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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-304
= &n= bsp; &nbs= p; = &n= bsp; APRIL TERM, 2005
State of Vermont = &n= bsp; &nbs= p; = <= /span>} = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = District Court of Vermont,
Jeannette Carr &n= bsp; &nbs= p; = &n= bsp; &nbs= p; }
} DOCKET NO= . 1261-10-03 Wrcr
Trial Judge: Harold = E. Eaton, Jr.
= ; &= nbsp; &nb= sp;  = ; &= nbsp; &nb= sp;  = ; &= nbsp; &nb= sp; Paul F. Hudson
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Defendant appeals her convictions for simple assault and disorderly conduct, arguing= that the district court erred: (1) by allowing the State to add a new charge to= its information less than one week before the scheduled jury draw; and (2) by erroneously instructing the jury on reasonable doubt. We affirm.
October 2, 2003, the State filed an information charging defendant with si=
assault based on a scuffle that occurred between a Town of Hartford employ=
and her on June 17, 2003. De=
was arraigned on the charge in October 2003. On May 27, 2004, one week before =
scheduled jury draw, the State sought to amend its information by adding a
charge of disorderly conduct.
Defendant opposed the amendment.&n=
On June 2, 2004, the trial court granted the State’s motion,
stating that because there was a factual basis for the new charge within t=
original affidavit, defendant was not unfairly prejudiced by the
amendment. Defendant was arr=
on the new charge the next day, and the jury trial was held over three days
beginning on June 22, 2004.
Following the trial, the jury convicted defendant on both counts.
On the simple assault conviction,
defendant received a suspended two-to-four-month sentence and was fined
$341. On the disorderly cond=
defendant was fined $300.
first argues that the trial court erred by allowing the State to add a new
charge to its information only one week before the scheduled jury draw.
These arguments are unavailing. De= fendant is correct that the salient question is whether she had fair notice to pre= pare an adequate defense against the added charge. See State v. Jewett, 148 V= t. 324, 331 (1986) (citing Reporter’s Notes to V.R.Cr.P. 7 for proposition t= hat Rule 7 “contemplates that prosecutor may amend an information or indictment at any time prior to trial without leave of court provided defe= ndant receives fair notice of charge”); Reporter’s Notes, V.R.Cr.P. 7 (“[T]her= e is no reason to deny the prosecutor the right to file what amounts to a suppleme= ntal information, so long as the fundamental right of the defendant to notice of the charge = is not violated.”); see also State v. Bleau, 132 Vt. 101, 104 (1= 974) (“The allowance of the amendment [to an information] must not prejud= ice the accused’s ability to prepare an adequate defense.”). Here, the trial took place approx= imately four weeks after the State’s motion to amend and three weeks after t= he court granted the motion. In opposing the State’s motion, defendant stated that her deafness would make it difficult to arrange new depositions and meetings with her attorne= y to counter the additional charge, but she did not indicate specifically how s= he would be prejudiced with respect to the new charge. Nor does she do so on appeal. Rather, she states that the trial= court should have sua sponte offered her a continuance rather than grant the State’s motion.
disagree. Defendant informed=
court that a continuance would not cure the prejudice resulting from the
State’s motion because the attorney “of her choice,” who=
been assigned by the court, was planning to move out of state shortly afte=
scheduled hearing. If defend=
believed that she could not prepare an adequate defense against the new ch=
the three weeks before trial, she should have explained why additional tim=
necessary and sought a continuance.
Cf. State v. Holden, 136 Vt. 158, 160 (1978) (where amended
information charged additional offense from one originally charged, trial =
erred by not granting defendant’s request for continuance to prepare
defense to new charge and to consider whether to seek private counsel).
Next, defendant argues that the court erred by giving the jury the following instruction on reasonable doubt:
A reasonable doubt is a real doub= t based on reason and common sense which comes from a fair and rational considerat= ion of the evidence or lack of evidence in this case. It is not a vague, speculative or imaginary doubt. No Defendan= t may be convicted on suspicion or conjecture.
Defendant objected that the term “real doubt” suggested to the jury that= the doubt must be serious or unquestionable.&= nbsp; On appeal, defendant argues that serious is the same as substantial= or grave, exactly the objectionable terminology that resulted in a reversal i= n Cage v. Louisiana, 498 U.S. 39 (1990) overruled on other grounds by Este= lle v. McGuire, 502 U.S. 62, 72 n.4 (1991). Defendant exaggerates the similar= ity of the instructions in Cage and the instant case; indeed, the two instructions are not even comparable.&nbs= p; In Cage, the trial court instructed the jurors that their do= ubt about the defendant’s guilt “must be such doubt as would gi= ve rise to a grave uncertainty,” and that the doubt must be “= an actual substantial doubt” amounting to a “moral certain= ty.” Id. at 40. The Supreme Court reversed the co= nviction because the instruction “equated a reasonable doubt with ‘grave uncertainty’ and an ‘actual substantial doubt,’ and stat= ed that what was required was a ‘moral certainty’ that the defend= ant was guilty.” Id= . at 41.
Here, the better practice would be to avoid using the word “real,” b= ut, read as a whole, the instruction plainly informed jurors that real was the opposite of speculative or imaginary, and that they could not convict defe= ndant based on mere suspicion or conjecture.&nb= sp; We find no reversible error, if any error at all. Cf. State v. Francis, 151 = Vt. 296, 302 (1989) (finding no reversible error but concluding that trial cou= rts should avoid comparing beyond-a-reasonable-doubt standard to decisions of personal importance and telling jurors that they should be able to assign specific reason to their doubt).
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Frederic W. Allen, Chief Ju= stice (Ret.),