State v. Melissa Robitille

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.
2019 VT 36
No. 2017-403
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Caledonia Unit,
Criminal Division
Melissa Robitille December Term, 2018
Thomas A. Zonay, J.
David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund and Robinson, JJ., and Teachout, Supr. J. and Howard,
Supr. J. (Ret.), Specially Assigned
¶ 1. REIBER, C.J. Defendant Melissa Robitille appeals her conviction for involuntary
manslaughter for the death of her son. She argues that the trial court violated the Confrontation
Clause when it restricted cross-examination of the State’s key witness; that the State produced
insufficient evidence to support a conviction; and that the court erred in failing to provide a specific
unanimity instruction to the jury. We affirm.
I. Facts
¶ 2. The central facts presented at trial are as follows. They are undisputed except as
noted. Defendant’s thirteen-year-old son I.R. required twenty-four-hour care due to a birth defect
called holoprosencephaly1, in which the brain fails to separate into two lobes during gestation and
instead remains partially fused. Related to the holoprosencephaly, I.R. had only one eye and was
blind or severely vision-impaired; he had no external ears and had severely impaired hearing; he
could not talk normally; he could not walk independently; and he could not eat or drink through
his mouth. In order for I.R. to eat or drink, his parents and caretakers put food or water into a
feeding/water bag and then connected the bag to a feeding tube, which connected to a feeding port
inserted into I.R.’s stomach (called the “MIC-KEY”). At the time of I.R.’s death, he weighed
forty-nine pounds and was fifty inches tall. Also related to the holoprosencephaly, I.R.
experienced many endocrine disorders. One of these, diabetes insipidus, required assiduous
attention to his fluid balance. I.R. attended school and was learning sign language. He lived with
and was cared for by his parents, with support from caregivers.
¶ 3. I.R.’s father died in January 2014. Defendant met Walter Richters online soon
afterwards. In March 2014, she invited him to move from Missouri to live with her, which he did.
Richters did not work or take care of I.R. Defendant worked a night shift and relied on caregivers
to assist with I.R.’s care.
¶ 4. In August 2014, while the caregivers were on vacation, defendant took time off
work to care for her son. On the evening of August 21, 2014, defendant, Richters, and I.R. were
at home in the kitchen, and defendant fed I.R. his dinner. Testimony differed about what happened
next. Richters testified that defendant poured around one shot of vodka into I.R.’s feeding bag
(equivalent to around one ounce).2 Richters admitted during trial that this testimony contradicted
1
There are three types of holoprosencephaly, which exist on a spectrum of severity: lobar
(most severe), semilobar (less severe), and alobar (least severe). I.R. was diagnosed with
semilobar holoprosencephaly during his life, but the medical examiner determined that he had
experienced lobar holoprosencephaly. The distinctions are not important to this opinion, so we
refer to the condition simply as holoprosencephaly.
2
Defendant represented that one shot of vodka was equivalent to around one ounce or
thirty cubic centimeters (cc’s). An expert witness agreed that one shot was equivalent to one
2
his prior statements under oath, in a deposition and a police interview, in which he said that he had
poured the vodka into the bag. In contrast to Richters’s trial testimony, defendant testified that
Richters poured fifteen cubic centimeters (cc’s) of vodka into the feeding bag (equivalent to around
half an ounce). Like Richters, defendant’s testimony at trial contradicted her prior statements
under oath in interviews with the police, in which defendant told police that she had poured the
vodka. Defendant also testified that she diluted the vodka with water after Richters poured the
vodka into the bag. Both defendant and Richters testified that it was defendant who connected the
feeding bag to I.R.’s feeding port. They also agreed that I.R. seemed to be experiencing pain that
evening, and that Richters suggested administering the alcohol to alleviate his discomfort.
However, in defendant’s prior statements with police, she had said that her son was very sleepy
that evening, and she had not mentioned any unusual discomfort.
¶ 5. After receiving the alcohol, I.R. stayed with defendant and Richters in the kitchen
for a short time while defendant played a video game. I.R. appeared calmer. Defendant testified
that Richters was drinking vodka and Dr. Pepper during this time and that he had multiple
opportunities to add alcohol to I.R.’s feeding bag without her knowledge when he went to the
bathroom, which was located behind defendant. Richters testified that he did not begin drinking
until after I.R. went to bed, but he also testified that he did not remember when he started drinking.
Richters stated that I.R. was given nothing else before I.R. went to bed. Over the course of the
night, Richters drank a fifth of vodka, mixed with Dr. Pepper. At some point after I.R. went to
bed and before Richters or defendant went to bed, Richters “passed out” from drinking alcohol.
Richters went to bed around 1:45 a.m., and defendant went to bed around 2:00 a.m. She checked
on her son first and he appeared fine, and she left his baby monitor on “full blast.” She woke at
ounce. Another expert witness described one shot of vodka as equivalent to 1.5 ounces or forty-
five milliliters.
3
9:00 a.m. and went to her son’s room to care for him, and she discovered he had died. Defendant
shouted to Richters that he should call 911, which he did.
