State v. Jackowski

State v. Jackowski (2004-455)

2006 VT 119

[Filed 22-Nov-2006]

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,
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.

2006 VT 119

No. 2004-455

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit

Rose Marie Jackowski September Term, 2005

David T. Suntag, J.

William D. Wright, Bennington County State's Attorney, and Daniel M.
McManus, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Stephen L. Saltonstall of Barr Sternberg Moss Lawrence Silver Saltonstall &
Scanlon, P.C., Bennington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. JOHNSON, J. Defendant Rosemarie Jackowski appeals her
conviction for disorderly conduct. Defendant argues that the trial court
improperly instructed the jury to consider whether defendant was
"practically certain" that her conduct would cause public inconvenience or
annoyance, when she was charged with intentionally causing public
inconvenience or annoyance. Defendant also contends that the trial court
erred in excluding from evidence the protest sign she was carrying at the
time of her arrest. We reverse and remand.

¶ 2. Defendant was arrested on March 20, 2003, during an anti-war
demonstration at the intersection of Routes 7 and 9 in Bennington. During
the demonstration, protesters blocked traffic at the intersection for
approximately fifteen minutes. Defendant stood in the intersection,
praying and holding a sign bearing anti-war slogans and newspaper
clippings, including an article accompanied by a photograph of a wounded
Iraqi child. Police officers repeatedly asked defendant to leave the
intersection, and when she refused, she was arrested, along with eleven
other protesters. The State charged them with disorderly conduct, alleging
that defendant and the other protesters, "with intent to cause public
inconvenience and annoyance, obstructed vehicular traffic, in violation of
13 V.S.A. § 1026(5)."

¶ 3. Defendant's intent was the only issue contested during her
one-day jury trial. After several police officers testified for the State,
defendant took the stand, admitting to blocking traffic, but stating that
her only intention in doing so was to protest the war in Iraq, not to cause
public inconvenience or annoyance. In response to the State's motion in
limine to exclude defendant's protest sign, the trial court allowed
defendant to display the sign to the jury and demonstrate how she was
carrying it, but refused to admit it into evidence and allow it into the
jury room. At the conclusion of the trial, the court instructed the jury
on the issue of intent. The court first instructed the jury that the State
could establish defendant's intent to cause public inconvenience or
annoyance by proving beyond a reasonable doubt that she acted "with the
conscious object of bothering, disturbing, irritating, or harassing some
other person or persons." The court then added, "This intent may also be
shown if the State proves beyond a reasonable doubt that the defendant was
practically certain that another person or persons . . . would be bothered,
disturbed, irritated, or harassed." The jury convicted defendant of
disorderly conduct. Defendant appeals.

¶ 4. Defendant first argues that the jury charge was improper
because the trial court failed to instruct the jury to consider whether
defendant acted with the requisite criminal intent. "In reviewing jury
instructions, the relevant inquiry is whether the instructions as a whole
were misleading or inadequate to aid the jury's deliberations." State v.
Shabazz, 169 Vt. 448, 450, 739 A.2d 666, 667 (1999). A jury charge will be
upheld "[i]f the charge as a whole breathes the true spirit and doctrine of
the law, and there is no fair ground to say that the jury has been misled
by it." Harris v. Carbonneau, 165 Vt. 433, 438, 685 A.2d 296, 300 (1996)
(internal quotation marks and citations omitted). The charge will stand
unless it undermines our confidence in the verdict. Shabazz, 169 Vt. at
450, 739 A.2d at 667.

¶ 5. Defendant relies on State v. Trombley to draw a distinction
between offenses that require purposeful or intentional misconduct and
those that require only knowing misconduct. 174 Vt. 459, 462, 807 A.2d
400, 404-05 (2002) (mem.). In Trombley, we held that it was error for the
trial court to instruct the jury to consider whether the defendant in an
aggravated assault case acted "knowingly" or "purposely," when he was
charged with "purposely" causing serious bodily injury. Id. The
aggravated assault statute in Trombley, 13 V.S.A. § 1024(a)(1), had been
amended in 1972 to adopt the Model Penal Code's approach to mens rea, which
distinguishes among crimes that are committed "purposely," "knowingly," and
"recklessly." Id. at 461, 807 A.2d at 404. Under this approach, a person
acts "purposely" when "it is his conscious object to engage in conduct of
that nature or to cause such a result." MPC § 2.02(2)(a)(i). A person
acts "knowingly" when "he is aware that it is practically certain that his
conduct will cause such a result." MPC § 2.02(2)(b)(ii). While the Code's
provisions are not binding on this Court, they are "indicative of what the
General Assembly intended in adopting the legislation modeled on the Code."
Trombley, 174 Vt. at 461, 807 A.2d at 404. Thus, the trial court in
Trombley erred in instructing the jury that it could find that the
defendant acted "purposely" if "he was practically certain that his conduct
would cause serious bodily injury." Id. at 460, 807 A.2d at 403.

