in this posture, Penniman’s utterance to “hang tight”
as a “signal” under the statute, it is nonetheless not a signal to stop because defendant was not
moving when Penniman said it. See Berard, 2019 VT 65, ¶ 7 (“We consider 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.” (quotation omitted)). To the extent the Ohio Court of Appeals has interpreted
Ohio’s statute as prohibiting persons from merely starting their motor vehicles if commanded not
to, we decline to follow that reasoning. Our statute plainly requires a vehicle to be in motion
before a qualifying signal from an enforcement officer can trigger it.
¶ 48. Accordingly, defendant’s conviction for eluding a police officer is vacated.
Defendant’s DUI conviction is affirmed. The eluding conviction is vacated.
FOR THE COURT:
Associate Justice
Ohio Court of Appeals’ analysis. However, there is no question that “to elude or flee a police officer” is more expansive than “fail[ing] to bring [a] . . . vehicle to a stop.” 20