State v. Kolibas, 48 A.3d 610

Kolibas, father of twelve-year-old A.K., was charged with lewd and lascivious conduct and two counts of aggravated assault for drugging two girls with stupefying drugs.
The State alleged defendant intentionally drugged T.F. and A.K. by administering Diazepam (Valium) and Ambien without their consent, under 13 V.S.A. § 1024(a)(3).
The trial court allowed evidence of prior incidents under Rule 404(b) to rebut a claimed mistake defense and read a letter from Kolibas to his wife into evidence, despite marital privilege exceptions.
The court initially instructed the jury that the State need not prove defendant’s specific intent to harm a particular individual, effectively eliminating the element of intent from the aggravated assault charges.
Defense preserved a timely objection to the transferred-intent framing, but the court’s instruction nonetheless instructed the jury on a form of transferred intent that undermined the specific-intent requirement.
The Vermont Supreme Court reversed in part and remanded for a new trial on the aggravated assault counts while leaving the L&L conviction intact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury instructions omitted the element of intent for aggravated assault	Kolibas argues the instruction erred by not requiring proof of specific intent to drug the named victims	Kolibas contends the instruction properly reflected state theory and did not require specific intent	Yes; instructional error deprived defendant of defense and requires new trial on aggravated assaults.
Whether the error was preserved for appellate review	State asserts insufficient preservation under Rule 30	Kolibas had a detailed objection to the transferred-intent instructions	Yes; issue preserved.
Whether the information using 'to wit' properly limited the charges to specific victims and required proof of specific intent	State used 'to wit' to name victims and alleged conduct	Defense relied on need for intent to harm specific person	Yes; charging document required proof of specific intent to drug the named girls.

State v. Kennison, 149 Vt. 643, 546 A.2d 190 (1987) (aggravated assault requires specific intent; cannot shift burden of proof on intent)
State v. D’Amico, 136 Vt. 153, 385 A.2d 1082 (1978) (specific intent element required; act done with conscious objective)
State v. Blakeney, 137 Vt. 495, 408 A.2d 636 (1979) (aggravated assault as a specific-intent crime; burden to prove intent beyond reasonable doubt)
State v. Martell, 143 Vt. 275, 465 A.2d 1346 (1983) (prohibition on shifting proof of intent; relevance to error review)
State v. Aiken, 2004 VT 96, 177 Vt. 566, 862 A.2d 285 (2004) (use of ‘to wit’ in charging documents; gives notice of exact conduct)