¶ 6. Defendant argues that Trombley controls here, as the trial
court used a similarly worded jury charge, and the disorderly conduct
statute was amended at the same time, and for the same reasons, as the
aggravated assault statute in Trombley. (FN1) The State attempts to
distinguish Trombley based on differences in the language of the aggravated
assault and disorderly conduct statutes. Unlike the aggravated assault
statute, the disorderly conduct statute contains the words "with intent"
and not "purposely." Compare 13 V.S.A. § 1026 (establishing mens rea for
disorderly conduct as "with intent to cause public inconvenience, or
annoyance or recklessly creating a risk thereof") with 13 V.S.A. §
1024(a)(1) (listing "purposely," "knowingly," and "recklessly" as culpable
states of mind for aggravated assault). This is a purely semantic
distinction, and it does not indicate a departure from the Code's approach
to mens rea, the adoption of which was "the major statutory change"
accomplished by the Legislature's 1972 amendments. Read, 165 Vt. at 147,
687 A.2d at 948. The Code does not differentiate between "with intent" and
"purposely"; instead, it uses the two terms interchangeably, explaining in
its definitions that " 'intentionally' or 'with intent' means purposely."
MPC § 1.13(12). There is no indication that the Legislature used the
phrase "with intent" to register disagreement with the Code's approach to
disorderly conduct, and such disagreement seems unlikely in the context of
an otherwise unqualified adoption of the Code's approach.

¶ 7. The State cites several cases supporting the proposition that
both "purposely" and "knowingly" causing harm involve some element of
"intent," and thus, that Trombley's distinction between "purposely" and
"knowingly" is illusory. See State v. LaClair, 161 Vt. 585, 587, 635 A.2d
1202, 1204 (1993) (mem.) ("When one causes harm 'purposely' or 'knowingly,'
the person possesses some degree of an intent to harm."); State v. Patch,
145 Vt. 344, 352, 488 A.2d 755, 760 (1985) ("A specific intent crime
includes 'as an essential mental element that the act be done purposefully
or knowingly.' ") (quoting State v. D'Amico, 136 Vt. 153, 156, 385 A.2d
1082, 1084 (1978)). The State also identifies cases approving of
"practically certain" instructions in aggravated assault trials. See State
v. Pratt, 147 Vt. 116, 118, 513 A.2d 606, 607 (1986) (holding that
"practically certain" instruction was proper despite lack of actual injury
to victim); State v. Blakeney, 137 Vt. 495, 501, 408 A.2d 636, 640 (1979)
(stating that specific intent was shown where the defendant was
"practically certain that his conduct would cause serious bodily injury").
Each of these cases predates our decision in Trombley, however, and each
adheres to an outmoded distinction between "specific intent" and "general
intent" crimes-the distinction that the Legislature rejected in adopting
the Code's approach to mens rea. See Trombley, 174 Vt. at 460-61, 807 A.2d
at 403-04 (linking the Legislature's adoption of the Code's approach to
mens rea to the demise of the common-law distinction between general and
specific intent offenses). At common law, crimes committed "purposely" and
those committed "knowingly" would both have been specific intent offenses.
Id. at 461 n.3, 807 A.2d at 404 n.3. In the cases the State cites, the
defendants did not raise the question of statutory construction at issue in
Trombley, so this Court had no opportunity to effectuate the Legislature's
adoption of a more modern approach to mens rea. See LaClair, 161 Vt. at
585-87, 635 A.2d at 1203-04 (approving of jury instruction and affirming
conviction of defendant where State never charged defendant with
"purposely" causing serious bodily injury); Pratt, 147 Vt. at 118, 513 A.2d
at 607 (affirming conviction for aggravated assault where defendant's
objection to jury charge was based on lack of actual serious injury to
victim, which was held irrelevant to the issue of mens rea); Patch, 145 Vt.
at 351-52, 488 A.2d at 760-61 (affirming unlawful mischief conviction where
defendant asked for jury instruction requiring finding of either "malice"
or intent to damage state property, instead of intent to damage property he
did not own); Blakeney, 137 Vt. at 499, 501, 408 A.2d at 639, 640
(affirming aggravated assault conviction where information charged
defendant with causing serious bodily injury both "knowingly" and
"purposely," and where defendant challenged the sufficiency of the
evidence, not the jury charge, with respect to mens rea). These cases
provide no basis for distinguishing or limiting Trombley here. It was
therefore error for the trial court to charge the jury to consider whether
defendant was "practically certain" that her actions would cause public
annoyance or inconvenience.

