State v. McMahon

1

2024 VT 67

State of Vermont v. Joshua McMahon

No. 23-AP-160

Supreme Court of Vermont

October 25, 2024

On Appeal from Superior Court, Bennington Unit, Criminal Division Kerry Ann McDonald-Cady, J.

Jared C. Bianchi, Bennington County Deputy State's Attorney Bennington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and A. Alexander Donn Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Johnson, J. (Ret.) Specially Assigned

¶ 1. WAPLES, J.

Defendant appeals from his conviction for attempted second-degree murder. He argues that the trial court erred in denying his motion for judgment of acquittal, admitting certain testimony at trial, excluding an argument from defendant's closing presentation to the jury, and imposing the sentence. We affirm.

¶ 2. This case arises out of a violent incident that occurred in April 2022 at the Bennington County Coalition for the Homeless. The incident was videorecorded by multiple cameras. The State presented the following evidence at trial.

¶ 3. Defendant arrived at the building on a motorcycle. He parked, removed his gloves, took out a knife, then ran after the victim into the building by entering the back door and running up the stairs. At the entryway to the kitchen, defendant stood behind the victim and held a knife in his hand against the victim's throat. Defendant fell into the kitchen on top of the victim and dropped the knife. While the two were on the floor, defendant again grabbed the knife. In the struggle, defendant pulled his arm against the victim's throat. The two men grappled on the floor, with defendant on top of the victim. Defendant had the knife in his left hand and hit the victim in the head multiple times with his left hand while holding the knife. When a woman entered the room to stop the assault, defendant grabbed a frying pan that was in use on the stove and dumped its contents onto the victim. The woman testified about the incident at trial. Defendant then quickly left the kitchen, got on his motorcycle, and drove away. The whole incident, from defendant's arrival at the building to his hasty departure, was approximately forty-five seconds long.

¶ 4. The victim did not testify at trial. Responding officers testified that the victim had a small scratch or cut on his face and a "little burn" on his arm but was not hospitalized and did not seek any medical treatment. Another witness who saw the end of the altercation testified that the victim was "up walking around, holding his phone, [and] smoking a cigarette" after the attack.

¶ 5. Defendant was tried on two charges: attempted second-degree murder and aggravated assault with a deadly weapon. The jury found him guilty on both counts. Due to double-jeopardy concerns, the State dismissed the aggravated-assault conviction before sentencing. Defendant filed two post-trial motions: a motion for a new trial and a motion for judgment of acquittal. His motion for a new trial argued, in relevant part, that the court abused its discretion by preventing defense counsel from arguing during closing arguments that the victim did not think the matter was "important" because the victim did not testify at trial. Defendant's motion for judgment of acquittal argued that the State failed to put forth any evidence of defendant's intent to kill the victim. The court denied both motions.

¶ 6. Defendant now appeals, arguing that the trial court erred in: (1) denying his motion for judgment of acquittal; (2) allowing a police officer to testify that the victim had Parkinson's disease; (3) preventing defense counsel from arguing in closing that the victim did not testify because the case was not important to him; and (4) relying on information not in the record at sentencing. We consider each argument in turn.

I. Judgment of Acquittal

¶ 7. We review the denial of a motion for judgment of acquittal de novo, using the same standard as the trial court. State v. Wisowaty, 2015 VT 97, ¶ 13, 200 Vt. 24, 128 A.3d 876. In doing so, we determine "whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Perez, 2006 VT 53, ¶ 19, 180 Vt. 388, 912 A.2d 944 (quotation omitted).

¶ 8. "A judgment of acquittal is proper only if the prosecution has failed to put forth any evidence to substantiate a jury verdict." State v. Russell, 2011 VT 36, ¶ 11, 189 Vt. 632, 22 A.3d 455 (mem.). We examine the strength and quality of the evidence, but we "are not triers of fact, and we will not substitute our judgment for that of the jury." State v. Hale, 2021 VT 18, ¶ 8, 214 Vt. 296, 256 A.3d 595 (quotation omitted). Though the evidence may be amenable to multiple interpretations, not all of which point towards guilt, "it is not our role to second-guess the interpretations of the jury." State v. Robitille, 2019 VT 36, ¶ 34, 210 Vt. 202, 213 A.3d 437.

