In State v. Nicholas, 2016 VT 92 (August 26, 2016), the Vermont Supreme Court affirmed convictions for cruelty to a child and domestic assault.
Issue: Defendant appealed his convictions, arguing that the jury instructions allowed a non-unanimous verdict on the child-cruelty charge and that the State’s conduct created a risk of undue prejudice for both charges.
Holding: The Court thoroughly reviewed when a specific unanimity instruction was required in cases involving multiple acts that could support a conviction. It urged the trial courts to include these instructions in close cases. However, it found that it was not plain error to fail to include one in this case because the defendant was not prejudiced. The defendant had raised only a blanket defense that did not distinguish between the multiple acts, and the conviction for domestic assault was sufficient basis to support the child-cruelty conviction. The Court also held that trial court acted within its discretion to deny defendant’s motion for a new trial based on the cumulative risk of undue prejudice regarding multiple incidents at trial.
Dissent: Robinson, J., filed a dissent regarding the application of facts in this case to the legal standards properly articulated by the majority. She argued that this was not, as the majority claimed, a case involving a multiplicity of relatively undifferentiated incidents and a defense of a general denial, and so there should have been a unanimity instruction given to the jury. She found it highly likely that the jurors relied on different claims of abuse in convicting defendant of child-cruelty, and so the failure to include the instruction was plain error.