¶ 6. There was an autopsy performed on I.R.’s body. The autopsy showed that I.R.’s
blood alcohol content (BAC) was 0.146. He also had caffeine in his system. The medical examiner
determined I.R.’s cause of death was his medical condition, holoprosencephaly, with a
contributory cause of acute ethanol toxicity. In other words, his blood-alcohol level, combined
with his holoprosencephaly, caused his death.
¶ 7. Subsequently, defendant and Richters were arrested and charged with second-
degree murder, which requires a minimum sentence of twenty years and a maximum sentence of
life imprisonment. 13 V.S.A. § 2303(a)(2). The State later amended both charges to involuntary
manslaughter, which carries a sentence of one to fifteen years’ imprisonment. Id. § 2304. Richters
pleaded guilty and agreed to testify for the prosecution as part of his plea agreement. He received
a sentence of four to fifteen years, split to serve three years. Defendant proceeded to a jury trial
and was convicted of involuntary manslaughter in April 2017. She was sentenced to four to twelve
years. Defendant timely appeals.
¶ 8. Defendant makes three arguments on appeal: (1) the trial court impermissibly
restricted cross-examination of the State’s key witness; (2) the State presented insufficient
evidence to sustain her conviction; and (3) the court committed plain error in not providing jurors
with a unanimity instruction. We consider each argument in turn.
II. Cross-Examination
¶ 9. Defendant makes two claims regarding the cross-examination of Richters, the
prosecution’s key witness. First, she argues that the court made an erroneous finding that the State
amended Richters’s charge independently of the plea deal, which impermissibly limited his cross-
examination. Second, she argues that the court limited Richters’s cross-examination in a way that
4
violated her right to confrontation under the Sixth Amendment to the U.S. Constitution.3 The
specific facts underlying these arguments are presented below.
¶ 10. Prior to trial, defendant indicated to the court that she intended to question Richters
about his plea deal with the State. Specifically, she asked to highlight the potential sentence he
faced at the time he agreed to testify. This request initiated a discussion about two things: (1)
whether Richters faced a sentence for second-degree murder or manslaughter at the time he agreed
to testify, and (2) whether the court should permit questioning regarding the actual number of years
Richters faced, rather than more general questioning about how his plea deal secured a reduced
sentence.
¶ 11. Defendant contended that Richters was facing a sentence for second-degree murder
at the time he agreed to testify. The State represented that Richters was facing a sentence for
manslaughter. It had amended his charge from second-degree murder to manslaughter
independently of Richters’s plea deal, in response to a prior judge’s indication that the evidence
would not support a second-degree-murder charge. The court then asked defense counsel, “[W]hat
does the second degree have to do with this case, then?” Defense counsel answered, “I’m not in a
position to raise it at this point. I can’t.” This concluded the discussion about Richters’s actual
exposure at the time he agreed to testify.
¶ 12. The court and the parties also discussed whether defendant should be permitted to
elicit testimony about the specific sentence Richters faced, in number of years, rather than more
general questioning about the reduced sentence. The State contended that it would be prejudicial
to discuss the specific sentence, given that defendant was charged with the same crime as Richters.
The court ruled that defendant could ask what sentence Richters actually received according to his
3
Defendant also states that the court violated her right to confrontation under Chapter
One, Article Ten of the Vermont Constitution, but she does not discuss that claim in her brief. We
therefore address only her claim of a violation under the U.S. Constitution. State v. Taylor, 145
Vt. 437, 439, 491 A.2d 1034, 1035 (1985) (declining to address state constitutional issues that
were inadequately briefed).
5
plea agreement and elicit testimony that Richters had faced “higher exposure” before agreeing to
testify. But she could not ask “about the potentials or what he was facing, the numbers.” The
court reasoned that the more general testimony would achieve defendant’s purpose, and the Sixth
Amendment did not require the court to permit defendant to ask about the specific sentence, in
number of years, that Richters faced.
¶ 13. At trial, Richters testified that he received a sentence of four to fifteen years, split
to serve three years. Richters affirmed that this sentence meant he would serve three years in jail
and would not serve more time unless he violated probation. The plea agreement was entered into
evidence. Defense counsel also asked, “In general, not as part of the plea agreement, but wasn’t
it true that you were facing more than three years, in general . . . on this charge? And isn’t it true
that you agreed to testify as part of getting the smaller amount of jail time?” Richters said yes.
A. Court’s Finding Regarding Amended Charge
¶ 14. First, we review defendant’s argument that the court limited Richters’s cross-
examination based on an erroneous factual finding that he was facing a manslaughter charge, not
a second-degree-murder charge, when he agreed to testify. It is not clear whether the court made
a finding here; rather, it appears that defense counsel conceded he could not argue that the second-
degree-murder charge was relevant, and the court proceeded to the next issue. To the extent the
court’s conduct can be construed as a finding, we hold there was no error. We uphold a trial court’s
factual findings if there is credible evidence in the record to support the finding. State v. Patten,
2018 VT 98, ¶ 4, __ Vt. __, 197 A.3d 873. The record indicates that a different trial judge, earlier
in the proceedings, expressed skepticism that the State could prove second-degree murder here;
the State admitted the second-degree-murder charge was weak months before the charge was
amended; the charge was reduced for the defendant, as well, around the same time; and the
prosecutor represented that the amendment was wholly independent of the plea agreement. The
record supports a finding that the State amended the charge independently of the plea agreement.
