Volume 142 — Vermont Reports

<bold>1. Pleading — Motion for Acquittal — Tests</bold> The issue on a motion for judgment of acquittal is whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has introduced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt. V.R.Cr.P. 29.<page_number>Page 100</page_number> <bold>2. Trial — Questions for Jury — Credibility of Witnesses</bold> The credibility of the testimony of the victim of sexual assault and the weight to be given it were for the jury's determination. <bold>3. Pleading — Motion for Acquittal — Particular Cases</bold> Where defendant was charged with the crime of sexual assault, the trial court did not err as a matter of law in denying the defendant's motion for judgment of acquittal where the record disclosed that the victim observed the defendant for an appreciable period of time at close range both before and after the sexual assault, that the victim identified the defendant among a group of persons, an identification which was corroborated by three witnesses, that the victim promptly identified the photograph of the defendant from among photographs displayed to him by the police, and that the victim identified the defendant as his assailant in court and identified the shirt and pants which the police had taken from the defendant as those his assailant was wearing on the night of the attack; it could not be said that there was no evidence fairly and reasonably tending to show the defendant's guilt, or that the jury was not warranted in finding him guilty beyond a reasonable doubt. <bold>4. Witnesses — Competency — Experts</bold> The decision of whether to admit expert testimony is committed to the trial court's discretion and will not be disturbed unless it is made to appear from the evidence that it was clearly erroneous or founded on an error of law. <bold>5. Witnesses — Competency — Experts</bold> In exercising its discretion to decide whether to admit expert testimony, the trial court must determine as a preliminary matter whether the proffered testimony will shed light on a subject matter that is beyond the ken of the average lay person, and next the trial court must be satisfied that the expert has sufficient skill, knowledge and experience to make it appear his opinion will probably aid the jury in its search for the truth. <bold>6. Witnesses — Expert Evidence — Value</bold> Where the defendant was charged with sexual assault on a nine-year-old boy, the trial court did not err in denying the defendant the right to introduce expert testimony on the issue of reliability of eyewitness identification, where the victim's identification of the defendant as his assailant resulted from the boy's observation of the defendant from close proximity, in the daylight, and for a substantial period of time, and where the victim's observation occurred before any stressful situation arose, and an identification under those circumstances is a part of the common experience of most lay people; the trial court properly ruled that the jury had the ability to assess the reliability of the victim's identification of the defendant without the aid of expert testimony as to how stress may affect human perceptional processes.<page_number>Page 101</page_number> <bold>7. Jury — Prejudice — Waiver by Defendant</bold> The holdings of <italic>State</italic> v. <italic>Prime,</italic> <cross_reference>137 Vt. 340</cross_reference>, <cross_reference>403 A.2d 270</cross_reference> (1979), and <italic>State</italic> v. <italic>Woodard,</italic> <cross_reference>134 Vt. 154</cross_reference>, <cross_reference>353 A.2d 321</cross_reference> (1976), to the effect that where a suggestion of taint or bias is raised regarding an empanelled jury, only the defendant may waive the objection and that in such a situation reversible error depends only on a showing by the defendant of the existence of circumstances capable of prejudicing the deliberative function of the jury, are limited to situations where the trial court, upon discovering the possibility of jury prejudice, fails to voir dire the jury to determine if in fact any prejudice has been created. <bold>8. Jury — Prejudice — Determination</bold> Where one of the empanelled jurors indicated that he knew that it was a second trial, the trial court had no duty to obtain a waiver of possible prejudice from the defendant personally, where the trial court after learning of the potential problem had examined the jurors in the presence of the defendant and his attorney to determine if any prejudice had been created, and concluded that none had. <bold>9. Jury — Prejudice — Proof</bold> In order for the defendant in a criminal case to establish the actual existence of jury bias, the defendant must show that the jury is unable to decide the case solely on the evidence presented at trial. <bold>10. Jury — Prejudice — Proof</bold> Where one of the empanelled jurors indicated that he knew it was a second trial, the defendant failed to establish the actual existence of jury bias so as to indicate a denial of his right to a fair and impartial jury, where the defendant had not asked leave of the trial court to conduct his own voir dire of the jury for subsequent prejudice, nor moved for a mistrial on the grounds of juror bias, where the record revealed that the jury gave the court its assurance of impartiality, and where the defendant's rebuttal of that assurance of impartiality consisted solely of speculation as to how the jury might be prejudiced by the information that this was his second trial.

