State v. Myers, 26 A.3d 9

Defendant, intoxicated, drove his truck around the complaining witness’s yard and into the home after an argument at the witness’s mobile home.
The incident damaged the home and its surroundings; defendant later fled and was arrested about 30 minutes later after police tracked his truck.
Defendant was charged with eleven crimes including aggravated assault, reckless endangerment, trespass, DUI, leaving the scene of an accident, and resisting arrest; several charges were later dismissed or acquitted by the jury.
Before trial, the State sought to admit pre-incident bar evidence of racist beliefs; the court admitted it as highly probative on motive/intent but found it prejudicial.
During trial, defense voir dire focused on defendant’s racist beliefs; evidence appeared through tattoos and testimony, and the defense elicited related testimony on cross-examination.
On appeal, defendant argues: (a) in limine ruling was wrongful; (b) instruction on simple assault as a lesser included offense was missing; (c) intent instruction created a mandatory inference violating due process; (d) diminished capacity instruction was omitted; (e) necessity defense was not properly considered for leaving the scene; (f) information was flawed; (g) judgment of acquittal should have been granted on one aggravated assault charge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of bar evidence	Evidence was highly probative of motive/intention and part of the act’s context.	Racist content was prejudicial and irrelevant to charged crimes.	No reversible error; harmless given remaining evidence and defense tactics.
Failure to instruct on simple assault	Simple assault is a lesser included offense to aggravated assault.	Court should have instructed on simple assault.	Not error; simple assault not a lesser included offense due to different mental state.
Jury instruction on intent creating mandatory inference	Instruction properly conveyed intent in context of the charges.	Instr. created a mandatory inference violating due process.	Error found (plain error), but not prejudicial under plain-error review; not a constitutional violation here.
Diminished capacity instruction	Omitted instruction should have covered intoxication as to intent for aggravated assaults.	Intoxication evidence warranted diminished capacity instruction.	No reversible prejudice; absence did not alter jury’s consideration given defense focus on other issues.
Necessity defense and information sufficiency	Necessity instruction not required; information sufficiently charged the crimes.	Necessity instruction should have been given; information inadequate for recklessness count and acquittal on aggravated assault.	Necessity instruction properly denied; information sufficient; judgment of acquittal on one aggravated assault charge not warranted.

State v. Maduro, 174 Vt. 302 (2002) (evidence as part of res gestae and probative context)
State v. Hinchliffe, 2009 VT 111 (2009) (recognizes admissibility of prejudicial evidence if probative value substantial)
State v. Dusablon, 142 Vt. 95 (1982) (permissive inference standard; whether instruction left jury free to accept/reject)
State v. Martell, 143 Vt. 275 (1983) (mandatory inference in jury instruction; per se reversible error (overruled later))
State v. Roy, 151 Vt. 17 (1989) (rejects a per se category of plain error for instructional presumptions)
State v. Koveos, 2011 VT 22 (2011) (plain error review; limits on recognizing error categories)
State v. Williams, 2010 VT 77 (2010) (defects in jury instructions and preservation)
State v. Derouchie, 1981 VT 4 (1981) (clarifies burden of proof and related jury instruction considerations)
Sandstrom v. Montana, 442 U.S. 510 (1979) (mandatory inference in jury instruction violates due process when unreciprocated by rebuttal)
Dusablon cited above, 142 Vt. 95 (1982) (permissive inference standard; careful examination of charge as a whole)