6
Therefore, we cannot conclude that the trial court limited cross-examination based on an erroneous
factual finding.
¶ 15. Defendant contends that Richters’s understanding, not his actual exposure, should
be determinative in deciding whether to admit the evidence. The State contends that this issue was
not preserved. See State v. Ovitt, 2005 VT 74, ¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.) (“An issue
is not preserved for appeal unless a party raises it with specificity and clarity below, thereby
ensuring that the trial court will have an opportunity to fully develop the relevant facts and to reach
considered legal conclusions.”); see also State v. Sole, 2009 VT 24, ¶ 13, 185 Vt. 504, 974 A.2d
587 (affirming that “preservation rule exists so that the trial court can address any correctable
errors before they are presented here, and develop an adequate record for any appeal” and
concluding “[d]efendant’s argument [was] unpreserved because . . . [he] did not raise this
particular issue in a manner requiring a ruling by the district court”).
¶ 16. We agree that the issue was not preserved. Although the record shows that
defendant mentioned Richters’s understanding, her argument was entirely focused on his actual
exposure at the time he agreed to testify. In fact, when the State represented that it had amended
the charge independently of the plea deal—a representation relevant to what Richters actually
faced, not what he thought he faced—defendant conceded that she could not maintain that the
second-degree-murder charge was relevant. Instead, she argued that she should be allowed to
question Richters regarding the fifteen-year sentence for manslaughter. In short, defendant never
presented to the trial court “with specificity and clarity” the argument that she now advances.
Ovitt, 2005 VT 24, ¶ 13. Therefore, the trial court had no opportunity to rule on the matter. There
is no decision on that point for us to review.
B. Confrontation Clause
¶ 17. Next, we consider defendant’s argument that the court violated her constitutional
right to confrontation by limiting Richters’s cross-examination. See U.S. Const. amend. VI. She
7
argues that the court should have allowed her to inquire into the potential sentence Richters faced,
in number of years, at the time that he agreed to testify. She reasons that the jury could not
sufficiently evaluate the “magnitude of his motive” to testify without learning the specific details
of his exposure.4
¶ 18. The Sixth Amendment to the U.S. Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” The right to confrontation guarantees a defendant the right to cross-examine a witness.
Davis v. Alaska, 415 U.S. 308, 315 (1974) (“The main and essential purpose of confrontation is to
secure for the opponent the opportunity of cross-examination.” (quotation omitted)). “Cross-
examination is the principal means by which the believability of a witness and the truth of his
testimony are tested,” and “the exposure of a witness’ motivation in testifying is a proper and
important function” of that right. Id. at 316. Cross-examination satisfies the Sixth Amendment’s
guarantee if the defendant is “allowed the opportunity to expose to the jury the facts from which
jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.” State v. Raymond, 148 Vt. 617, 621, 538 A.2d 164, 166 (1987)
(quotation omitted); see also United States v. Klauer, 856 F.2d 1147, 1149 (8th Cir. 1988) (“The
limitation of cross-examination results in constitutional error where a reasonable jury might have
received a significantly different impression of the witness’ credibility had respondent’s counsel
been permitted to pursue his proposed line of cross-examination.” (quotation and alterations
omitted)).
¶ 19. However, although “the Confrontation Clause guarantees an opportunity for
effective cross-examination,” it does not guarantee “cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.
4
In the context of this constitutional claim, defendant reiterates her argument that
Richters’s understanding, rather than his actual exposure, is determinative. Again, defendant did
not present this issue below, and there is no trial court decision on this point for us to review.
8
15, 20 (1985); see also State v. Larose, 150 Vt. 363, 369, 554 A.2d 227, 231 (1988) (emphasizing
right to confrontation is not “a mandate for cross-examination on anything the defendant desires”
and quoting Fensterer, 747 U.S. at 20). “Once a defendant has been afforded the opportunity for
sufficient cross-examination to satisfy the Sixth Amendment guarantee, the trial court has
discretionary authority to control the scope of further cross-examination.” Raymond, 148 Vt. at
621, 538 A.2d at 166 (quotation and alterations omitted); see also State v. Cartee, 161 Vt. 73, 77,
632 A.2d 1108, 1111 (1993) (holding that Sixth Amendment does not “prevent a trial court from
imposing reasonable limits on cross-examination into the partiality of a prosecution witness” and
affirming that “a court retains wide latitude ‘to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” (quoting Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986)). Moreover, the Confrontation Clause protects only the
admission of evidence that is relevant and admissible. State v. Findlay, 171 Vt. 594, 595, 765
A.2d 483, 486 (2000) (mem.) (affirming defendant’s right under federal and Vermont constitutions
to “present exculpatory evidence” and “confront witnesses brought against him, where the
evidence is relevant and admissible under the rules of evidence” (quotation omitted)).