¶ 8. The State contends that the trial court's error was harmless
and does not require reversal. Under the harmless error standard, we may
find a constitutional or nonconstitutional error harmless only if we can
state a belief that the error was harmless beyond a reasonable doubt.
State v. Carter, 164 Vt. 545, 553-55, 674 A.2d 1258, 1264-66 (1996). In
analyzing the effect of the error in this case, we first address
defendant's assertion that the erroneous jury instruction resulted in the
equivalent of a directed verdict for the State. Our case law indicates
that such errors cannot ordinarily be considered harmless. In State v.
Boise, we held that the trial court's erroneous jury instruction-informing
the jury that the defendant conceded to operating his vehicle on a public
highway-was not harmless because it "removed an element from the jury's
consideration." 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). Despite the
State's argument to the contrary, we found that the instruction had
improperly relieved the State of its burden to prove each element of the
crime beyond a reasonable doubt and could not, therefore, be harmless. Id.
Similarly, in State v. Martell, (FN2) we reversed a conviction where the
trial court judge instructed the jury that it could presume that the
defendant intended the "natural and probable consequences" of his actions.
143 Vt. 275, 278-80, 465 A.2d 1346, 1347-48 (1983). Based on the
instruction, if the jury found that the defendant's actions were
intentional, it was also required to find that the defendant intended the
foreseeable consequences of those actions. This, we determined, amounted
to a directed verdict.

¶ 9. The error here had a similar effect. The trial judge
essentially instructed the jury that it could presume defendant intended to
cause public annoyance or inconvenience if it found that defendant knew
that such annoyance or inconvenience would occur. The instruction may have
led the jury to ignore any evidence of defendant's intent and to convict
solely based on her knowledge. Particularly in a case such as this, where
intent was the only contested issue at trial, we are persuaded that the
effect of the erroneous instruction was analogous to a directed verdict for
the State. In light of defendant's right to a jury trial, we find that
such an error cannot be harmless. (FN3) See Connecticut v. Johnson, 460 U.S.
73, 85-86 (1983) (stating in a plurality opinion that "if the jury may have
failed to consider evidence of intent, a reviewing court cannot hold that
the error did not contribute to the verdict"); United States v. Hayward,
420 F.2d 142, 144 (D.C. Cir. 1969) ("The rule against directed verdicts of
guilt includes . . . situations in which the judge's instructions fall
short of directing a guilty verdict but which nevertheless have the effect
of so doing by eliminating other relevant considerations if the jury finds
one fact to be true.").

¶ 10. The State argues that Trombley should control the
harmless-error analysis in this case. In Trombley, we held that the trial
court's jury instruction on the issue of intent was harmless error. 174 Vt.
at 462, 807 A.2d at 405. In that case, however, intent was not a contested
issue at trial; the defendant effectively admitted intending to cause
serious bodily injury to the victim, and only contested whether he was
justified in doing so by pleading self-defense. Id. Here, intent was the
only issue defendant contested at trial. Defendant claimed that she
intended only to protest the war in Iraq, not to cause public annoyance or
inconvenience. (FN4) The State is correct that defendant could have had
multiple intents, and a jury could certainly have convicted defendant based
on the evidence presented at trial. The law makes a distinction between
intentional and knowing acts, however, and defendant was entitled to have a
jury decide whether causing public annoyance or inconvenience was her
conscious object. The trial court's instruction prevented the jury from
considering that question, effectively removing the element of intent from
the crime, if not directing a guilty verdict. Again, we cannot say that
this error was harmless beyond a reasonable doubt, so we must reverse
defendant's conviction.

¶ 11. The dissent concedes that the jury instruction was
erroneous, but posits that the intent issue was "practically uncontested"
at trial. Post, ¶ 22. This logically leads the dissent to conclude that
Neder v. United States applies to the facts of this case. 527 U.S. 1, 17
(1999) (holding that harmless error is found "where a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error") (emphasis added). Our
review of the record and briefings, however, shows that defendant did in
fact deny intending to annoy or inconvenience the public and further
testified at trial that her only intent was to educate the public and build
support for a mass movement against the war. Whether or not defendant was
credible in presenting that evidence is for a jury to decide; however, in
reaching its conclusion, the dissent necessarily makes that credibility
determination on appellate review. Despite defendant's legally sufficient
argument to the contrary, the dissent stands in the shoes of the jury and
determines, based on circumstantial evidence, that defendant had the
requisite intent to be convicted. Thus, we disagree with the dissent
because, as Justice Scalia noted in his dissent to Neder, "[t]he right to
render the verdict in criminal prosecutions belongs exclusively to the
jury; reviewing it belongs to the appellate court." Id. at 38.