¶ 9. Defendant argues^[*] that attempted second-degree murder "requires the State to prove that the accused had a specific intent to kill." See Roberts, 2024 VT 32, ¶ 42 (citing Haskins, 2016 VT 79, ¶ 37). Specific intent to kill requires that "defendant subjectively intended" to kill the victim. State v. Cahill, 2013 VT 69, ¶ 10, 194 Vt. 335, 80 A.3d 52. "Intent is rarely proved by direct evidence; it must be inferred from a person's acts and proved by circumstantial evidence." State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988). Juries may draw reasonable inferences from circumstantial evidence but may not "bridge evidentiary gaps with speculation." State v. Jones, 2019 VT 3, ¶ 13, 209 Vt. 370, 206 A.3d 153 (quotation omitted).

¶ 10. Defendant argued at the close of the State's case and again in a post-trial motion that he was entitled to a judgment of acquittal because the State failed to offer evidence sufficient to prove, beyond a reasonable doubt, that he intended to kill the victim. Defendant reiterates the same argument on appeal. He contends that the State put forth no evidence showing a connection between defendant and the victim, no evidence of a possible motive, no evidence of serious injuries to the victim, and no evidence of defendant saying anything during the attack. He contends that the State's entire case rested on what can be inferred from fourteen seconds of surveillance footage, and thus that the State did not prove beyond a reasonable doubt that defendant intended to kill the victim.

¶ 11. Defendant asks us to disregard the statement of the woman who witnessed the attack and rely solely on the video evidence. He asserts that the witness's acknowledgement that "whatever the video shows is what happened" means her testimony "adds nothing" to the evidence of defendant's intent to kill. We decline his invitation to disregard her testimony. We consider the evidence in the light most favorable to the State and emphasize that it is the "exclusive province of the jury" to "decide who to believe." State v. Tenney, 143 Vt. 213, 216, 464 A.2d 747, 748 (1983).

¶ 12. Accordingly, we consider whether the witness testimony and video footage can "substantiate [the] jury verdict." Russell, 2011 VT 36, ¶ 11; see also In re M.K., 2015 VT 8, ¶ 15, n.*, 198 Vt. 233, 114 A.3d 107 (explaining that we may review video footage as part of trial court record without making independent findings based on our review of footage).

¶ 13. We conclude that the evidence viewed in the light most favorable to the State supports the jury's finding, beyond a reasonable doubt, that defendant intended to kill the victim. The video footage shows defendant holding the knife to the victim's throat. Defendant hit the victim in the head repeatedly while holding a knife in his hand. A witness to the attack testified that defendant was "trying to slit [the victim's] throat" and that defendant was "aggressively punching" the victim. The witness explained that she pushed defendant "as hard as [she] could to get him off" the victim and that it took "a few pushes." This circumstantial evidence is sufficient to support the inference that defendant attacked the victim with intent to kill him.

¶ 14. Defendant points to out-of-state cases where courts have reversed convictions for insufficient evidence of intent to kill. The court in People v. Reynolds, for example concluded there was insufficient evidence of intent to kill where defendant hit victim in the face "multiple times with the blunt end of a box cutter" while threatening to kill her. 2021 IL App (1st) 181227, ¶ 36, 184 N.E.3d 344. Though that court purported to apply a similar deferential standard of review, that court was also bound by other cases from Illinois that had reversed jury findings of intent to kill as a matter of law. See, e.g., People v. Thomas, 262 N.E.2d 495, 501-02 (Ill.App.Ct. 1970) (concluding there was insufficient evidence of intent to kill where defendant entered victim's apartment, attacked her, repeatedly threatened to kill her, sexually assaulted her, stole money, and fled because "the opportunity for murder was such that there was insufficient proof that defendant intended or attempted to commit that crime"); People v. Jones, 541 N.E.2d 132, 143 (Ill.App.Ct. 1989) (concluding there was insufficient evidence of intent to kill victim where three defendants broke into apartment, beat and sexually assaulted victim's family, and threatened to kill them, because defendants "did not use the knife" in attack against victim and only used gun to beat him); People v. Garrett, 576 N.E.2d 331, 336 (Ill.App.Ct. 1991) (concluding there was insufficient evidence of intent to kill where defen...