¶ 20. Our question, then, is what level of inquiry is sufficient to “satisfy the Sixth
Amendment guarantee.” Raymond, 148 Vt. at 621, 538 A.2d at 166. We previously have held
that it violates the Confrontation Clause to prohibit all inquiry into a witness’s motivation to testify.
In State v. Findlay, we determined that the trial court committed reversible error in prohibiting all
evidence related to other police-controlled drug purchases involving the State’s witness and a
police informant, where the State’s case relied primarily on the testimony of that witness regarding
a controlled drug purchase between the police informant and the defendant. 171 Vt. at 596, 765
A.2d at 486-87. We reasoned that without evidence of the police informant’s actions in other
police-controlled drug purchases, “the jury was left without the benefit of a reasonably complete
9
understanding of the [drug purchase underlying the conviction] as presented by [the witness]; thus,
cross-examination was significantly undermined.” Id. Similarly, we ruled in State v. Cartee that
the court committed reversible error when it “allowed no inquiry into the possibility that [the
witness] . . . was motivated to fabricate” his story, given an ongoing investigation. 161 Vt. at 77,
632 A.2d at 1111. We observed that without the excluded testimony, “the jury was left without
benefit of a reasonably complete understanding of [the witness’s] account.” Id.; see also State v.
Banis, 2018 WL 3913203, at *3 (Vt. Aug. 6, 2018) (unpub. mem.) (upholding trial court’s
restriction on cross-examination because “the court . . . did not prohibit all questioning into the
[witness’s] possible motive to fabricate her story,” unlike in Findlay, 171 Vt. at 596, 765 A.2d at
486-87, or Cartee, 161 Vt. at 77-78, 632 A.2d at 1111).
¶ 21. In this case, we consider a different issue: whether it violates the Confrontation
Clause for a court to restrict some, but not all, inquiry into a witness’s motivation to testify. More
specifically, we consider whether the Confrontation Clause requires the trial court to permit
inquiry into the specific details behind a cooperative witness’s agreement with the prosecution.
Other courts disagree on this question. For example, the First Circuit held in United States v.
Luciano-Mosquera that the district court did not violate the Confrontation Clause in prohibiting
cross-examination into the specific penalties the cooperating witness would have faced had he not
agreed to testify. 63 F.3d 1142, 1153 (1st Cir. 1995), as amended (Sept. 28, 1995). The First
Circuit reasoned that because the defendant “was able to ask [the witness] repeatedly whether he
had received a benefit for his testimony,” he “had a sufficient opportunity to expose potential
biases” and “there [was] sufficient evidence before the jury (absent the excluded evidence) from
which the jury could make a discriminating appraisal of possible biases and motivations of the
witnesses.” Id. (quotation omitted). The cross-examination the court permitted met “the minimal
constitutional threshold level of inquiry” under the Sixth Amendment. Id.
10
¶ 22. In contrast, the Third Circuit determined in United States v. Chandler that the trial
court should have permitted inquiry into the specific sentences to which the cooperating witnesses
were exposed at the time they agreed to testify. 326 F.3d 210, 222 (3d Cir. 2003). The Third
Circuit did not hold that a trial court should allow such inquiry in all cases. Rather, the court
reasoned that the proper inquiry was “whether, if the trial court had not prohibited [the defendant]
from cross-examining [the witnesses] with respect to the magnitude of the sentence reduction they
believed they had earned, or would earn, through their testimony, the jury might have received a
significantly different impression of their credibility.” Id. at 221 (quotation and alterations
omitted). In that case, one of the cooperating witnesses received a 21-month to 27-month sentence,
reduced from a 97-month to 121-month sentence. The other witness was facing a sentence of 151
to 188 months and expected a reduction. The Third Circuit concluded that based on those facts,
the district court violated the Confrontation Clause in restricting the scope of cross-examination to
exclude inquiry into the specific sentences the witnesses faced prior to testifying. Id. at 222. This
was because “a reasonable jury could have reached a significantly different impression of [the
witnesses’] credibility had it been apprised of the enormous magnitude of their stake in testifying
against [the defendant].” Id.
¶ 23. We do not find it necessary to decide whether we find the Luciano-Mosquera
approach or the Chandler approach more persuasive because the court did not violate the
Confrontation Clause here under either approach. Defense counsel was able to elicit testimony
that Richters received a reduced sentence in exchange for his agreement to testify. Under the
Luciano-Mosquera approach, this testimony was sufficient “to expose potential biases.” 653 F.3d
at 1153 (quotation omitted). Further inquiry into the specific sentence to which Richters was
exposed was not necessary to provide the jury a “reasonably complete understanding” of his
motivation in testifying. Findlay, 171 Vt. at 596, 765 A.2d at 486; Cartee, 161 Vt. at 77, 632 A.2d
at 1111. If we were to adopt the Luciano-Mosquera approach, the cross-examination the court
11
permitted would meet “the minimal constitutional threshold level of inquiry” under the Sixth
Amendment, and there would be no error. 63 F.3d at 1153.