<bold>1. Constitutional Law — Right To Be Informed of Nature and Cause</bold> <bold>of Accusation</bold> Chapter I, art. 10 of the Vermont Constitution and the Sixth Amendment of the U.S. Constitution confer upon a criminal respondent, in almost identical words, the right to be informed of the cause and nature of the accusation against him. <bold>2. Indictment and Information — Sufficiency — Generally</bold> An information is sufficient if it sets forth charges with such particularity as will reasonably indicate the exact offense the accused is charged with, and will enable her to make intelligent preparation for her defense, and this is not a subjective inquiry as to what the accused actually understood, but rather a scrutiny of the charge, as made, to determine what offense is reasonably indicated by its language. <bold>3. Indictment and Information — Specificity — Use of Statutory</bold> <bold>Language</bold> When dealing with a statute which sets forth in the disjunctive the several ways whereby it may be violated, the state must specifically select the act or acts which make up the crime so that defendant is sufficiently apprised of what she must defend against.<page_number>Page 284</page_number> <bold>4. Indictment and Information — Complaint — Sufficiency</bold> The criminal complaint must do more than merely cite the statutory language in order to inform both defendant and the court of the conduct which violates the applicable statute. <bold>5. Indictment and Information — Sufficiency — Particular Cases</bold> Where defendant was charged with three counts of welfare fraud, the information as drafted was insufficient to sustain judgments of conviction where it was set forth almost exclusively in terms of the statute and alleged no specific acts which would give notice to the defendant of what conduct violated the statute, and where the affidavit of probable cause accompanying the information contained references to defendant's failure to notify the Department of Social Welfare about support checks that she was receiving, but also contained references to her initial receipt of ANFC benefits, her successful completion of the application process, and her reporting of numerous changes in her living circumstances, and therefore, defendant was required to sort out from the morass of claims not only the criminal conduct from the innocent, but also to assign the allegedly criminal conduct to one or more of the three counts.

<bold>1. New Trial — Hearing — Evidence</bold> In the case of defendant convicted of stabbing another during a street brawl between two groups of men, an evidentiary hearing on defendant's motion for a new trial was appropriate where the newly discovered evidence on which the motion was based consisted of what could be a credible third party confession. V.R.Cr.P. 33.<page_number>Page 563</page_number> <bold>2. New Trial — Hearing — Evidence</bold> When requested in a criminal case, an evidentiary hearing should be granted on a motion for new trial based on newly discovered evidence, if the grounds relied upon are stated with particularity, and the motion is neither frivolous nor totally lacking in merit. V.R.Cr.P. 33.

<bold>1. Criminal Law — Election Between Counts — Same Act</bold> The same act may constitute two separate crimes, and, if they are not so related that one of them is a constituent part, or necessary element, in the other, so that both are in fact one transaction, a prosecution and conviction may be had for each offense. <bold>2. Homicide — Involuntary Manslaughter</bold> Involuntary manslaughter is defined as a killing caused by an unlawful act, but not accompanied with any intention to take life. <cross_reference>13 V.S.A. § 2304</cross_reference>. <bold>3. Motor Vehicles — Operation Under the Influence — Elements</bold> Driving under the influence with a fatal accident resulting requires the death of a person resulting from the defendant's operation of a vehicle on a highway while under the influence of intoxicating liquor. 23 V.S.A. §§ 1201, 1210. <bold>4. Criminal Law — Election Between Counts — Same Act</bold> Since an essential element of the crime of driving under the influence with a fatal accident resulting is that the defendant be under the influence of intoxicating liquor, while the crime of manslaughter does not require this element, trial court did not err in denying motion of defendant, charged with both crimes, to require the state to elect between the charges, although the same act gave rise to each. <cross_reference>13 V.S.A. § 2304</cross_reference>; 23 V.S.A. §§ 1201, 1210. <bold>5. Pleading — Motion for Acquittal — Tests</bold> The sole issue raised by a motion for judgment of acquittal is whether the prosecution has introduced evidence fairly and reasonably tending to show the defendant's guilt, so that a jury, on that evidence, would be justified in finding guilt beyond a reasonable doubt. V.R.Cr.P. 29.<page_number>Page 596</page_number> <bold>6. Appeal and Error — Motion for Judgment of Acquittal — Tests on</bold> <bold>Review</bold> In determining whether a motion for judgment of acquittal was properly denied, the supreme court must review the facts in the light most favorable to the state. V.R.Cr.P. 29. <bold>7. Pleading — Motion for Acquittal — Particular Cases</bold> In the case of defendant found guilty of manslaughter, driving under the influence with a fatal accident resulting, driving while license suspended, and driving while intoxicated with injuries resulting, where the state introduced evidence that after the accident defendant showed physical characteristics symptomatic of intoxication, that a breath test taken at the police station showed a blood-alcohol content of 0.26%, that he struck a motorcycle head-on in the motorcycle's lane of traffic, and that as a result of the collision the motorcycle driver was killed and a passenger injured, the jury was justified in finding defendant guilty beyond a reasonable doubt on all four counts; therefore, defendant's motion for judgment of acquittal was properly denied. <cross_reference>13 V.S.A. § 2304</cross_reference>; 23 V.S.A. §§ 674, 1201(a)(2), 1210(b); V.R.Cr.P. 29. <bold>8. Appeal and Error — Matters Appealable</bold> Claimed error concerning court's charge to jury not objected to at trial can be considered by the supreme court only if it satisfies the glaring error test: the error must be so grave and serious that it strikes at the very heart of constitutional rights. <bold>9. New Trial — New Evidence — Generally</bold> In order for a new trial to be granted on the ground of newly discovered evidence, defendant must show: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. <bold>10. New Trial — New Evidence — New Trial Denied</bold> Where defendant's motion for a new trial was based on the discovery of two new witnesses, but the testimony of those witnesses as disclosed by their depositions was substantially identical to that of several witnesses who testified at trial, since the new evidence was merely cumulative, a new trial was not warranted.

