State v. Kerri Nicholas, 151 A.3d 799

Defendant was charged with multiple offenses after E.P., a child, sustained numerous bruises and injuries between early September and mid‑October 2012; evidence included teacher observations, photographs, a DCF report, and a nurse’s head‑to‑toe exam noting bruises and petechial marks.
State tried four counts (three domestic‑assault counts and one cruelty to a child); one domestic‑assault count was dismissed at close of evidence; jury acquitted on one domestic‑assault count and convicted on one domestic‑assault (single black eye) and cruelty to a child counts.
The trial court gave a general unanimity instruction but did not instruct the jury to be unanimous as to which specific injury supported the cruelty charge.
Defendant did not request a specific unanimity instruction at trial and did not preserve some objections; he raised plain‑error and cumulative‑prejudice arguments on appeal.
Defense theory: the child was accident‑prone (depth‑perception issue) and the evidence did not connect defendant to the injuries; State’s theory: multiple, closely timed bruises supported an inference of nonaccidental abuse.

Issue	State's Argument	Defendant's Argument	Held
Whether omission of a specific unanimity instruction for child‑cruelty count was plain error	Jury received general unanimity instruction; evidence of multiple bruises was not materially distinct and defense was a generic denial, so any error was not prejudicial	Failure to instruct allowed nonunanimous verdict because jurors could convict based on different injuries	No plain error: even if instruction arguably helpful, omission did not prejudice defendant under rigorous plain‑error standard
Whether cumulative conduct by State warranted mistrial or new trial (undue prejudice)	Incidents (brief E.C.O. reference, teacher’s fleeting testimony/tears, one witness saying defendant no longer lived with mother, nurse’s stray comment on strangulation) were minor, promptly curtailed by court, and not sufficiently prejudicial	Those incidents, plus admission of injuries not linked to defendant, created undue prejudice warranting reversal	No abuse of discretion: trial court properly managed and curtailed improper testimony and any prejudice was minimal

State v. Buckley, 202 Vt. 371, 149 A.3d 928 (Vt. 2016) (plain‑error standard for jury instructions)
State v. Herrick, 190 Vt. 292, 30 A.3d 1285 (Vt. 2011) (instructions viewed in context of whole record)
State v. Couture, 146 Vt. 268, 502 A.2d 846 (Vt. 1985) (need for unanimity where multiple distinct victims/acts exist)
State v. Holcomb, 156 Vt. 251, 590 A.2d 894 (Vt. 1991) (rejection of per se unanimity/plain‑error rule; apply rigorous plain‑error test)
State v. Goyette, 166 Vt. 299, 691 A.2d 1064 (Vt. 1997) (concern where broad definition of offense could permit conviction on disparate acts)
In re Carter, 176 Vt. 322, 848 A.2d 281 (Vt. 2004) (plain‑error requires reasonable likelihood that jurors divided on different factual bases)
United States v. Marcus, 560 U.S. 258 (U.S. 2010) (prejudice prong of plain‑error review requires reasonable probability the error affected outcome)
State v. Prior, 181 Vt. 564, 917 A.2d 466 (Vt. 2007) (no plain error where defendant consistently denied all theories and evidence was intertwined)
State v. Johnson, 158 Vt. 508, 615 A.2d 132 (Vt. 1992) (record‑specific inquiry into whether omission undermines confidence in outcome)