¶ 24. Nor would we find error here if we were to adopt the Chandler approach. The trial
court prohibited the defense from eliciting testimony about what sentence Richters was facing for
involuntary manslaughter—which was a maximum sentence of fifteen years.5 But it did permit
Richters to testify that he was sentenced to four to fifteen years in prison, split to serve three, which
meant he would spend no more than three years in jail unless he violated probation. In short,
Richters was facing fifteen years, and the jury was informed that he received fifteen years, reduced
to three years to serve if he complied with probation. Based on these facts, we cannot find that the
“magnitude of the sentence reduction” Richters received here was such that “the jury might have
received a significantly different impression of [Richters’s] credibility” if the judge had allowed
more details of the sentencing agreement. Chandler, 326 F.3d at 221. If we were to adopt the
Chandler approach, we would conclude there was no error.
¶ 25. Thus, without deciding whether to adopt the Luciano-Mosquero approach or the
Chandler approach, we hold that the court appropriately exercised its discretion and did not violate
the Confrontation Clause in excluding testimony about the number of years Richters faced at the
time he agreed to testify.
III. Sufficiency of the Evidence
¶ 26. Next, we consider defendant’s argument that the State produced insufficient
evidence to sustain her conviction. Specifically, defendant claims that the State failed to prove the
elements of causation and criminal negligence. In addition to the facts recited above, the following
evidence is pertinent to these arguments.
5
As we have explained, defense counsel conceded that the initial murder charge was not
relevant to the plea agreement, and the testimony the defense sought to elicit was related to the
involuntary-manslaughter charge. We also have explained that defendant did not preserve the
issue of what Richters thought he was facing.
12
A. Evidence at Trial
¶ 27. Four expert witnesses testified for the State at trial: Dr. Paul Zimakas, I.R.’s
pediatric endocrinologist; Dr. Sarayu Balu, I.R.’s pediatrician; Dr. Peter Bingham, I.R.’s pediatric
neurologist; and Dr. Elizabeth Bundock, the State’s chief medical examiner. I.R.’s doctors
testified that alcohol was a “toxin” that could have a negative effect on someone with I.R.’s
medical conditions, particularly considering his diabetes insipidus condition. They reported that
they had never discussed alcohol with defendant, would not have expected to need to talk about
alcohol, and would never have recommended giving I.R. alcohol. Dr. Bingham also stated that he
would not have anticipated that one shot of alcohol would have been fatal to I.R. He said that the
larger the “dose” of the “toxin,” the greater the negative effect. Dr. Balu testified that she thought
it was understandable that someone in defendant’s situation would give a child alcohol, thinking
it might calm the child and not harm him.
¶ 28. The medical examiner testified at length about the negative effects alcohol produces
on the body. Whether those negative effects overwhelm the body’s ability “to compensate” and
cause the body’s “systems . . . to start to fail significantly” depends on the person’s age, size,
weight, and medical conditions. A person’s body will be less able to cope with the negative effects
of alcohol if other problems are already present, such as natural diseases or problems with the
endocrine, digestive, respiratory, or brain systems. Thus, for some people, even a small amount
of alcohol could be fatal. She indicated that while a shot of vodka will “yield a BAC,” the BAC
would depend on the person. She said there was very little scientific research available on the
effects of alcohol on children and teenagers and none on the effects of alcohol on someone with
holoprosencephaly.
¶ 29. With regard to I.R., Dr. Bundock asserted that she could not calculate what amount
of alcohol I.R. received based on his BAC at death. She reported that, in her general experience
examining persons who have died due to alcohol consumption, one shot of vodka would not
13
produce a 0.146 BAC. She observed that a 0.146 BAC would not usually be fatal to healthy adults
or teenagers, but it may be fatal for some individuals, depending on their physiology and medical
conditions. She agreed that most people would not think that one shot of alcohol would prove
fatal for anyone.
¶ 30. Dr. Scott Lukas, a psychopharmacologist, testified for the defense. He estimated
that for a healthy teenager, it would take 1.5 shots of vodka to produce a 0.146 BAC—four times
the amount defendant admitted to providing I.R.6 He testified that fifteen milliliters could not have
produced I.R.’s BAC at death, and he would have had to ingest six times that amount in order to
produce a 0.146 BAC.7 He affirmed that there was no scientific research available on the effects
of alcohol on someone with holoprosencephaly. He opined that most people would not have
thought that a small amount of alcohol would be harmful.
¶ 31. It is also pertinent that both defendant and Richters, the State’s key witness,
admitted to lying in previous statements under oath. Richters initially told police that defendant
had poured alcohol into I.R.’s bag, and then he told police that he did. He also said during a
deposition that he put the alcohol in the bag. He told police that he did not start drinking until after
I.R. went to bed, which is what he initially said at trial; later in the trial, he said he could not
remember when he started drinking.
¶ 32. Defendant initially told police that she and Richters had never talked about giving
I.R. alcohol prior to August 21, but at trial she said they had been talking about it for several weeks.
She told police they were both drinking at a slow pace, and at trial she said that Richters was
“guzzling it down pretty darn fast.” She told police she may have given I.R. Mio, an energy drink,
6
Defendant and Dr. Lukas used different measurements for a shot of vodka. Defendant
said a shot was around thirty cc’s or one ounce. Dr. Lukas said that a shot was around 45 milliliters
or 1.5 ounces.
