Appeal of Brattleboro child cruelty conviction denied

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BRATTLEBORO — A man convicted in 2014 of domestic assault and child cruelty lost his bid to be granted a new trial.

On Friday, in a majority opinion, the Vermont Supreme Court ruled that Kerri Nicholas, 28, had not sufficiently argued the need for a new trial. Nicholas had argued that his conviction should be reversed because "jury instructions allowed for a non-unanimous verdict" and that the prosecution's conduct at trial "created a risk of undue prejudice with respect to both counts."

Nicholas was originally charged with four counts of domestic assault in addition to one count of child cruelty following an investigation into a young child who had received a black eye that was "black, purple and pink ... that witnesses testified was almost swollen shut."

According to the state Supreme Court decision, evidence presented at trial involved multiple injuries to the child victim, including black eyes and bruises to the face, forearm, neck, ribs and stomach. That evidence was central to Nicholas' appeal.

The majority of the Supreme Court noted "the State made no attempt to tie the multiple bruises to a specific day or instance; rather, it relied upon the fact that defendant's accident defense to the child-cruelty charge was not credible, given the number and nature of the bruises occurring within a relatively short time frame."

But in her dissenting opinion, Justice Beth Robinson noted "the question here is not whether there was sufficient evidence to convict defendant of child cruelty on that basis; it is whether it is likely that one or more jurors voted to convict defendant of child cruelty on the basis of evidence other than the single black eye. On this record, that is highly likely."

Robinson wrote that the prosecution invited the jury to convict Nicholas on the basis of any or all of the injuries the child sustained. "(I)t is likely that some jurors convicted [the] defendant on the basis of one incident or set of incidents, while other jurors convicted him on the basis of another."

Robinson noted that during an appeal filed with the trial court, the deputy state's attorney "opined with great confidence that the jury's conviction of child cruelty was based on the evidence of ... bruising, not on the single black eye."

Nicholas did not serve time on the conviction. During sentencing, he received a zero- to six-month sentence on the cruelty count. On the domestic assault, the trial court ordered a consecutive six- to nine-month sentence, with that jail time suspended in favor of two years of probation.

Nicholas argued that the trial judge erred because he did not make clear that the jury had to be unanimous as to which injury he caused to the child and that multiple incidents throughout the trial collectively created an undue risk of prejudice warranting a reversal.

"On multiple occasions, this Court has emphasized that a claim of error alleging the failure of the State to make an election or the trial court to give a specific unanimity charge in a multiple-acts case is waived on appeal unless the defendant can demonstrate plain error," wrote the majority in its decision denying Nicholas' appeal, "(but) we reverse 'only in rare and extraordinary cases where we find that the omission in the charge and in the State's actions so affects the substantial rights of the defendant that we will notice the error despite lack of proper objection.'"

The justices also noted that "Most courts that have addressed the issue, however, have held 'that a specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus [action or conduct that is a constituent element of a crime, as opposed to the mental state of the accused] of a single criminal offense.' ... In this case, although the State also charged defendant with multiple counts of domestic assault based on specific bruises first noticed on specific dates, it charged defendant with cruelty to a child based on a myriad of bruises all over her body within a relatively short period of time — a little over a month. At trial the State's principal argument — supported by medical evidence and testimony—was that the number and nature of the bruises on the child within a relatively short period of time pointed to child abuse and not accidental injury."

The majority also commented on Robinson's dissent that it was "highly likely" that one or more jurors found defendant guilty of child cruelty based exclusively on one or more injuries other than the single black eye, "but we know that the jury unanimously convicted defendant on that charge and that defendant did not dispute the distinguishing element of intent based on the evidence presented to the jury. At best, the dissent's 'highly likely' characterization is speculative and cannot be the basis for a finding of plain error. ... (W)e conclude that the trial court was well within its discretion in denying defendant's motion for a new trial on the basis of the cumulative prejudice from the above instances, and thus we affirm defendant's convictions."

Bob Audette can be contacted at 802-254-2311, ext. 160.


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