<bold>Zoning — Conditional Uses — Particular Cases</bold> Application for a conditional use permit was deemed to have been granted by town board of adjustment where within forty-five days after its hearing on the application the board issued a decision containing findings which were merely conclusions of law and which did not indicate to the parties and the appellate court what was decided and upon what considerations. 24 V.S.A. §§ 4470(a), 4471.

<bold>1. Appeal and Error — Questions Considered on Appeal — Matter Not</bold> <bold>Briefed</bold> Where defendant, who appeared pro se on appeal of a judgment rendered against him, failed to comply with the rules governing adequate briefing, in that he failed to state the case concisely, did not clearly delineate the issues presented for determination, and did not refer to any statutory or case law in support of his arguments, the supreme court would consider those issues which he appeared to have raised, notwithstanding the fact that it<page_number>Page 618</page_number> had in the past refused to review claims of error inadequately briefed. V.R.A.P. 28(a)(2), (3), (4). <bold>2. Trial — Jury Trial Where One Is Not Required — Demand for Jury</bold> <bold>Trial</bold> A party may demand a jury trial by serving on the other parties a demand in writing at any time after the commencement of the action, but no later than ten days after service of the last pleading; failure to serve such a demand constitutes a waiver of the right to jury trial. V.R.C.P. 38(b), (d). <bold>3. Trial — Jury Trial Where One Is Not Required — Demand for Jury</bold> <bold>Trial</bold> Where defendant failed to serve a timely demand for a jury trial as required by the rules of civil procedure and made no objection when the trial court ruled that, since defendant's attorney did not comply with the court's request that he draft a proposed order to amend his answer to include a request for a jury trial, defendant had waived his right to a jury trial, defendant could not claim on appeal that it was error to fail to allow him a jury trial. V.R.C.P. 38(b), (d). <bold>4. Appeal and Error — Findings — Tests for Overturning</bold> Findings of fact challenged on appeal are not to be set aside unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52. <bold>5. Trial — Questions for Trier — Conflicts in Evidence</bold> When the evidence is conflicting, the credibility of the witnesses, the weight of the evidence and its persuasive effect are matters for the exclusive determination of the trier of fact, and although there may be inconsistencies or substantial evidence to the contrary, its determination must stand if supported by credible evidence. V.R.C.P. 52.

<bold>1. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> Issues not raised in the trial court, even those of constitutional dimension, will not be considered by the supreme court on appeal. <bold>2. Insurance — Construction of Contracts — Generally</bold> Insurance contracts are to be construed according to their terms and the evident intent of the parties as gathered from the language used. <bold>3. Insurance — Construction of Contracts — Generally</bold> Although an insurance contract is to be strictly construed against the insurer, if clear and unambiguous, the provisions of the contract must be given force and effect and be taken in their plain, ordinary and popular sense; hence, when the key words are defined by the policy in question, the court's inquiry as to whether a covered event has occurred is limited to the four corners of the policy itself. <bold>4. Mortgages — Default — Right of Entry</bold> Once the condition of a mortgage is broken, the mortgagee becomes at law the absolute owner of the property and is entitled to immediate possession, and may, without notice, enter upon the property and take possession thereof, if he can do so peaceably and unresisted. <bold>5. Mortgages — Default — Right of Entry</bold> Once the condition of a mortgage is broken, the mortgagee possesses a right of entry, but until that right is exercised, the mortgagor retains lawful possession of the property. <bold>6. Insurance — Construction of Contracts — Particular Cases</bold> In an action arising from the sale of a bar and restaurant where<page_number>Page 624</page_number> title to the personal property within the premises was to pass when full payment was made on a promissory note on which the mortgagors defaulted, since one mortgagor was permitted to enter the premises through an unlocked door and remove the personal property therein by deputies who had been hired by and were acting as agents of the mortgagees, there were no visible marks of entry and any damage to the premises was not shown to have been connected with the mortgagor's actions, the premises were not "burglarized" by the mortgagor within the meaning of insurance policy issued to the mortgagee by defendant insurer.