¶ 12. Where, as here, intent is the central-and only-issue, and the
defendant presents minimally sufficient evidence rebutting intent, we
cannot say that an erroneous jury instruction on that issue amounts to
harmless error. This view of the harmless-error analysis is well supported
by our case law and that of states across the country. See State v.
Sargent, 156 Vt. 463, 467-68, 594 A.2d 401, 403 (1991) (reversing
kidnapping conviction based on erroneous jury instruction on intent where
"[d]efendant's case, as presented to the jury, centered on assertions that
he lacked the requisite purpose or knowledge" and defendant "repeatedly
testified that he did not know he was holding the victim against her
will"); see also State v. Ramirez, 945 P.2d 376, 382 (Ariz. Ct. App. 1998)
(error in premeditation instruction was not harmless where premeditation
was "the only contested issue" at trial and substantial evidence supported
defendant's argument); Sharma v. State, 56 P.3d 868, 873-74 (Nev. 2002)
(error instructing jury that defendant could be convicted of attempted
murder based on intent to violate the law instead of intent to kill was not
harmless where defendant devoted "substantial portions" of the case to
disputing specific intent and presented sufficient evidence for jury to
find he did not intend to kill victim); State v. Marrington, 73 P.3d 911,
917 (Or. 2003) (error in admission of evidence was not harmless where it
touched "central factual issue" and case was a "swearing contest"); State
v. Page, 81 S.W.3d 781, 789-90 (Tenn. Crim. App. 2002) (concluding that
"the mens rea of the defendant was indeed the disputed issue at trial," and
therefore error in instruction on mens rea could not be harmless). Our
difference with the dissent is over who decides defendant's guilt, not what
the result should be. Affirming defendant's conviction on the basis of
harmless error is therefore inappropriate, regardless of the weight of the
State's evidence and the likelihood of a guilty verdict had the error not
been made.

¶ 13. Because the issue is likely to recur on retrial, we address
defendant's remaining argument. Defendant contends that the trial court
erred in failing to admit her protest sign into evidence. Defendant
proferred the sign, a collage of editorials opposing the war in Iraq and
news articles describing the effects of the war on Iraqi civilians, as
evidence of her intent. The State moved to exclude the sign based on
Vermont Rule of Evidence 403, arguing that the sign, especially a portion
that included a photograph of a wounded Iraqi child, was substantially more
prejudicial than probative. The trial court considered the issue prior to
defendant's testimony and granted the State's motion in part. The court
found that the sign was relevant, stating, "It's actually part of the res
gestae of the entire offense that's being suggested here," but also
determined that the sign carried a "possibility of inflaming the passions
of jurors." The court allowed defendant to show the sign to the jury to
demonstrate how she used it during the protest and referred to it in
response to a police officer's request that she leave the intersection.
The court refused to admit the sign into evidence, however, and did not
permit the sign into the jury room during the jury's deliberations.
Defendant argues that the sign was not too prejudicial to be admitted into
evidence and allowed into the jury room. Trial court rulings under Rule
403 are "highly discretionary," and we will not reverse such rulings absent
an abuse of discretion. State v. Gibney, 2003 VT 26, ¶ 23, 175 Vt. 180,
825 A.2d 32.

¶ 14. Defendant is actually challenging two separate decisions of
the trial court: its decision not to admit the sign into evidence, and its
decision not to allow the jury to use the sign during its deliberations.
While exhibits admitted into evidence are typically allowed into the jury
room, there are circumstances under which it is appropriate for a court to
exclude exhibits from the jury room. See State v. Buckley, 149 Vt. 663,
663, 546 A.2d 798, 799 (1988) (mem.) (stating that which exhibits are made
available to the jury during its deliberations is in the discretion of the
trial court); 2 J. Strong et al., McCormick on Evidence § 217, at 28-30
(4th ed.1992) (noting that "whether a particular exhibit may be taken by
the jury is widely viewed as subject to discretionary control by the trial
judge," and questioning the practice of sending tangible exhibits to the
jury room).

¶ 15. Here, the trial court was apparently unconcerned about the
prejudice that could result from showing the sign to the jury during
defendant's testimony, but feared the impact of defendant's protest sign on
the jury's deliberations. A ruling admitting the sign into evidence, but
preventing its use in the jury room, would have had the same effect on the
trial. If there was a distinction between the sign's prejudicial effect as
an aid to defendant's testimony and its prejudicial effect on the jury's
deliberations, such a ruling would have clarified that distinction, while
also ensuring the sign's inclusion in the record. See 2 McCormick on
Evidence, supra, § 213, at 11 ("[N]umerous appellate courts have commented
upon the difficulties created on appeal when crucial testimony has been
given in the form of indecipherable references to an object not available
to the reviewing court."). On retrial, the trial court should first
determine the sign's probative value and prejudicial effect for purposes of
its admissibility into evidence and use in the courtroom. If the court
admits the sign into evidence, it should then consider whether some
additional prejudicial effect necessitates its exclusion from the jury
room.