7
Defendant admitted to administering fifteen cc’s to I.R. Dr. Lukas referred to this amount
as fifteen milliliters.
14
and then at trial she was sure she had not. She did not disclose the alcohol in her initial interviews
with police, and then when she did so, she said that she had poured the vodka into I.R.’s bag. At
trial, she asserted that Richters had poured the vodka.
B. Analysis
¶ 33. When a defendant challenges the sufficiency of the evidence supporting a
conviction, we “review the evidence presented by the State viewing it in the light most favorable
to the prosecution and excluding any modifying evidence, and determine whether that evidence
sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.” State v. Brochu,
2008 VT 21, ¶ 21, 183 Vt. 269, 949 A.2d 1035 (quotation omitted). The fundamental inquiry is
whether “the jury by way of a process of rational inference could conclude beyond a reasonable
doubt that defendant committed the acts for which [she] was charged.” State v. Godfrey, 2010 VT
29, ¶ 18, 187 Vt. 495, 996 A.2d 237 (quotation omitted). If so, we will not disturb the jury’s
considered judgment. Id. “Defendant faces a heavy burden in arguing on appeal that we should
overturn the jury’s unanimous verdict . . . .” Id. ¶ 13; see also State v. Couture, 169 Vt. 222, 226,
734 A.2d 524, 527 (1999) (“[A] judgment of acquittal is proper only if the prosecution has failed
to put forth any evidence to substantiate a jury verdict.”).
¶ 34. In applying this standard of review, we keep in mind that the “jury is the sole judge
of the credibility of the witnesses whether they be expert or nonexpert.” State v. Billado, 141 Vt.
175, 189, 446 A.2d 778, 786 (1982); see also State v. Freeman, 2004 VT 56, ¶ 8, 177 Vt. 478, 857
A.2d 295 (mem.) (“Given the inherent difficulty in evaluating demeanor, mannerisms, and tone of
voice, in addition to the quality of testimony itself, we defer to the factfinder’s determination of
the credibility of the witness, and the persuasive effect of his testimony.”). Although the evidence
may be “susceptible to multiple interpretations, not all of which point toward guilt,” it is not our
role to second-guess the interpretations of the jury. State v. O’Neill, 2019 VT 19, ¶ 35, __ Vt. __,
__ A.3d __. Rather, we determine only “whether the State’s theory of the evidence could fairly
15
support the conviction.” Id.; see also State v. Dragowsky, 169 P.3d 1271, 1272 (Or. Ct. App.
2007) (explaining that in applying this standard of review, appellate court “resolve[s] any conflicts
in the evidence in favor of the state, give[s] the state the benefit of all reasonable inferences that
may properly be drawn, and accept[s] the factfinder’s reasonable credibility choices”).
¶ 35. The elements of involuntary manslaughter derive from the common law, not from
statute. State v. Viens, 2009 VT 64, ¶¶ 13, 17, 186 Vt. 138, 978 A.2d 37. Vermont’s manslaughter
statute provides a penalty but does not define the elements of the crime. Id. ¶ 13; see also 13
V.S.A. § 2304 (providing penalty for manslaughter). To prove that a defendant committed
involuntary manslaughter, the State must show that the defendant caused the death of another
human being, and it must show that the defendant did so with the intent of criminal negligence.
State v. Wheelock, 158 Vt. 302, 310, 609 A.2d 972, 977 (1992), overruled on other grounds by
State v. Congress, 2014 VT 129, 198 Vt. 241, 114 A.3d 1128 (“Involuntary manslaughter is the
killing of another human being as a result of criminal negligence.” (emphasis omitted)); see also
Viens, 2009 VT 64, ¶¶ 17-19 (noting that crime requires “minimum culpability level of criminal
negligence”). A defendant acts with criminal negligence when she
disregard[s] a risk of death or injury of such a nature and degree that
[her] failure to perceive it, considering the nature and purpose of
[her] conduct and the circumstances known to [her], involves a gross
deviation from the standard of care that a reasonable person would
observe in the actor’s situation.
Id. ¶ 17 (quotation and emphasis omitted).
¶ 36. Defendant claims that the evidence was insufficient to establish causation. She
points out that “[t]he jury may employ rational inferences to bridge factual gaps left by
circumstantial evidence, but at some point rational inference leaves off and speculation begins.”
State v. Durenleau, 163 Vt. 8, 14, 652 A.2d 981, 984 (1994). In her view, the evidence supported
a conclusion that defendant gave I.R. one ounce of vodka, which could not have caused his death.
According to defendant, no evidence established who supplied the additional alcohol that did cause
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I.R.’s death. Only conjecture, defendant asserts, could bridge the gap in the evidence and lead the
jury to conclude that it was defendant who supplied the additional alcohol.
¶ 37. We disagree. When we view the evidence in the light most favorable to the State
and exclude modifying evidence, the following facts regarding causation are presented. Defendant
gave I.R. at least one ounce of vodka, and she had additional opportunities to administer more
alcohol to him. Richters did not give I.R. any alcohol. No one else was present who could have
given I.R. alcohol. Although I.R.’s doctors would not have expected one ounce of alcohol to kill
him, he weighed forty-nine pounds at the time; he was extremely vulnerable to fluid imbalances
due to his diabetes insipidus and other conditions; even a small amount of alcohol could be fatal,
and the risk would increase with the amount. Based on this evidence, the jury could reasonably
infer beyond a reasonable doubt that defendant gave I.R. more than one ounce of alcohol and that,
in doing so, she caused his death. Although defendant urges a different theory of the evidence, we
must conclude the evidence is sufficient to prove the State’s theory regarding causation beyond a
reasonable doubt. See O’Neill, 2019 VT 19, ¶ 35.
¶ 38. Defendant also argues that the evidence was insufficient to establish criminal
negligence. She points to the acknowledgment of I.R.’s pediatric neurologist that he would not
have anticipated that one ounce of vodka would have caused I.R.’s death, asserting that if the risk
was not foreseeable, then defendant could not have acted with criminal negligence.
¶ 39. Defendant’s argument fails for two reasons. First, the question is whether
defendant acted with criminal negligence in giving I.R. more than one ounce of alcohol, not just
one ounce, given that there was sufficient evidence for the factfinder to infer that defendant gave
I.R. more than one ounce of alcohol. Second, criminal negligence does not require that defendant
foresaw that she would kill her son if she gave him alcohol. That would be a different standard;
that would be disregarding a certainty of death. Criminal negligence exists when the actor
disregarded a “risk of death or injury.” Viens, 2009 VT 64, ¶ 17 (quotation omitted and emphasis
17
added). And the actor must have disregarded that risk “of such a nature and degree that [her]
failure to perceive it, considering the nature and purpose of [her] conduct and the circumstances
known to [her], involves a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation.” Id. (emphasis omitted).
¶ 40. Here, again viewing the evidence in the light most favorable to the State and
excluding modifying evidence, there was testimony produced at trial regarding I.R.’s vulnerable
condition, his diabetes insipidus, the lack of research on the effects of alcohol for someone with
holoprosencephaly, and the statements by I.R.’s doctors that no one would or should give I.R. any
amount of alcohol. The testimony also showed that defendant was intimately involved in I.R.’s
care and fully understood I.R.’s vulnerable condition, particularly the importance of maintaining
his fluid balance and the dangers posed by dehydration. Further, defendant’s refusal to disclose to
the police that she had given I.R. alcohol on the night that he died, and the fact that she turned on
I.R.’s baby monitor “full blast” because of the alcohol she gave him that night, indicate her own
awareness that alcohol could cause risks for her son. While I.R.’s doctors indicated that they
would not have anticipated that one ounce of alcohol would prove fatal, they clearly testified that
alcohol posed significant risks to I.R. and that those risks would increase with the amount of
alcohol given to him. This evidence was sufficient for the jury to reasonably infer that in giving
I.R. more than one ounce of vodka, defendant acted with criminal negligence.
IV. Unanimity Instruction
¶ 41. Finally, we address defendant’s argument that the court erred in failing to provide
the jury a specific unanimity instruction. Defendant argues that the evidence supported two
competing theories as to the cause of I.R.’s death. One theory was that defendant administered all
the alcohol that caused I.R.’s death. Another theory was that defendant administered the initial
alcohol to I.R.; Richters later added more alcohol to the bag that defendant knew or should have
known about; and together the doses of alcohol killed I.R. Defendant contends that because the
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evidence presented two viable theories regarding causation, the court was required to specifically
instruct the jury that they must decide unanimously on which set of facts supported the conviction.
¶ 42. The facts that are relevant to this argument are as follows. As we explained above,
defendant and Richters presented conflicting testimony at trial. Defendant testified that Richters
poured around half an ounce of vodka into I.R.’s feeding bag, and she added water and connected
the bag to his feeding port. Richters testified that defendant poured around an ounce of vodka into
I.R.’s feeding bag and then connected the bag to his feeding port. They both testified that after
defendant administered the alcohol, I.R. stayed in the kitchen for a short time before going to bed.
¶ 43. In addition to this testimony, defendant suggested that during this time before I.R.
went to bed Ricthers “could have dumped some of his drink into [I.R.’s] feeding/water bag.”
Defendant testified that she was absorbed in playing her video game; Richters got up often to go
to the bathroom; he had to walk behind her to get to the bathroom; and I.R. was also behind
defendant. She said “[i]t wouldn’t take very long at all” to pour vodka into the bag and that she
was not paying attention to Richters at that time.
¶ 44. In closing, the prosecutor criticized defendant’s theory that Richters had poured
additional alcohol into I.R.’s bag without defendant’s knowledge. The prosecutor argued that there
was no proof that any extra alcohol was added, that Richters would have had no motive to give
I.R. more alcohol after he had calmed down, and it was unreasonable to think Richters could have
given I.R. more alcohol without having defendant notice. The prosecutor emphasized that the case
was “not about Walter Richters” and was “about the defendant,” who was the “only person who
admitted actually giving vodka to her son.” She concluded that either Richters or defendant may
have poured the alcohol into I.R.’s bag before defendant attached the feeding bag to I.R.’s feeding
port, but defendant was “the one that actually attached that bag to her son’s stomach,” causing
I.R.s death.