Reversed and remanded for further proceedings consistent with the
views expressed herein.

FOR THE COURT:

______________________________
Associate Justice

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Dissenting

¶ 16. BURGESS, J., dissenting. Confident that the trial court's
misdescription of the intent element in this particular case was harmless
beyond a reasonable doubt , I respectfully dissent. The majority is
correct that the trial court erred in allowing the jury the option to find
defendant guilty of disorderly conduct by acting either "with the conscious
object," that is "with intent," to cause public inconvenience or
annoyance, or by acting with "practical certainty," or "knowingly," that
public inconvenience or annoyance would result from her actions. Ante ¶
7. The majority is also correct that, since State v. Trombley, 174 Vt.
459, 807 A.2d 400 (2002) (mem.), the element of "intentional" action in a
criminal statute derived from the Model Penal Code, such as the disorderly
conduct statute, means to act not "knowingly," but "purposely." Ante ¶
7. The State was required to prove, as it expressly charged, that
defendant obstructed traffic "with intent to cause," rather than
"knowingly" cause, public inconvenience and annoyance. Nevertheless, given
the overwhelming evidence of defendant's actual intent to cause public
inconvenience by obstructing traffic, the error was harmless because "we
can say beyond a reasonable doubt that the result would have been the same
in the absence of the error." State v. Kinney, 171 Vt. 239, 244, 762 A.2d
833, 838 (2000).

¶ 17. Defendant essentially, if not explicitly, admitted the
disorderly conduct at trial. Defendant testified that she deliberately
stepped off the sidewalk to stand in the intersection of Routes 7 and 9,
two public highways in downtown Bennington, holding an anti-war placard.
She admitted that her actions stopped and interfered with traffic, and that
motorists were being inconvenienced and annoyed as a result. Defendant
admitted that, while aware her highway blockade was causing public
inconvenience and annoyance, she repeatedly refused to move out of the way
when requested by officers to do so. Defendant further admitted that she
was strongly tempted to return to the sidewalk, but prayed for the strength
to remain, and then decided to remain, in the street blocking traffic.

¶ 18. Defendant's testimony proved the elements of disorderly
conduct as charged: that she obstructed vehicular traffic "with intent to
cause public inconvenience or annoyance, in violation of 13 V.S.A.
§1026(5)," and did so "purposely" under the Model Penal Code applied in
Trombley, 174 Vt. at 460-61, 807 A.2d 403-04. The Code, § 2.02(2)(a),
states that a person acts "purposely" when:

(i) if the element involves the nature of his conduct or a result
thereof, it is his conscious object to engage in conduct of that
nature or to cause such a result . . . .

Defendant's intentional obstruction of traffic was not disputed. That the
motorists were inconvenienced and annoyed as a result, and defendant's
awareness of same, were not disputed. Having admitted that she was aware
her conduct was causing public inconvenience and annoyance, defendant told
the jury that she resisted the temptation to stop doing it. Defendant told
the jury that, inspired by prayer, she then consciously elected to continue
causing public inconvenience and annoyance by continuing to block the
public way. In Model Penal Code terms, defendant admitted that, as of the
time of deciding to continue obstructing traffic, the "nature of [her]
conduct" in obstructing traffic was to annoy and inconvenience the public,
and admitted that it was her "conscious object to engage in conduct of that
nature." Id.

¶ 19. Nevertheless, defendant also explained to the jury, and
argued on appeal, that in blocking traffic it was not her intent to
inconvenience and annoy people. Defendant denied such an intent, and
testified that she only meant to show her sign, to share her anti-war
information and to show resistance to the federal government. So selective
and implausible is this proposition that it does not achieve even the level
of sophistry. That defendant was also motivated by a non-criminal urge to
communicate and show political opposition does not mutually exclude a
contemporaneous and, in this case, manifest criminal intent to cause public
inconvenience and annoyance.

¶ 20. The majority posits that a finding of harmless error on this
record usurps the jury's function to resolve a credibility contest or weigh
testimony concerning defendant's intent, but there is no real dispute over
what she did and intended. The majority's case citations are inapposite.
There was no "swearing contest" here as described in State v. Marrington,
73 P.3d 911, 917 (Or. 2003), nor was a "substantial portion" of the trial
devoted to contested evidence of intent as in Sharma v. State, 56 P.3d 868,
873-74 (Nev. 2002). Nothing here approached the evidentiary duel over the
influence of intoxication on defendant's intent presented in State v. Page,
81 S.W.3d 781, 789-90 (Tenn. Crim. App. 2002), and no "substantial
evidence" supports the claimed lack of criminal intent as was found on the
record in State v. Ramirez, 945 P.2d 376, 382 (Ariz. Ct. App. 1998). The
dispute over intent in the instant case was not evidentiary, but
rhetorical. In contrast to the kidnapping defendant in State v. Sargent,
156 Vt. 463, 467-68, 594 A.2d 401, 403 (1991), whose repeated testimony
that "he did not know he was holding the victim against her will" was also
supported by psychiatric and police testimony, the defendant here admitted
to deliberately blocking traffic which she knew was causing public
inconvenience and annoyance, and then admitted to deciding to continue
doing so.

¶ 21. My difference with the majority is not over who decides or
what the verdict should be, but that the same guilty verdict was inevitable
given defendant's admissions. Defendant testified that she elected to
continue obstructing traffic after knowing that it was causing public
inconvenience and annoyance. At that point of refusing to move, there can
be no actual, real-world dispute that defendant acted "with intent," or
"purposely," to cause the inconvenience and annoyance patently obvious to
her and to the jury by deliberately obstructing traffic with a placard.
Where it is "clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the [instruction] error," a finding
of harmless error presents no invasion of the jury's fact finding process.
Neder v. United States, 527 U.S. 1, 18 (1999).

¶ 22. This case presents a situation almost identical to Trombley,
where the substantially same erroneous jury instruction was deemed
harmless. Although Mr. Trombley was charged only with "purposely"
assaulting another, the trial court instructed that "purposely" meant that
defendant either "acted with the conscious purpose of causing serious
bodily injury or that he acted under circumstances where he was practically
certain" to cause such injury. Trombley, 174 Vt. at 460, 807 A.2d at 403.
While agreeing that the latter option erroneously extended culpability to
knowing misconduct when only purposeful misconduct was alleged, this Court
found the error harmless beyond a reasonable doubt because defendant
admitted at trial that he intended to inflict such injury as a means of
self-defense. Id. at 462, 807 A.2d at 405. Here, defendant admitted at
trial that upon realizing that her obstruction did cause, and was causing,
public inconvenience and annoyance, rather than moving as requested, she
purposely continued to cause public inconvenience and annoyance.

¶ 23. Review for harmless error requires this court "to inquire if,
absent the alleged error, it is clear beyond a reasonable doubt that the
jury would have returned a guilty verdict regardless of the error. . . .
Thus, analysis under the harmless error doctrine focuses on the evidence of
guilt present in the record." State v. Hamlin, 146 Vt. 97, 106, 499 A.2d
45,52 (1985). Harmless error is found even when necessary elements are
omitted altogether from instructions in situations "where a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error." Neder, 527 U.S. at 17.
The instant case is practically uncontested. Defendant's testimony about
her deliberate obstruction of traffic for the purpose of showing her sign,
sharing her information and resisting government is entirely consistent
with an intent to cause public inconvenience and annoyance. Defendant's
one-word denial (FN5) was belied by her own detailed description of her
perception of the public inconvenience and annoyance resulting from her
conduct and, afterwards, her decision to continue obstructing traffic.

¶ 24. Even if defendant's testimony is not understood as an
admission to having a conscious object to cause public inconvenience and
annoyance, harmless error does not depend on whether defendant "conceded
the factual issue on which the error bore. . . . The question is whether,
'on the whole record . . . the error . . . [is] harmless beyond a
reasonable doubt.' " Rose v. Clark, 478 U.S. 570, 583 (1986) (citation
omitted). Mere denial of the requisite intent does not preclude harmless
error. In cases of Sandstrom error, where trial courts erroneously
instruct the jury to conclusively presume an element of criminal intent
"the inquiry is whether the evidence was so dispositive of intent that a
reviewing court can say beyond a reasonable doubt that the jury would have
found it unnecessary to rely on the presumption." Connecticut v. Johnson,
460 U.S. 73, 97 n.5 (1983) (Powell, J., dissenting). "Thus, the fact that
respondent denied that he had [criminal intent], . . . does not dispose of
the harmless-error question." Rose, 478 U.S. at 583-84 (quotations and
citation omitted).