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¶ 45. During jury deliberations, a juror asked: “Can [defendant] be found guilty of
essential element No. 2 [that defendant caused I.R.’s death] even if [Richters] had snuck some
more alcohol into the bag?” After consulting with the prosecutor and defense counsel, the trial
court answered: “In determining whether the State has established each of the essential elements,
you must find the facts from the evidence in the case and you must apply the law that you have
been given in the jury instructions.” The initial jury instructions informed the jury that “[b]efore
[defendant] can be found guilty of the charge, the State must have proven each of the essential
elements beyond a reasonable doubt.” With regard to the element of causation, the court explained
that defendant must be proven to have “caused the death of [I.R.] by causing alcohol to be ingested
by [I.R.], resulting in acute ethanol toxicity and death.” The court also stated, “In order to return
a verdict of guilty or not guilty, you must all agree. Your verdict must be unanimous.” Four
minutes after the court returned its answer, the jury delivered its guilty verdict.
¶ 46. Defendant did not preserve this objection below, so we will reverse only if there is
plain error. State v. Nicholas, 2016 VT 92, ¶ 13, 203 Vt. 1, 151 A.3d 799. “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.” Id.; see also State v. Buckley, 2016
VT 59, ¶ 15, 202 Vt. 371, 149 A.3d 928 (stating four-part test for plain error). “We review jury
instructions as a whole, assigning error only when the entire charge undermines confidence in the
verdict.” State v. Green, 2006 VT 64, ¶ 7, 180 Vt. 544, 904 A.2d 87 (mem.) (quotation omitted).
“The Court will find plain error only in extraordinary cases.” Id.
¶ 47. The Vermont Constitution ensures a defendant’s right to a unanimous jury verdict.
Vt. Const. ch. I, art. 10; see also V.R.Cr.P. 31(a) (“The verdict shall be unanimous.”). Based on
this provision, we have held that “where there is evidence of more than one act that would
constitute the offense charged, the State must specify the act for which it seeks a conviction.” State
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v. Gilman, 158 Vt. 210, 215, 608 A.2d 660, 664 (1992). This is to protect against “the possibility
that part of the jury will base its decision to convict on evidence of conduct different from that
considered by the rest of the jury,” depriving the defendant of “a unanimous verdict based on a
single offense.” Id.
¶ 48. Alternatively, if the State does not make this election, the trial court may provide
“an instruction requiring the jury to be unanimous in determining which act supports a conviction.”
Nicholas, 2016 VT 92, ¶ 22. This is a “specific unanimity instruction,” as distinguished from a
“general unanimity instruction,” which informs the jury generally that they must agree
unanimously on the verdict. Id. ¶¶ 22-24; Green, 2006 VT 64, ¶ 8. A specific unanimity
instruction is required in some cases, and its omission may constitute plain error. For example, in
State v. Couture, the State alleged one count of kidnapping based on the defendant’s allegedly
kidnapping several different people. 146 Vt. 268, 502 A.2d 846. In that context, a general
instruction on unanimity was insufficient because it “permit[ed] the jury to convict [the] defendant
for kidnapping, without assuring its unanimity regarding the essential element of [the] defendant’s
confinement of a particular person.” Id. at 272, 502 A.2d at 849; see also State v. Bellanger, 2018
VT 13, ¶¶ 11, 16, 18, __ Vt. __, 183 A.3d 550 (finding error, but no plain error, when jury
instruction did not require unanimity on which alleged incidents of sexual assault supported
conviction because “it [was] neither logically nor reasonably likely that the jurors would have
reached a different verdict had the trial court given a specific unanimity instruction”).
¶ 49. This is an entirely different kind of case. Here the State did not seek conviction
based on multiple distinct acts. Rather, it alleged that defendant gave I.R. enough alcohol on the
night of August 21, 2014, to cause I.R.’s death. The “alternative theory” to which defendant refers
was suggested by defendant, not the State—that Richters, not defendant, administered sufficient
alcohol to kill I.R. This is not an “alternative theory” of prosecution. It is a defense. A criminal
defendant in a jury trial will always present an alternative theory of events, in which the defendant
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is not guilty. This divergence of viewpoint between the prosecution and the defendant does not
require the court to give a specific unanimity instruction. Nor does the juror’s question convert
the defendant’s version of events into an alternative theory of prosecution.
¶ 50. Defendant contends that the prosecutor “alluded to the alternative theory” and
argued that defendant was responsible for I.R.’s death even if Richters poured alcohol into the bag
because “the jurors could fairly infer that [defendant] knew about it.” This mischaracterizes the
record. The prosecutor’s comments were not alluding to or asserting an alternative theory of
prosecution. Rather, they were rejecting the defense’s theory of the case. In referring to whether
defendant would have noticed, the prosecutor was impugning the credibility of the defense, not
suggesting that defendant knew or should have known about additional alcohol. We see no basis
for disturbing the jury’s conclusion that defendant was guilty.
Affirmed.
FOR THE COURT:
Chief Justice
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