¶ 25. State v. Boise, 146 Vt. 46, 498 A.2d 495 (1985), and United
States v. Hayward, 420 F.2d 142 (D.C. Cir. 1969), cited by the majority for
holding that an erroneous instruction directing a verdict against a
defendant on an element cannot be harmless error, are inapposite to the
instant case where no verdict was directed. In Boise, we reversed on the
trial court's erroneous jury instruction in a DUI case that a necessary
element-that the conduct at issue must occur upon a public highway-was
"conceded," based on the trial court finding the element proven "as a
matter of law." 146 Vt. at 48, 498 A.2d at 496-97. In Hayward, the appeals
court refused to find harmless error when the trial court erroneously
instructed the jury that it "must" return a guilty verdict if it found the
government disproved defendant's alibi defense. 420 F.2d at 144. Unlike
Boise and Hayward, nothing like a directed verdict was instructed in this
case where the court mistakenly conflated "knowing" and "purposeful"
conduct in its definition of criminal intent, but did not remove the intent
element entirely from the jury's consideration.

¶ 26. Even if the instruction below could be equated to a conclusive
presumption, the majority erroneously relies on Johnson and its progeny,
State v. Martell, 143 Vt. 275, 465 A.2d 1346 (1983), for the proposition
that such an instructional error cannot be harmless. Martell depends on a
Johnson plurality opinion (FN6) for the idea that a conclusive presumption
of criminal intent " 'is the functional equivalent of a directed verdict'
and may never be considered harmless." Martell, 143 Vt. at 279-80, 465 A.2d
at 1348 (citations omitted). This underpinning of Martell, to the extent
it ever existed, no longer stands. In the subsequent matter of Carella v.
California, 491 U.S. 263, 266 (1989), the Johnson plurality was ignored as
any authority when the court remanded a case of unconstitutional
instruction on a conclusive presumption of criminal intent for
harmless-error review.

¶ 27. Explicitly contradicting the supposed holding in Johnson, and
contrary to the majority's logic here, the court in Carrella ruled that a
"Sandstrom error is subject to the harmless error rule." Id. (emphasis
added). (FN7) The Carrella court repeated its earlier holding in Sandstrom
that, although a trial court's "mandatory directions directly foreclosed
independent jury consideration of whether the facts proved established
certain elements of the offenses . . . and even though the jury might have
considered the presumption to be conclusive," the constitutional error was
still subject to harmless-error analysis. Id. Thus, Martell's
proposition, premised on Johnson, and on which the majority now relies,
that an "instruction susceptible to interpretation by a reasonable juror as
requiring a conclusive presumption of an essential element . . . may never
be deemed harmless error," Martell, 143 Vt. at 280, 465 A.2d at 1348, was
not, and is not, the law.

¶ 28. Cited in Carella, and similarly ignoring Johnson, was the
earlier holding in Rose v. Clark that the harmless-error test did apply to
an erroneous rebuttable-presumption instruction that unconstitutionally
shifted the burden of proof on the element of malice from the state to a
murder defendant. 478 U.S. 570, 580-81 (1986). Noting that constitutional
errors do not generally require reversal of criminal convictions, id. at
578-79, the court reiterated that "we have repeatedly reaffirmed the
principle that an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt." Id. at 576.
This principle applies regardless of whether the element is admitted or
contested by defendant at trial, id. at 583, and extends to erroneous
instructions that misdescribe or misstate a necessary element, as in this
case. See Neder, 527 U.S. at 9-10 (summarizing constitutional errors in
instructions subject to harmless-error analysis, including "misstatement of
element," Pope v. Illinois, 481 U.S. 497 (1987), (FN8) and "
'misdescription of an element . . . characterized as an error of
'omission.' " California v. Roy, 519 U.S. 2, 5 (1996)).

¶ 29. If the jury in the instant case followed the erroneous, but
only slightly less demanding instruction on "knowing," instead of the
correct instruction on "purposeful" misconduct, the issue of intent was
neither conclusively presumed nor taken away from the jury's determination.
Either instruction left to the jury the responsibility to find defendant
not guilty or guilty depending on evidence relating to intent. That there
was hardly a substantive difference between the two standards of acting
purposely versus knowingly, when compared to the uncontested proof in this
case, was the product of defendant's testimony. If defendant's testimony
is not an admission to the charge of acting with intent to cause public
inconvenience and annoyance, that exact same object was necessarily
intrinsic to her admittedly conscious intent to obstruct traffic. The
intent to cause public inconvenience and annoyance is inseparable from
defendant's declared decision to remain in traffic after knowing, not as a
practical certainty, but as an absolute certainty, that her conduct was
causing public inconvenience and annoyance. Quite analogous was this
court's observation in State v. Pratt, 147 Vt. 116, 118, 513 A.2d 606, 607
(1986), (FN9) that "[w]hen a person points a revolver in the direction of
another person at close range and pulls the trigger, the practical
distinction between acting with the conscious objective of causing serious
bodily injury and acting with practical certainty that one's conduct will
cause such injury disappears." If anything directed a verdict of guilt in
this case, it was not the court's instruction, but the testimony of
defendant. (FN10)

¶ 30. Accordingly, I would affirm the conviction. I am authorized
to say that Justice Dooley joins in this dissent.

______________________________
Associate Justice

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Footnotes

FN1. See State v. Read, 165 Vt. 141, 147, 687 A.2d 944, 948 (1996) ("In
1972, the Legislature amended Vermont's 'breach of the peace' statute to
follow the 'disorderly conduct' language of [the Code.] . . . The major
statutory change was the added requirement that the State prove, as an
essential element of the offense, that a defendant acted with the intent to
cause public inconvenience or annoyance, or with such recklessness as to
create a risk of public inconvenience or annoyance.") (citations omitted).

FN2. The claim, in note 2 of the dissent, that in Martell we did not
consider that Connecticut v. Johnson, 460 U.S. 73 (1983), was a plurality
opinion is plainly incorrect. To the contrary, we referred to the Johnson
court as "sharply divided" and to the opinion as the "majority's plurality
opinion." Martell, 143 Vt. 275, 279, 465 A.2d 1346, 1348 (1983). Thus, we
were persuaded by the holding in Johnson despite its being a plurality
decision.

FN3. The dissent misunderstands our holding and posits that we are
foreclosing a harmless-error analysis on review of all criminal cases
involving a conclusive presumption or the equivalent (as we have here).
Not so; we recognize that there are situations in which a conclusive
presumption could result in harmless error (e.g., where the defendant does
not contest intent, where the defendant effectively concedes intent by
pleading self-defense or insanity, or where the jury acquits the defendant
on a lesser charge-indicating that they did not employ the presumption).
Here, however, defendant was essentially deprived of a jury trial because
intent was the only issue on which she was tried, she presented sufficient
evidence of non-criminal intent, and the instruction effectively took that
one issue away from the jury.

FN4. The dissent overstates defendant's admissions when it claims that in
Model Penal Code terms, she "admitted that . . . the 'nature of [her]
conduct' in obstructing traffic was to annoy and inconvenience the public,
and . . . that it was her 'conscious object to engage in conduct of that
nature.' " Post, ¶ 17. To reach this conclusion, the dissent necessarily
must infer an intent different than the one explicitly stated by defendant.

FN5. After admitting her awareness of the inconvenient and annoying effects
of her blockade, and her determination to continue her blockade, defendant
was questioned by defense counsel: "Now, I'm going to ask you was that your
intention when you stood in the middle of the four corners with your sign,
that it was it your intention to inconvenience and annoy people," defendant
answered: "No." By analogy, this was akin to claiming, after driving
blindfolded and realizing this caused her to crash into traffic, that when
she continued to do so, she did not intend to cause any collisions.

FN6. The Martell court curiously refers to the "majority's analysis" in
Johnson as "both persuasive and compelling," 143 Vt. at 279, 465 A.2d at
1348, but there is no majority analysis. The Johnson court split 4-4 as to
whether Sanstrom error could never be harmless. The ninth justice did not
join in either opinion, but cast a vote only to affirm the state court's
decision to decline review for harmless error for the benefit of the
prosecution when it had no federal obligation to do so. Johnson, 460 U.S.
at 89-90 (Stevens, J., concurring).

FN7. The Carrella court added, expressly contrary to the logic of Martell
and the majority's analysis here: "Nor is Sandstrom error equivalent to a
directed verdict for the state." 491 U.S. at 266 (quotations omitted).

FN8. Pope also points out that "[t]o the extent that cases prior to Rose
[such as Johnson] may indicate that a conviction can never stand if the
instructions provided the jury do not require it to find each element of
the crime under the proper standard of proof, . . . after Rose, they are no
longer good authority." 481 U.S. at 503, n.7.

FN9. In Pratt we declined to find reversible error in a conviction for
attempted aggravated assault where the trial court instructed the jury that
specific intent could be found if defendant "consciously intended serious
bodily injury or was practically certain his conduct would cause it." 147
Vt. at 118, 513 A.2d at 607.

FN10. The majority's logic stands harmless-error analysis on its head to
prevent a finding of harmless error precisely when the error is most
harmless. The rule of harmless error recognizes that in circumstances when
the state's evidence is overwhelming, and the defense case is weak, the
reviewing court need not overturn a conviction due to an error that is
objectively meaningless. The majority posits, instead, that when the
defense is so weak, such error has the effect of directing the verdict and
so harmless error must be foreclosed when it is most warranted.